A monthly publication of the International Law and Immigration Section of the California Lawyers Association.
Editor-in-Chief, Payal Sinha
*Contributions by Radhika Balaji
U.S. Immigration and Citizenship Services (USCIS) has decoupled the Employment Authorization Document (EAD) and the Advance Parole Document for Adjustment of Status (AOS) for applicants*
Effective Feb 1, 2022, USCIS announced that for Permanent Residency Applicants, USCIS will no longer issue the “combo-card” that serves as both employment and travel authorization, to improve efficiency and reduce the processing time for EAD. USCIS will decouple the applications for EAD and Advance Parole (AP) and issue separate documents for each application. The delay in processing EAD applications has resulted from backlogs during the pandemic. Therefore, USCIS will first process the EAD application, and if approved issue the EAD card without an annotation for AP. Thereafter, the AP application will be adjudicated, and a separate AP document will be issued if approved.
The Department of Homeland Security (DHS) announced the extension of flexibility for I-9 verification of remote employees until October 31, 2022.*
DHS announced flexibility with Employment Eligibility Verification (Form I-9) under Section 274A of the Immigration and Nationality Act (INA) as a result of precautions that employers and employees have been exercising due to the COVID-19 pandemic that was in effect until October 31, 2022.
Electronic Systems for Travel Authorization (ESTA) fees have been increased from $14 to $21 from May 20, 2022.*
Effective as of May 20, 2022, The ESTA fee increased from $14 to $21, in accordance with the Customs and Border Patrol (CBP) Final Rule (87 FR 30769) and the collection of the new fee is effective May 26, 2022. Travelers with an approved ESTA do not have to re-apply since the ESTA is valid for up to 2 years.
National Visa Center (NVC) suspended the Telephone Inquiry System*
Effective as of May 23, 2022, the NVC suspended the Public Telephone Inquiry line to address critical backlogs. The Public Inquiry Form can be used to contact NVC on an immigrant visa and nonimmigrant visa inquiries.
Automatic Extension of Employment Authorization (EAD) for certain categories of renewal applicants has been extended from 180days to 540 days.*
The Department of Homeland Security (DHS) has issued a new temporary final rule which extends the Automatic Extensions to expiring EADs for certain renewal eligible applicants categories if extension applications are filed in a timely manner. As per this rule, the automatic extension period will increase from up to 180 days to up to 540 days to address the current increased processing times for EAD applications to address a lapse in employment authorization when the applications remain pending. This rule is effective from May 4, 2022, until October 15, 2025.
For I-9 verification purposes, employees can submit their expired EAD cards (and unexpired Form I-94 for H-4, E, and L-2 spouses) along with their EAD receipt notice (Form I-797, Notice of Action). For receipt notices issued after May 4, 2022, the automatic extension of 540 days will be annotated and for those notices issued before May 4, 2022, a new I-797, Notice of Action with the automatic extension of 540 days will be reissued. Note that the old receipt notice with the 180 days of the automatic extension will still meet the regulatory requirement.
U.S. Immigration and Citizenship Services (USCIS) will implement Premium Processing in phases for certain previously filed I-140 petitions under the EB-1 and EB-2 categories.*
To reduce backlogs and provide relief to work permit holders, USCIS announced in March of 2022 that it will expand premium processing to a variety of benefit applications. On May 24, 2022, USCIS further announced that premium processing will be implemented for certain previously filed I-140 Petitions filed under EB-1 and EB-2 categories in phases.
- For E13 multinational executive and manager petitions received on or before January 1, 2021, USCIS will accept premium processing requests starting June 1, 2022.
- For E13 multinational executive and manager petitions received on or before March 1, 2021, USCIS will accept premium processing requests starting July 1, 2022.
- For E21 National Interest Waiver (NIW) petitions received on or before March 1, 2021, USCIS will accept premium processing requests starting July 1, 2022.
USCIS noted that a new (initial) premium processing request with the I-140 will not be accepted at this time.
Cater v. USCIS; U.S. Immigration and Citizenship Services (USCIS) and National Archives and Records Administration (NARA) sued for Naturalization delays.*
A lawsuit has been filed at the federal district court of Massachusetts challenging USCIS’ inordinate delays in processing the Naturalization (N-400) applications which were filed in 2020, that prevented applicants from becoming U.S. Citizens.
The suit seeks to require the NARA and USCIS to prioritize the retrieval of immigration files, and USCIS to schedule naturalization interviews without further delay. The delays are caused because their immigration files remain in storage.
The agency has not prioritized retrieving these immigration records (known as “A-files”) and scheduling interviews for people who have pending naturalization applications. Through the suit, the Plaintiffs are seeking NARA and USCIS to prioritize scheduling their interviews and adjudicating their applications in a timely manner. Concerns arise from their inability to vote in the mid-term electoral process in 2022.
On May 13, 2022, USCIS published two new forms for regional center designation under the EB-5 Immigrant Investor Program: Form I-956, Application for Regional Center Designation, and Form I-956H, Bona Fides of Persons Involved with Regional Center Program.
On March 15, 2022, President Biden signed a law that made changes to the EB-5 program, authorized a new EB-5 Immigrant Investor Regional Center Program, and directed that certain “grandfathered” immigration benefits be processed. The Department resumed processing visas associated with the Regional Center Program based on approved USCIS Forms, including those filed on or before the expiration of the previous regional center program on June 30, 2021. Further, pursuant to the new legislation, the processing of visas associated with the new Regional Center Program may begin 60 days after the enactment of the law.
Department of Homeland Security (DHS) Announces Registration Process for Temporary Protected Status (TPS) for Afghanistan
On May 19, 2022, The DHS posted a Federal Register notice on TPS for Afghanistan, for public inspection. This notice provides information about how to register for TPS under Afghanistan’s designation. On March 16, 2022, Secretary announced the 18-month designation of Afghanistan for TPS. The registration process begins on May 20, 2022. All individuals who want to request TPS under the designation of Afghanistan must file an application.
Department of Homeland Security (DHS) Announces Registration Process for Temporary Protected Status (TPS) for Cameroon
As of April 14, 2022, The DHS announced the designation of Cameroon for TPS for 18 months. Only individuals who are already residing in the United States will be eligible for TPS. Individuals who arrive in the United States after April 14, 2022, will not be eligible for TPS. The Federal Register notice will provide instructions for applying for TPS and an Employment Authorization Document (EAD). TPS applicants must meet all eligibility requirements and undergo security and background checks.
U.S. Immigration and Citizenship Services (USCIS) announces Online Filing for Deferred Action for Childhood Arrivals (DACA) Renewal Forms
As of April 14, 2022, USCIS announced that individuals who previously received deferred action under DACA may now file Form I-821D, Consideration of Deferred Action for Childhood Arrivals (DACA Applications) online.
To file DACA Applications, a DACA requestor must first create a USCIS online account, which provides a convenient and secure method to submit forms, pay fees and track the status of any pending USCIS immigration request throughout the adjudication process. There is no cost to set up an account, which offers a variety of features, including the ability to communicate with USCIS through a secure inbox and respond online to Requests for Evidence.
Consistent with a court order issued in State of Texas, et al., v. United States of America, et al., 1:18-CV-00068 (S.D. Tex. July 16, 2021), the DHS continues to accept the filing of both initial and renewal DACA requests, as well as accompanying requests for employment authorization. However, under the July 16, 2021, order issued by the U.S. District Court for the Southern District of Texas, DHS is prohibited from granting initial DACA requests.
Department of Homeland Security (DHS) Announces Registration Process for Temporary Protected Status (TPS) for Ukraine and Sudan
As of April 18, 2022, The Department of Homeland Security (DHS) released Federal Register notices on Temporary Protected Status (TPS) for Ukraine and Sudan. These notices provide information about how to register for TPS under each country’s designation for 18- months.
Individuals applying for TPS under the Ukraine or Sudan designations must submit TPS Applications, during the 18-month initial registration period that runs from April 19, 2022, through October 19, 2023. Ukraine and Sudan TPS applicants are eligible to file Form I-821 online. When filing a TPS application, applicants can also request an Employment Authorization Document.
Immigration and Customs Enforcement (ICE) Issues Clarifying Memo on Prosecutorial Discretion in Immigration Court
On April 3, 2022 ICE’s issued a memo to the Office of Principal Legal Advisor (OPLA) attorneys on civil immigration enforcement and prosecutorial discretion (known informally as the Doyle Memorandum) takes effect on April 25, 2022. The Doyle Memorandum requires OPLA attorneys to seek management review solely where they determine a case is a priority or to change a previous priority determination, not where they initially classify a case as a nonpriority. The Doyle Memorandum then goes on to discuss how OPLA should exercise Prosecutorial Discretion, as early in the proceedings as possible.
Under the Doyle Memorandum, appellate advocacy should focus on priority cases, “absent a compelling basis to appeal a nonpriority case.” However, OPLA attorneys may continue to reserve appeal to ensure a fully articulated, reasoned decision by the immigration judge. Keeping in mind compelling discretionary factors in any given case, OPLA attorneys may take those appeals needed to seek clarity on an important legal issue or correct a systematic legal error but must do so judiciously.