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Practice Alert: Delayed Production of Employment Authorization Documents (EADs) and Lawful Permanent Resident (LPR) Cards
AILA Doc. No. 20071530 | Dated July 14, 2020
In recent weeks, AILA has received reports from members of delays in the issuance of EADs and green cards for some employment-based, family-based, and asylum-based immigration applications.
On July 9, the Washington Post reported that USCIS has shut down printing of documents evidencing legal status and work authorization for immigrants and nonimmigrants, including green cards and employment authorization documents (EAD), in Corbin, KY, weeks ago, and USCIS has scaled back printing at the second facility in Lee’s Summit, MO, resulting in massive delays. USCIS blames “financial concerns,” for their failure to renew the contract with the printing company despite never alerting Congress. According to a USCIS, approximately 50,000 green cards and 75,000 other employment authorization documents promised to immigrants and nonimmigrants haven’t been printed.
On March 18, U.S. Citizenship and Immigration Services temporarily suspended in-person services at its field offices, asylum offices, and application support centers (ASCs) to help slow the spread of coronavirus (COVID-19). USCIS is readying offices to reopen on or after June 4. Employees in these offices are continuing to perform mission-essential services that do not require face-to-face contact with the public while the offices are closed.
While offices are temporarily closed, USCIS will continue to provide limited emergency in-person services. Please call the USCIS Contact Center for assistance with emergency services.
USCIS field offices will send notices to applicants and petitioners with scheduled appointments and naturalization ceremonies impacted by the extended temporary closure. USCIS asylum offices will send interview cancellation notices and automatically reschedule asylum interviews. When the interview is rescheduled, asylum applicants will receive a new interview notice with the new time, date and location of the interview. When USCIS again resumes operations for in-person services, USCIS will automatically reschedule ASC appointments due to the temporary office closure. Individuals will receive a new appointment letter in the mail. Those who had InfoPass or other appointments must reschedule through the USCIS Contact Center once field offices are open to the public again. Please check to see if the respective office has been reopened before calling the Contact Center.
Please also visit uscis.gov/coronavirus for updates. For the latest information on the status of an office, visit https://www.uscis.gov/about-us/uscis-office-closings.
President Trump signed an executive order on April 22, 2020. The executive order applies to those seeking U.S. permanent residency from outside the United States. It does not apply to those already in the U.S. applying for permanent residency. In fact, the I-485 applications are still being processed. Only in-person I-485 interviews and biometrics appointments have been suspended.
The suspension and limitation on entry to the U.S. based on the executive order applies to only those who:
1. are currently outside the U.S.;
2. do not have an immigrant visa that is valid before April 22, 2020; and
3. do not have an official travel document other than a visa that is valid. (This does not apply to those who possess a valid travel document (advanced parole) issued before April 22, 2020.)
The suspension and limitation on entry to the U.S. does not apply to U.S. citizens or lawful permanent residents. The exemption also includes any alien seeking to enter the U.S. on an immigrant visa as a physician, nurse, or other healthcare professional. Any alien whose entry would be in the national interest are also exempt. However, unlike the national interest assessed by the USCIS for EB2 National Interest Waiver petitions, the national interest for this exemption will be assessed by the Dept. of State. Thus, an approval of a NIW petition will not automatically qualify for this exemption. We will have to see how the U.S. Embassies or Consulate offices implement this executive order.
In sum, immigrant visa applications through consular processing will be suspended for the next 60 days. However, I-485, Application to Register Permanent Residence or Adjust Status will continue to be processed and will not be affected by this executive order.
WASHINGTON—U.S. Citizenship and Immigration Services today announced that H-1B cap-subject petitions for fiscal year (FY) 2021, including those petitions eligible for the advanced degree exemption, may now be filed with USCIS if based on a valid selected registration.
A petitioner is only eligible to file an FY 2021 H-1B cap-subject petition if they electronically registered the beneficiary in the H-1B registration process and USCIS selected the registration submitted for the beneficiary through the random selection process.
The H-1B electronic registration process was well-received by users, who provided a high satisfaction score with the system. Nearly 275,000 unique registrations were submitted during the initial registration period. Roughly 46% of all registrations were for prospective beneficiaries with U.S. advanced degrees. There were more than 40,000 registration accounts created, and nearly 81% of submitted registrations were for potential beneficiaries from India (67.7%) and China (13.2%). Prior to the launch of the electronic registration system, USCIS conducted robust public outreach to ensure users were equipped to effectively use the new system.
“The new H-1B electronic registration system has been an overall success. As a result of this modernized process, the amount of paper and data exchanged between USCIS and petitioners will dramatically decrease this year,” said USCIS Deputy Director for Policy Joseph Edlow. “The positive feedback received by users of the H-1B registration system, the limited amount of technical issues experienced during the registration period, and the ability to immediately respond to questions from registrants was the result of a comprehensive effort developed over the course of more than a year. This new registration system is one of many ways USCIS is improving the H-1B program.”
An H-1B cap-subject petition must be properly filed within the period indicated on the relevant registration selection notice. The period for filing the H-1B cap-subject petition will be at least 90 days. Online filing is not available for H-1B petitions, so petitioners seeking to file H-1B petitions must do so by paper. Petitioners must include a printed copy of the applicable registration selection notice with the FY 2021 H-1B cap-subject petition.
Petitioners filing H-1B cap-subject petitions, including those petitions eligible for the advanced degree exemption, must still establish eligibility for petition approval at the time the petition is filed and through adjudication, based on existing statutory and regulatory requirements. Selection in the registration process does not relieve the petitioner from submitting evidence or otherwise establishing eligibility, as registration only pertains to eligibility to file the H-1B cap-subject petition.
For more information, visit the H-1B Electronic Registration Process page.
For more information on USCIS and its programs, please visit uscis.gov or follow them on Twitter (@uscis), Instagram (/uscis), YouTube (/uscis), Facebook (/uscis) and LinkedIn (/uscis).
WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) will implement the Inadmissibility on Public Charge Grounds final rule (“Final Rule”) on Feb. 24, 2020, except for in the State of Illinois where the rule remains enjoined by a federal court as of Jan. 30, 2020. Under the Final Rule, USCIS will look at the factors required under the law by Congress, like an alien’s age, health, income, education and skills, among others, in order to determine whether the alien is likely at any time to become a public charge.
The Final Rule, issued in August and originally scheduled to be effective in October, prescribes how DHS would determine whether an alien is inadmissible to the United States based on the alien’s likelihood of becoming a public charge at any time in the future, as set forth in the Immigration and Nationality Act. The Final Rule also addresses USCIS’ authority to issue public charge bonds in the context of applications for adjustment of status. Finally, the Final Rule includes a requirement that aliens seeking and extension of stay of change of status demonstrate that they have not received public benefits over the designated threshold since obtaining the nonimmigrant status they seek to extend or change.
“Self-sufficiency is a core American value and has been part of immigration law for centuries. President Trump has called for long-standing immigration law to be enforced and U.S. Citizenship and Immigration Services is delivering on this promise to the American people,” said Ken Cuccinelli, the Senior Official Performing the Duties of the Deputy Secretary for DHS. “By requiring those seeking to come or stay in the United States to rely on their own resources, families and communities, we will encourage self-sufficiency, promote immigrant success and protect American taxpayers.”
Except for in the State of Illinois, USCIS will only apply the Final Rule to applications and petitions postmarked (or submitted electronically) on or after Feb. 24, 2020. For applications and petitions that are sent by commercial courier (e.g., UPS/FedEx/DHL), the postmark date is the date reflected on the courier receipt. The Final Rule prohibits DHS from considering an alien’s application for, certification or approval to receive, or receipt of certain non-cash public benefits before Oct. 15, 2019, when deciding whether the alien is likely at any time to become a public charge. In light of the duration of the recently-lifted nationwide injunctions and to promote clarity and fairness to the public, DHS will now treat this prohibition as applying to such public benefits received before Feb. 24, 2020. Similarly, the Final Rule prohibits DHS from considering the receipt of public benefits by applicants for extension of stay and change of status before Oct. 15, 2019 when determining whether the public benefits condition applies, and DHS will now treat this prohibition as applying to public benefits received on or after Feb. 24, 2020.
USCIS will post updated forms, submission instructions, and Policy Manual guidance on the USCIS website during the week of Feb. 3, 2020, to give applicants, petitioners, and others ample time to review updated procedures and adjust filing methods. After Feb. 24, 2020, everywhere except in the State of Illinois, USCIS will reject prior editions of forms if the form is postmarked on or after Feb. 24, 2020. If USCIS receives an application or petition for benefits using incorrect editions of the forms, USCIS will inform the applicant or petitioner of the need to submit a new application or petition using the correct forms.
USCIS will continue to release information through its website in the weeks leading to the rule’s implementation date, including in the event that the injunction Illinois is lifted. This will include an update to the USCIS Policy Manual.
In the coming weeks, the agency is planning to hold a public engagement for immigration attorneys, industry representatives, and other relevant groups to discuss the final rule.
DHS remains enjoined from implementing the Final Rule in the State of Illinois. Should the injunction in Illinois be lifted, USCIS will provide additional public guidance.
For more information on USCIS and its programs, please visit uscis.gov or follow us on Twitter (@uscis), Instagram (/uscis), YouTube (/uscis), Facebook (/uscis), and LinkedIn (/uscis).
USCIS Announces Implementation of H-1B Electronic Registration Process for Fiscal Year 2021 Cap Season
Release Date: Dec. 6, 2019
WASHINGTON—U.S. Citizenship and Immigration Services today announced that it has completed a successful pilot testing phase and is implementing the registration process in the next H-1B lottery. Employers seeking to file H-1B cap-subject petitions for the fiscal year 2021 cap, including those eligible for the advanced degree exemption, must first electronically register and pay the associated $10 H-1B registration fee.
The electronic registration process will dramatically streamline processing by reducing paperwork and data exchange, and will provide an overall cost savings to petitioning employers.
Under this new process, employers seeking H-1B workers subject to the cap, or their authorized representatives, will complete a registration process that requires only basic information about their company and each requested worker. USCIS will open an initial registration period from March 1 through March 20, 2020. The H-1B random selection process, if needed, will then be run on those electronic registrations. Only those with selected registrations will be eligible to file H-1B cap-subject petitions.
Historically, employers filed their full, and often voluminous, H-1B cap-subject petitions with USCIS, after which USCIS would select eligible petitions through a random selection process. This process resulted in unnecessary paperwork and incurred mailing costs for both petitioners and the agency.
“By streamlining the H-1B cap selection process with a new electronic registration system, USCIS is creating cost savings and efficiencies for petitioners and the agency, as only those selected will now be required to submit a full petition,” said USCIS Deputy Director Mark Koumans. “The agency completed a successful pilot testing phase, which included sessions with industry representatives, and implementation of the registration system will further the goal of modernizing USCIS from a paper-based to an online-filing agency.”
USCIS will post step-by-step instructions informing registrants how to complete the registration process on its website along with key dates and timelines as the initial registration period nears. USCIS will also conduct public engagements and other outreach activities to ensure registrants and interested parties are familiar with the new registration system. The agency may determine it is necessary to continue accepting registrations, or open an additional registration period, if it does not receive enough registrations and subsequent petitions projected to reach the numerical allocations.
DHS formally created the H-1B registration requirement in the final rule, Registration Requirement for Petitioners Seeking To File H-1B Petitions on Behalf of Cap-Subject Aliens (PDF), published on Jan. 31, and effective on April 1, 2019. DHS intends to publish a notice in the Federal Register in the coming weeks to formally announce implementation of the H-1B registration system and provide additional details on the process.
On Nov. 8, 2019, DHS published a final rule establishing a $10 H-1B registration fee. The registration fee final rule is effective on Dec. 9, 2019, and will apply to registrations submitted during the initial and future registration periods.
USCIS has completed data entry for all fiscal year 2020 H-1B cap-subject petitions selected in the computer-generated random selection process, including those selected under the U.S. advanced degree exemption. As in previous years, USCIS will now begin returning all H-1B cap-subject petitions that USCIS did not select and will issue an announcement once USCIS are done notifying petitioners. Due to the volume of filings, USCIS cannot provide a definite time frame for returning unselected petitions. USCIS ask petitioners to wait to inquire about the status of their cap-subject petitions until they receive a receipt notice or an unselected petition that USCIS have returned.
Additionally, USCIS may transfer some Form I-129 H-1B cap-subject petitions between the Vermont Service Center and the California Service Center to balance the workload and enhance efficiencies. If USCIS transfer your case, you will receive notification in the mail. After receiving the notification, please send all future correspondence to the center processing your petition.
USCIS has received a sufficient number of petitions projected as needed to reach the congressionally-mandated 65,000 H-1B visa regular cap for fiscal year 2020. USCIS will next determine if we have received a sufficient number of petitions to meet the 20,000 H-1B visa U.S. advanced degree exemption, known as the master’s cap.
The agency will reject and return filing fees for all unselected cap-subject petitions that are not prohibited multiple filings.
USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed for current H-1B workers who have been counted previously against the cap, and who still retain their cap number, are exempt from the FY 2020 H-1B cap. USCIS will continue to accept and process petitions filed to:
Extend the amount of time a current H-1B worker may remain in the United States;
Change the terms of employment for current H-1B workers;
Allow current H-1B workers to change employers; and
Allow current H-1B workers to work concurrently in a second H-1B position.
U.S. businesses use the H-1B program to employ foreign workers in specialty occupations. We encourage H-1B applicants to subscribe to the H-1B Cap Season email updates located on the H-1B Fiscal Year (FY) 2020 Cap Season page.
USCIS will resume premium processing on Monday, Jan. 28, for all fiscal year (FY) 2019 H-1B cap petitions, including those eligible for the advanced degree exemption (the “master’s cap”). Petitioners who have received requests for evidence (RFEs) for pending FY 2019 cap petitions should include their RFE response with any request for premium processing they may submit.
H-1B visas provide employers with skilled workers for a wide range of specialty occupations. When a petitioner requests the agency’s premium processing service, USCIS guarantees a 15-day processing time. If USCIS do not take certain adjudicative action within the 15 calendar day processing time, USCIS refunds the petitioner’s premium processing service fee and continues with expedited processing of the petition. This service is only available for pending petitions, not new submissions, because USCIS have already received enough petitions to meet the FY 2019 cap.
The previously announced temporary suspension of premium processing remains in effect for all other categories of H-1B petitions to which it applied. USCIS plan to resume premium processing for the remaining categories of H 1B petitions as agency workloads permit.
USCIS will continue to notify the public via uscis.gov when USCIS begin accepting premium processing for other categories of H-1B petitions.
SUBJECT: Validity of Report of Medical Examination and Vaccination Record (Form I-693)
Purpose
U.S. Citizenship and Immigration Services (USCIS) is updating policy guidance in Volume 8, Part B of the USCIS Policy Manual regarding the period of time during which a Form I-693 submitted in support of a related immigration benefits application1 is considered valid. This policy is controlling and supersedes any prior guidance on the topic.
Background
Form I-693 is used by USCIS officers in determining whether an applicant for an immigration benefit in the United States is inadmissible under the health-related grounds of inadmissibility.2 USCIS designates civil surgeons in the United States to conduct immigration medical examinations and record the results on Form I-693.3 Federal statutes and regulations do not prescribe the validity period of Form I-693; rather, USCIS historically has established the validity period by policy. USCIS is now updating the way the current maximum 2-year validity period is calculated to enhance operational efficiencies and reduce the need to request updated Form I-693 from applicants.4 This policy is effective November 1, 2018.5
Policy Highlights
• A Form I-693 is valid only when a civil surgeon signs it no more than 60 days before the date an applicant files the application for the underlying immigration benefit; and USCIS adjudicates the application within 2 years from the date of the civil surgeon’s signature.
Citation
Volume 8: Admissibility, Part B, Health-Related Grounds of Inadmissibility [8 USCIS-PM B].
1 For example, an Application to Register Permanent Residence or Adjust Status (Form I-485).
2 See INA 212(a)(1).
3 Civil surgeons must perform the examinations according to Technical Instructions published by the U.S. Centers for Disease Control and Prevention (CDC).
4 The new policy requires applicants to complete their immigration medical examinations closer in time to the filing of the underlying benefit application. This effectively increases the period of time Form I-693 will remain valid while USCIS adjudicates the benefit application, thereby reducing the need for USCIS to request updated medical reports. As always, officers still have the discretion to request an updated Form I-693 and other medical documentation if they have reason to believe a medical inadmissibility may exist.
5 However, some Form I-693 submitted to USCIS before November 1, 2018 may be subject to the previous validity
period policy, as explained more fully in the Policy Manual.
USCIS announced that as of yesterday, July 30, 2018, it had returned all FY2019 H-1B cap-subject petitions that were not selected in the lottery. AILA and the American Immigration Council continue to seek examples of H-1B denials for analyst positions based on USCIS’s conclusion that the position is not a “specialty occupation.”
On April 11, USCIS used a computer-generated random selection process to select enough H-1B petitions to meet the congressionally-mandated cap and the U.S. advanced degree exemption, known as the master’s cap, for fiscal year (FY) 2019.
USCIS received 190,098 H-1B petitions during the filing period, which began April 2, including petitions filed for the advanced degree exemption. USCIS announced on April 6, that it had received enough H-1B petitions to reach the statutory cap of 65,000 and the master’s cap of 20,000. USCIS will reject and return all unselected petitions with their filing fees unless the petition is a prohibited multiple filing.
USCIS conducted the selection process for the master’s cap first. All unselected master’s cap petitions then became part of the random selection process for the 65,000 cap.
USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed for current H-1B workers who have been counted previously against the cap, and who still retain their cap number, will also not be counted towards the FY 2019 H-1B cap. USCIS will continue to accept and process petitions filed to:
• Extend the amount of time a current H-1B worker may remain in the United States;
• Change the terms of employment for current H-1B workers;
• Allow current H-1B workers to change employers; and
• Allow current H-1B workers to work concurrently in a second H-1B position.
Starting April 2, 2018, USCIS will begin accepting H-1B petitions subject to the Fiscal Year (FY) 2019 cap. We will temporarily suspend premium processing for all FY 2019 cap-subject petitions, including petitions seeking an exemption for individuals with a U.S. master’s degree or higher. This suspension is expected to last until Sept. 10, 2018. During this time, we will continue to accept premium processing requests for H-1B petitions that are not subject to the FY 2019 cap. We will notify the public before resuming premium processing for cap-subject H-1B petitions or making any other premium processing updates.
WASHINGTON – U.S. Citizenship and Immigration Services (USCIS) announced today that it will now accept credit card payments for filing most of its forms.
The new payment option is available for the 41 fee-based forms processed at USCIS Lockbox facilities. To pay by Visa, MasterCard, American Express or Discover, applicants will need to use Form G-1450, Authorization for Credit Card Transaction (PDF, 260 KB)s.
USCIS will enter credit card data into the Pay.gov system, operated by the U.S. Department of the Treasury, and will then destroy the Form G-1450 to protect the credit card information.
Applicants for naturalization and those renewing or replacing their Green Cards can already use a credit card when they file online at uscis.gov. In addition, USCIS has been accepting credit card payments for naturalization forms filed at Lockbox facilities since 2015.
Current versions of all USCIS forms are available free at uscis.gov/forms. Learn more about USCIS resources at uscis.gov/tools.
USCIS Service Center Operations Directorate (SCOPS) has confirmed that it will follow regular procedures for H-1B cap season. At this time, USCIS does not anticipate that premium processing will be suspended for non-cap H-1B petitions, but there may be a suspension of premium processing for H-1B cap-subject petitions.
US Law Group will continue to post updates on any H-1B processing changes.
