October 2023 Newsletter

by | Oct 6, 2023 | News

The U.S. Department of State’s October Visa Bulletin identifies the availability of immigrant visas in family and employment-based preference categories. As October marks the start of the new fiscal year, there has been significant anticipation for movement in backlogged categories.

Most positively, the EB-1 preference category became current again for all chargeability categories with the exception of China and India. This means that many extraordinary ability self-petitioners, along with outstanding researchers and certain multinational executives, no longer have a wait period to apply for their green cards. Practically speaking, those individuals under most circumstances can concurrently file for green cards if present in a nonimmigrant status in the United States. Alternatively, if living abroad, these persons may immediately seek their immigrant visas at consulates after USCIS approves their I-140, rather than waiting for the priority date to become current.

The EB-4 preference category, which covers all Special Immigrants, including G-4 retirees, religious workers, special immigrant juveniles and others, advanced some but not much. While a significant change was not expected with the beginning of the new fiscal year (10/1/1023), this means that petitioners in this category will still need to wait years before being able to apply for a green card. This will continue to pose logistical challenges to those who wish to remain in the United States and need to maintain a lawful nonimmigrant status in order to adjust.

Similarly, the F2A preference category, covering spouses and minor children of lawful permanent residents (LPRs), remains backlogged, but did move from a January 1, 2018 final action date to a February 8, 2019 final action date. While the movement forward is also positive, this still practically means that many families in this category will experience prolonged separations of several years and those in nonimmigrant status cannot concurrently adjust their status under this category.

The EB-2 preference category remains backlogged as well, moving only a matter of days from the month prior to its current July 8, 2022, final action date. While this backlog persists, the date of filing – being able to file to adjust status — moved up to January 1, 2023, for applicants from all nations except for China and India who are oversubscribed. This means that that most applicants who submitted their I-140 petition before 2023 can file their adjustment of status application. However, if their I-140 was not filed earlier than July 8, 2022, an immigrant visa will not be able to be issued at this time, and they will need to wait for the priority date to become current to receive lawful permanent residence. Even those qualifying for EB-2 visas through a National Interest Waiver (NIW) are not exempted from these backlogs.

These immigrant visa backlogs keep families apart and put the United States at risk of losing highly skilled workers to other industrialized countries, such as Canada, who have adapted their laws and policies to encourage these same workers to immigrate there. 

DACA Remains in Status Quo: A Federal Judge’s Decision Does Not Impact Renewals

On September 13, 2023, a federal judge again declared that the Deferred Action for Childhood Arrivals (DACA) program was unlawful. Specifically, the court held that the attempt by the Biden Administration to codify the DACA policy into federal regulation is not permitted by law.

While Judge Hanen deemed the program unlawful, this decision did not terminate the DACA program. Accordingly, DACA remains in status quo, with recipients being eligible to re-apply for benefits with USCIS, so long as they do so within one year of expiration of their DACA benefits. However, new registrants meeting the qualifications will not have their applications adjudicated. The Biden Administration is expected to appeal this decision to the United States Appeals for the Fifth Circuit.

Abandoning LPR Status: When Prolonged Absences Become Problematic

Many foreign nationals might mistakenly think that once they’ve secured their permanent resident card (green card), it is not possible to lose their permanent status. However, multiple and prolonged absences from the United States may jeopardize a foreign national’s legal permanent resident (LPR) status, and could disqualify them for naturalization.

U.S. immigration law assumes that a person admitted to the United States as an immigrant will live in the United States permanently. Remaining outside the U.S. for more than 12 months mayresult in a loss of legal permanent resident status and also disqualify an otherwise eligible LPR from qualifying for naturalization.

Abandonment of LPR status occurs when the LPR demonstrates his or her intent to no longer reside in the United States as an LPR after departing the United States. While LPRs are permitted to travel outside the United States, depending on the length and circumstances of the trip abroad, the trip may lead to a determination that the LPR abandoned his or her LPR status. There is no fixed period of time that will trigger abandonment, but LPRs are treated as seeking re-admission if they have been absent from the United States for a continuous period of longer than 180 days. A LPR returning from a visit of more than 180 days is subject to the grounds of inadmissibility and can be questioned as to potential abandonment of residency. More significantly, absences of over a year create a legal presumption that the LPR has abandoned his or her status.

USCIS reviews multiple factors when assessing whether an applicant objectively intended to abandon LPR status, including: (1) the length of absence from the United States; (2) the purpose of travel outside the United States; (3) a foreign national’s intent to return to the United States as an LPR; and (4) continued ties to the United States (such as length of time in the United States, U.S. residence of other immediate family members during this period, continued employment in the United States, property ownership, U.S. business affiliations, payment of U.S. taxes, etc.)

To avoid issues, LPRs may apply for a USCIS reentry permit. Individuals holding USCIS reentry permits may remain outside of the United States up to 24 months. Possessing this permit removes the length of the absence as a factor as to whether residency was abandoned, assuming the LPR returns within the allowed period (a maximum of two years). This reentry permit may be obtained by filing Form I-131 with the USCIS before leaving, along with a filing fee and biometrics fee. For more details on applying for a reentry permit, please consult with an immigration attorney.

Foreign nationals who have decided to voluntarily abandon their LPR status and relinquish their green card are required to file Form I-407, Record of Abandonment of Lawful Permanent Resident Status, with USCIS. Form I-407 is designed to provide a simple procedure to record an individual’s abandonment of status as an LPR of the United States. Please prepare sufficient time to abandon your green card with Form I-407 before you register for Electronic System for Travel Authorization (ESTA) under the Visa Waiver Program should you wish to return to the United States temporarily.

Abandoning your Permanent Resident Card card and status does not affect your eligibility to apply to immigrate to the United States in the future. However, those who abandon status will have to file a new USCIS petition and immigrant visa application process.

USCIS Creates Online Rescheduling Tool for Biometrics Appointments

In an effort to make their process more streamlined online, USCIS has implemented online biometrics rescheduling. This tool allows benefit requestors—and their attorneys and accredited representatives—to reschedule biometric services appointments online rather than calling the USCIS Contact Center. This may help avoid untimely rescheduling.

The creation of this online tool demonstrates USCIS’s strive to improve its customer service and improve its accessibility as it may lead to a reduction of call volume to USCIS Contact Center. In order to reschedule a biometrics appointment online, a requestor will need to have a USCIS online account, which may be easily created. This new tool can be used for a case that was either filed online or through mail.

It is important to note that while this new change will be of greater convenience to beneficiaries and their attorneys, the new online tool cannot be used to reschedule an appointment that has been scheduled twice, is within a 12-hour timeframe, or for a date that has already passed. An untimely rescheduling request can only be made to the USCIS Contact Center, which may be considered for good cause.

For Some H-1B Recipients, Second Time is the Charm

On July 31, 2023, USCIS completed a second round of selections of H-1B registrations for the 2024 fiscal year. USCIS selected an additional 77,600 registrations in the second selection. In the first round, USCIS had selected 110,791 registrations to reach the 85,000 annual limit. The second round of selections indicates that USCIS anticipates a lower rate of approval from the initial round of selections than they had initially anticipated. Those registrations that were still not selected in the second round remain eligible should USCIS conduct a third round, as USICS has not yet closed those registrations—although the likelihood of such is low.

Hopeful beneficiaries whose H-1B registrations have not been selected in this year’s H-1B lottery will need to find an alternative should they wish to remain in the United States. Some beneficiaries might elect to remain in or change to F-1 status, while some limited individuals might be eligible to purse an O-1 or NIW petition. Employers can also seek an employment-based immigrant visa petitions for beneficiaries, but must first go through the labor certification process (PERM), which is lengthy and more stringent than what is required to qualify for a H-1B. (See article below.)

Potential Pitfalls of PERM: Employers, be Prepared!

PERM applications involve multiple steps that require attention to detail and strict adherence to regulations. The process can be confusing for petitioning employers, as the PERM application and recruitment process is unlikely to have much similarity to the employer’s normal hiring process. The process is fraught with potential pitfalls, including those discussed below.

True Minimum Requirement

Employers often have difficulty in divorcing the notion of their ideal candidate from the true minimum requirements for the prospective PERM position. Petitioning employers tend to think of the beneficiary and their experience and qualifications when thinking of the requirements for the PERM position. This is a flawed approach, as it will lead to the employer tailoring the job description and requirements to the beneficiary’s qualifications, which could result in a denial due to the job description being unduly restrictive. The employer needs to think of what the minimum qualifications are to perform the job, and not what they would prefer. It can be helpful if the employer imagines that the beneficiary is no longer available for the job and if they had to find someone else to do the job, what qualifications they would accept.

Subjective Language

When submitting the minimum qualifications for the PERM position, the employer should avoid subjective language for the true minimum requirements. Terms such as “good,” “extensive,” or “strong” should not be used, and neither should other subjective qualifications like “good sense of humor” or “gets along with others.” While the employer might routinely use such subjective terms and requirements in its normal recruitment, the PERM process is not “normal.” The issue with using subjective criteria is that they cannot be quantified. If the employer were to state that a requirement was “extensive experience with database management,” it would be unclear as to what would qualify as extensive. Instead, the requirement should be stated in quantifiable terms such as “two years of experience,” which can be objectively measured. If the employer were to use a subjective requirement to disqualify an otherwise qualified applicant, they would have a difficult, if not impossible, time in justifying such to the DOL in the event of an audit.

Prior Experience with Petitioning Employer

It is important that the employer understand that, generally, the beneficiary cannot qualify for the PERM position through experience gained with the petitioning employer. The two instances where experience with the petitioning employer can be used to qualify for the PERM position are when the prior experience is not substantially comparable to the PERM position or when it is infeasible to train a new employee. For the prior experience to not be substantially comparable to the PERM position, the two positions must be more than 50 percent different. To demonstrate that the positions are not substantially comparable, the petitioning employer will need detailed job descriptions of the positions, listing the job duties and the percentage of time devoted to each duty. For infeasibility to train, it is not sufficient for the employer to merely state that it is infeasible to train a new hire, as the burden to demonstrate such is high. The employer should provide a detailed statement with specific and concrete reasons along with supporting documentation, if available, to demonstrate that it would be infeasible to train a new employee.

Beneficiary’s Qualifications

The beneficiary of the PERM application must possess all the necessary requirements when the PERM application is filed. This includes all education, experience, skills, and licenses required for the position. If a driver’s license is a minimum requirement, the beneficiary must possess such license prior to the PERM filing, and it is not sufficient to merely obtain the license prior to beginning employment in the PERM position. If the beneficiary is already employed by the petitioning employer in the PERM position, the employer should be able to demonstrate that the beneficiary met the stated minimum requirements when he or she was initially hired in the position. The petitioning employer should get documentation and verify that the beneficiary meets all requirements prior to beginning the PERM process. The beneficiary’s qualifications for the position must be explicitly listed on the PERM application, as failure to do so could lead to a denial. 

DHS’s Family Reunification Parole (FRP) Process: Requirements and Tips

In May 2023, DHS announced their new family reunification parole (FRP) process, which is available by invitation only to certain petitioners who filed an approved Form I-130, Petition for Alien Relative, on behalf of a principal beneficiary who is a national of Colombia, Cuba, El Salvador, Guatemala, Haiti, or Honduras, and their immediate family members. These processes allow an eligible beneficiary to be considered for parole into the United States only on a case-by-case basis while they wait for their family-based immigrant visa to become available.

Petitioners must meet the following requirements:

  • You are either a U.S. citizen or lawful permanent resident (have a Green Card);
  • You filed Form I-130, Petition for Alien Relative, for a principal beneficiary and USCIS approved it;
  • You received a written invitation from the Department of State to file Form I-134A to request to be a supporter and initiate the FRP process on behalf of the principal beneficiary of your approved Form I-130, and their immediate family members. If you have not received a written invitation to apply and you file a Form I-134A, USCIS will not confirm your Form I-134A and the principal beneficiary will not be considered for a discretionary grant of parole under the FRP process; and
  • An immigrant visa has not yet been issued to the principal beneficiary at the time you were issued the invitation to file Form I-134A.

Note: The Department of State’s National Visa Center (NVC) will email the invitation to petitioners at the email address of record for the approved Form I-130. If there is no email address of record, the NVC will mail the invitation to the petitioner’s mailing address of record.Please make sure the NVC has your current contact information and mailing address. To update your contact information or address, contact the NVC through their Public Inquiry Form.

Timing: Invitations will be issued on a rolling basis, based on U.S. government operational capacity, the expected period of time until the principal beneficiary’s immigrant visa becomes available, and consistency to ensure process integrity.

Beneficiaries must be eligible under DHS’s discretionary determinations:

When making discretionary determinations about issuing an advance authorization to travel and granting parole, DHS will consider a beneficiary to be ineligible under these processes for Colombian, Salvadoran, Guatemala, or Honduran beneficiaries who:

  • Have crossed irregularly into the United States, between U.S. ports of entry, after July 10, 2023, except DHS will not consider a beneficiary to be ineligible based on a single instance of voluntary departure pursuant to section 240B of the Immigration and Nationality Act (INA) or withdrawal of their application for admission pursuant to section 235(a)(4) of the INA;
  • Have been interdicted at sea after July 10, 2023; or
  • Have been ordered removed from the United States within the prior five years or are subject to a bar to admissibility based on a prior removal order.

Note: These ineligibilities do not apply to Cuban or Haitian beneficiaries under the FRP Process. However, CBP will consider any beneficiary’s previous immigration history and encounters with U.S. government entities when making a case-by-case determination for parole.

When submitting form, I-134A, petitioners should determine what financial information they have about their assets that will help USCIS determine their financial suitability. Some examples of financial evidence may include your federal income tax filing; bank statements; Form W-2 from your employer; pay stubs or pay statements from the past few months; and any proof of income coming into your household.

If approved, a beneficiary’s advance travel authorization under the FRP Process is valid for 90 days. Beneficiaries are responsible for securing their own travel via commercial air to the United States.

Don’t Procrastinate: Qualified LPRs, File for Naturalization Today

Given the upcoming federal elections in 2024, eligible lawful permanent residents who desire to participate by voting will need to apply for naturalization in the coming weeks if they wish to become citizens in time to register to vote. While the process typically takes about 12 months, sometimes it takes even longer, depending on individual circumstances, government initiatives, and backlogs at certain field offices. The Biden Administration has set an aspirational goal of six-month adjudications for naturalization cases.

Becoming a U.S. citizen provides you certain rights and privileges held only by U.S. citizen, including the right to vote in federal elections. While some municipalities are permitting noncitizens to vote in local elections, voting in a federal election is a deportable offense for a non–U.S. citizen.

Generally, naturalization applicants must meet the following requirements to become a U.S. citizen: (1) Be at least 18 years old at the time of filing; (2) Continuously and physically live in the United States as a green card holder for at least five years, or three years while married to a U.S. citizen; (3) Establish residency in the state or USCIS district where applicant intends to apply; (4) Show “good moral character”; (5) Have knowledge and understanding of the fundamentals of U.S. history and government; (6) Be able to read, write, and speak basic English; and (7) Take a loyalty oath to the United States and support the U.S. Constitution. Certain applicants qualify for an exemption to the categories above or may apply based on their U.S. military service.

The process to naturalize requires the completion and submission of Form N-400, Application for Naturalization, and supporting documentation. Naturalization provides a multitude of benefits beyond voting rights. Firstly, a U.S. citizen can petition for green cards for their parents, siblings, and married children. Secondly, the processing times for a U.S. citizen–filed petition for a spouse and children are shorter than those submitted by green card holders and are not subject to numerical limits. Additionally, minor children under 18 year of age who are LPRs and in the U.S. can automatically acquire citizenship through their naturalized parents.

Furthermore, while LPRs may be detained and removed for certain immigration violations, U.S. citizens are protected from deportation. U.S. citizens are not required to maintain residence in the United States, while LPRs risk abandonment of status if they spend significant time outside the United States. (See article above.)

The benefits of naturalizing are multiple and clear, as it ensures that individuals do not become subject to unfavorable immigration decisions, avoids the issues that LPRs need to be conscious of to prevent the loss of the LPR status, and grants naturalized individuals with the rights and privileges to voice their opinion in the political realm.

News in Brief

 TPS Re-Registration Period Extended: On September 8, 2023, USCIS extended the re-registration period from 60 days to 18 months for Temporary Protected Status (TPS) beneficiaries from El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan. As such, TPS beneficiaries under these designations may file at any time during the 18-month period for re-registration.

VENEZUELAN TPS: Under the new redesignation of Venezuela (Venezuela 2023), eligible individuals who do not have TPS may submit an initial Form I-821, Application for Temporary Protected Status, during the initial registration period that runs from October 3, 2023, through April 2, 2025. Applicants can apply for a TPS-related EAD by submitting a completed Form I-765, Application for Employment Authorization, with their Form I-821, or separately later. Applicants may also submit Form I-765 online.

Immigration on the Rise: The number of foreign-born people living in the United States climbed by nearly a million last year, reaching 46 million, according to estimates by the U.S. Census Bureau. The gain was as big as the previous four years combined, which had waned due to the global pandemic and policies from the Trump Administration.

Canadian Immigration Program Luring Away Skilled Workers and Entrepreneurs: While the overall number of immigrants is increasing in the United States, Canada has implemented a startup visa program designed to attract H-1B holders in the United States, reaching the 10,000-application limit in less than 48 hours this past July.

Immigration Detentions: Immigrations and Customs Enforcement (ICE) held 32,743 individuals in ICE detention, 66.1% having no criminal record. In July of 2023, ICE arrested 22,794 individuals.