USCIS in furtherance of President Biden’s executive order, “Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans” has issued a new policy guidance which restored the 2004 guidance giving USCIS officers deference. The 2004 guidance was rescinded in 2017 by the Trump Administration, in their efforts to curtail legal immigration. The reinstated 2004 guidance, allows USCIS officers to once again give deference to prior determinations when adjudicating extension requests involving the same parties and facts, unless there is a material change, or new material facts. This is another positive step taken by President Biden in streamlining and making the immigration process more efficient. You can read the Policy Guidance Here.
Effective immediately the I-944 is no longer required.
On March 10, USCIS posted an update to the Public Charge Rule. It sated that As of March 9, 2021, “applicants for for adjustment of status should not provide the Form I-944, Declaration of Self-Sufficiency, or any evidence or documentation required on that form with their Form I-485.” The USCIS statement went on to specify that they “will not consider any information that relates solely to the Public Charge Final Rule, including, for example, information provided on the Form I-944, evidence or documentation submitted with Form I-944.”
Also of note, USCIS stated that if you received a Request For Evidence (RFE) or a Notice of Intent to Deny (NOID) based on the I-944 or requesting information related tot he Public Charge rule, and your response is due on or after March 9, 2021, there is no need to respond. While there is no need to respond we recommend that any RFE or NOID be responded to including a copy of the USCIS statement as evidence that there is no requirement to provide the evidence requested. The USCIS announcement related to welcomed end of Trump’s Public Charge rule can be read here.
On March 9, 2021, DHS issued a litigation statement announcing that it would no longer continue its attempts to enforce the public charge rule. Later in the day, DHS Secretary Alejandro Mayorkas issued a follow-up statement announcing that DHS had withdrawn from all public charge related litigation. The DHS has dismissed the appeals that were pending in the U.S. Supreme Court and the Federal Seventh Circuit and was in the process of dismissing the appeal pending in the Federal Fourth Circuit. As a result of the dismissal of the Seventh Circuit appeal, the final judgment vacating the public charge rule went into effect. This action is in line with President Biden’s Executive Order 14012, directing DHS to review the public charge rule. This means that effective immediately, the I-944 is no longer required. At this point, we would recommend waiting to file any adjustment of status until USCIS formally announces that the I-944 is no longer necessary. The DHS announcement can be found here.
On Wednesday February 24, 2021 President Biden revoked, with limited exceptions, the ban on immigrant visas, at consulates and embassies overseas. However, the ban on the issuance of nonimmigrant work visas such as H-1B, H-2B, L and certain J visas was not revoked. The nonimmigrant visa ban is set to expire on March 31, 2021 and unless the Whitehouse specifically revokes it before then, it appears there will not be any new H-1B visas issued overseas until after that date unless a national interest exemption applies. You can read President Biden’s Proclamation here. Proclamation 10014, which was Trump’s ban on immigrant visas that was revoked by President Biden, can be read here. Proclamation 10052, Trump’s ban on non-immigrant visas can be read here. Proclamation 10131 extending 10052 until March 31, 2021 is available here.
While the revocation of Proclamation 10014 is welcome news, we feel the White House came up short by not specifically removing the ban with respect to H-1B, J and L visas.
We will continue to monitor the situation as the Biden administration issues immigration policy pertinent to employment based immigrant and nonimmigrant visas.
Today, Wednesday February 2, 2021, President Biden signed an executive order titled “Executive Order on Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans”. In Section 4 of the Order, titled “Immediate Review of Agency Actions on Public Charge Inadmissibility,” President Biden is requiring the State Department, the Attorney General and the Department of Homeland Security to review the “public charge” policy implemented by the Trump Administration which resulted in the creation of the I-944 Public Charge Form. While we were hoping the Biden Administration would eliminate the need for the I-944, the executive order only calls for a review of the policy in line with the language of Section 1 of the order which states that the Federal Government should eliminate “sources of fear and other barriers that prevent immigrants from accessing government services available to them.” This language is directly aimed at the public charge review articulated in Section 4 of the order.
The agencies tasked with reviewing the public charge policy were given 60 days to submit their recommendations to the President.
We believe the I-944 requirement will be eliminated, at least for now it is still mandated and should be filed with every I-485 adjustment of status until further notice.
Given how slow Washington moves, and the fact that reports are not likely to even be submitted to the President for review for at least two more months, we see no reason to delay the filing of the adjustment of status, in hopes of avoiding the preparation of the I-944. There is a very strong probability that by the time an AOS filed now is adjudicated, the Public Charge Policy will no longer be effective and the I-944, although filed, will no longer be relevant to the adjudication process.
The text of the executive order can be found here: https://www.whitehouse.gov/briefing-room/presidential-actions/2021/02/02/executive-order-on-restoring-faith-in-our-legal-immigration-systems-and-strengthening-integration-and-inclusion-efforts-for-new-americans/
As mentioned in the prior blog, during his first day in office, President Biden revoked the Travel Ban instituted by the Trump Administration in February of 2017. The “Proclamation on Ending Discriminatory Bans on Entry to The United States” effective immediately revoked Executive Order 13780 of March 6, 2017 (Protecting the Nation From Foreign Terrorist Entry Into the United States), Proclamation 9645 of September 24, 2017 (Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats), Proclamation 9723 of April 10, 2018 (Maintaining Enhanced Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats), and Proclamation 9983 of January 31, 2020 (Improving Enhanced Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats). The Proclamation stated that “Our national security will be enhanced by revoking the Executive Order and Proclamations.”
The Proclamation directed the Secretary of State to direct all Embassies and Consulates to begin visa processing for those countries previously affected by the ban. The Secretary of State has 45 days to provide the President with a report that addresses: 1) a plan for expeditiously adjudicating visa applicants who were already being considered for a waiver under the now revoked Trump Proclamations. 2) A proposal to ensure the reconsideration of visa applications of previous applicants who had their visa rejected because of the Trump Proclamations, a plan to expedite the consideration of prior visa applications and whether an additional fee is appropriate. 3) Finally a plan to ensure that persons who previously had their visas denied because of the Trump Proclamations are not prejudiced by the prior denial.
This is great news for the millions of people affected by the now extinct ban! If you have a valid visa that allows for re-entry and there are no other constraints due to having filed an I-140, you are now (COVID-19 travel restrictions permitting) free to travel home and your family members can now apply for visas to visit the U.S.
We strongly urge our clients to check with us before travelling in the event there may be any issues related to international travel that apply to your case. Also, given the Biden administrations strong stance on fighting COVID-19, any international travel presently presents a very real risk of not being able to return to the U.S. because of potential COVID related travel restrictions.
You can read President Biden’s Proclamation here.
Early Wednesday, soon to be President Biden announced major new immigration policies that he wants to quickly implement. The most important to our clients is that he wants to clear up the employment-based immigration backlog and do away with per country visa caps.
This is exciting news and we are hopeful that the new administration will be able to follow through on their intentions. If the administration is able to clear the EB visa backlog, this will now be the best time in years for people from all countries to move forward with an NIW, and the need for professionals from China and India to try for an EB-1A just to get a better priority date is hopefully behind us.
With Joseph R. Biden Jr. being sworn in as the 46th President of the United States and Kamala Devi Harris being sworn in as Vice President on January 20, 2021, there are likely to be significant immigration changes coming soon.
Vice President Harris is not only the first woman to serve as Vice President; she is the first person of South Asian descent to serve in this position. As the daughter of immigrants, she is likely to have a positive impact on pro-immigration policies, which we expect will be coming out of the White House rather quickly. Her mother, a breast cancer researcher, arrived in the U.S. from India as a graduate student in nutrition and endocrinology and earned her PhD. Her father is a professor emeritus of economics, who arrived in the U.S. from British Jamaica for graduate school and earned his PhD in economics. Kamala Harris graduated from high school in Canada (where she lived with her mother) and eventually earned her law degree in the United States.
President Biden has already said that he will immediately end the “Travel Ban” that Trump instituted early in his tenure. The end of the Travel Ban will allow many of our clients to travel home for the first time in four years. Family members will now be able to more easily enter the U.S. on dependent visas. Consular processing for employment-based green cards and other employment visas will be much more accessible. H-1B visas will now be available for persons previously affected by the Travel Ban.
The H-1B restrictions recently implemented by the Trump administration will likely be rescinded almost immediately, and the public charge rule and the requirement to file the I-944 with an Adjustment of Status will most likely be done away with early on as well.
Another thing to look forward to is the implementation of premium processing for National Interest Waiver petitions. We are hopeful that premium processing will be implemented by early March at the latest.
While Senate Bill 386 and House Bill 1044 were never passed into law in 2020, new bills will likely be introduced and brought forward. Whether a similar bill will make it into law in 2021 and in what form is just too speculative at this point, but Vice President Harris is a strong proponent of equalizing priority dates, so we would expect to see some proposed changes in the law in 2021. This is one area in particular that we will keep a close watch on so we can keep our clients from all countries informed as to developments related to any significant priority date changes.
What we will be watching the closest is what effect the new administration has on the adjudication of employment-based petitions. The last four years were extremely challenging, with the standards for petitions changing on almost a weekly basis. While our NIW success rate on guaranteed cases stayed above 99%, we did have to respond to more Requests for Evidence (RFEs) that were issued in the past year. We had to fight hard for our clients to get cases approved, which historically should have been easily approved. It will take some time, but we are hopeful new directives will be given and that the days of unreasonable adjudications and unreasonable USCIS Officers are behind us.
Finally, we are very hopeful that the Biden/Harris administration will implement new policies and that Congress will provide the resources necessary for USCIS to adjudicate cases in a more timely manner. COVID has had a significant impact on the processing times. The lack of income USCIS generated due to Trump’s anti-immigration policies and the lack of necessary funding provided to USCIS also negatively impacted USCIS’ ability to timely process cases. USCIS officers faced furloughs consistently throughout the past year. With the new administration and the new support they will be given, USCIS officers should be more stable, less unpredictable, and more motivated to be productive.
We are very optimistic about 2021 and the next four years. We are excited about the new hope and welcoming message that the Biden/Harris administration bring to U.S. immigration. We are looking forward to continued success “Representing The Best and Brightest”™️ with the best immigration services possible and helping our clients to become Permanent Residents of the United States of America!
Senate Bill 386 and House Bill 1044 were not added to the Omnibus Spending Bill and will not go into law in 2020. Please follow our blog for updates on legislation related to the equalization of priority dates.
Previously Published 12/2/2020:
Late on December 2, 2020 the U.S. Senate passed Senate Bill 386. Senate Bill 386 is the follow up to House Bill 1044 which was passed in July 2019. There are differences between SB 386 and HR 1044 that will need to be reconciled between the House and the Senate and this is expected to take time. Once an agreement is reached, then both chambers will again need to vote to pass the final bill. Once the final bill passes through both chambers, the president will need to sign the bill into law. It is highly unlikely that it will get signed into law prior to President-elect Biden taking office. However, at this point it appears inevitable that the law will pass at some point in the near future. We will not know the final form it will take or its terms until that happens. If you are concerned about the potential affect will have on your ability to timely file an I-485 in the future and would like to file the I-485 adjustment of status while priority dates remain current please feel free to contact us.
H.R. 8337 passed through the house on September 20th and on September 30th the U.S. Senate passed H.R. 8337. This heavily bipartisan bill was then signed into law by President Trump today (October 1).
The law allows USCIS to provide premium processing for all three Employment Based categories – EB1, EB2 and EB3. The processing fees have not yet been set but the law sets a cap at no more than $2500. The law also sets a deadline of 45 days for USCIS to render a decision.
H.R. 8337 also now provides for an expedite of the Employment Authorization Document. That fee is set a maximum of $1500 and the time limit set to receive a decision from USCIS is no more than 30 days.
As part of the new premium processing the bill instructs USCIS not to allow processing times for non-premium cases to increase.
Now that the Bill has been signed into law we will have to wait for USCIS to implement it. USCIS will need to set premium processing fees and decide on adjudication time limits. Once USCIS establishes the fees and times they will set an implementation date.