An I-485 lawsuit was recently rejected by U.S. Federal Court. A group of I-485 petitioners recently filed suit against USCIS because of what they felt was an unacceptable delay in the processing of their green cards. The petitioner requested injunctive relief asking the Court to order USCIS to adjudicate their pending I-485 Adjustment of Status to permanent residence by October 31, 2021.  Citing Bian v. Clinton, 605 F.3d 249, 255 (5th Cir. 2010) the Court was not persuaded that the I-485 applicants possessed “a ‘clear and certain’ right to have [their] I-485 application[s] adjusted within [a certain number of days] of [the application’s] filing-or that the USCIS has a ‘plainly prescribed’ duty to process the application within [a set] time frame.”  Consequently, the court denied the plaintiffs’ claim in Kivlekar v. U.S. Citizenship & Immigration Servs., 3:21-cv-2576-B-BN, (N.D. Tex. Oct. 28, 2021).  Unfortunately, this decision means if you are experiencing a delay in reference to your I-485 Adjustment of Status filing you will need to be patient. Cases are being approved on a regular and, in most cases, timely manner and many green cards are still being issued without interviews. As a sign that things are looking up, we just had an I-485 approved within 41 days – filed on 9/27/2021 and approved without an interview on 11/7/2021.

The CDC recently set forth new “Requirements for Immigrant Medical Examinations: COVID-19 Technical Instructions for Civil Surgeons.” Beginning October 1, 2021 persons applying for permanent residence will be required to provide proof that they have been vaccinated against the COVID-19 virus at the time of their medical exam or receive the vaccinations before the medical exam can be completed. The proof of vaccination will be part of the required medical examination. The addition of the COVID-19 vaccination is not surprising and joins a long list of other required vaccinations (tetanus, polio, measles, influenza, etc.). The COVID-19 vaccination requirement will differ from previous requirements in that the entire vaccine series (1 or 2 doses depending on formulation) must be completed. It is not specified which vaccines will be acceptable, however only an official vaccination record or a copy of a medical chart stating that the individual has received the full complement of doses will be accepted as proof.

There are exceptions to the COVID-19 vaccination requirement, the same as for the other required vaccines, including persons who are too young or have contraindications or other health based reasons to not receive the vaccine. There is also a waiver for individuals in countries with no or limited COVID-19 vaccine supplies.

We strongly recommend that anyone who is scheduling a medical exam to be sure they are fully vaccinated for COVID-19 before doing so and that they request the civil surgeon to acknowledge the COVID-19 vaccination in the medical record. While the CDC recommends that civil surgeons should accommodate applicants if they want to complete the remaining components of the exam after they are fully vaccinated against COVID-19, there is no guarantee that the physicians will agree to this accommodation. Additionally, it appears USCIS will require medical exams submitted after October 1 to contain the COVID-19 vaccination confirmation. Cases pending prior to that date should not be affected.

We are seeing improvement in NIW processing times. NIW cases at the Nebraska Service Center have not been too seriously affected by the pandemic. NIW cases are still being adjudicated at the NSC in approximately 8 months. The Texas Service Center was struggling before the pandemic and became even worse. The NIW processing times posted online for the TSC continue to vary greatly. A new Director was recently appointed to the TSC and we are seeing improvements. While many cases are still languishing, we are seeing NIW approvals on cases from Texas coming in recently that have been adjudicated in around 12 months. We are also seeing some older cases being transferred from Texas to Nebraska, which will hopefully speed up NIW processing times. The good news is that we are definitely seeing improvement in the Texas processing times, and Nebraska is staying consistent. 

At this point in time, we do not recommend contacting a member of congress to inquire about or request an expedite of your NIW case. While we understand the frustration of the thousands of people who have cases that have been pending for a very long time, there is very little that can be done to help you speed up your case. 

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.

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.