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.
EAD Renewal Expedite Now Available For Essential Healthcare and Public Health Workers
/by Jim ArkellUSCIS recently issued an ALERT that they will process EAD expedite requests on EAD renewals that are pending for Essential Healthcare and Public Health Workers. To be eligible to expedite your EAD renewal your current EAD must be set to expire within 30 days or have already expired. Also, you must be an Essential Healthcare […]
USCIS Waiving 60-day Rule for Medical Exam Filing
/by Jim ArkellUSCIS announced on December 9th that they are temporarily waiving the requirement that the I-693 Report of Medical Examination and Vaccination Record be filed within 60 days of being signed by a Civil Surgeon. The policy is effective immediately and is in effect until September 30th, 2022. The waiver applies to all pending cases, regardless of when the application was submitted or when the Form I-693 was signed. Previously, in August, USCIS extended the validity of the I-693 Medical Exam from two years to four years. These actions on the part of USCIS show that they are making efforts to overcome some of the challenges brought on by the pandemic.
Recapturing of Unused Green Cards
/by Jim ArkellIt appears that there is a provision in the proposed spending bill presently before Congress which proposes to recapture more than 400,000 unused green cards. It is estimated that there are approximately 224,000 green cards that were allocated during the period from 1992 to 2019 which were never issued. Additionally, in 2020 there were 200,000 green cards that went unissued. It is safe to assume with the pandemic and the delays that exist in the processing of green cards that there will be many more green cards that go unused for 2021. If this bi-partisan proposal is included in the spending bill, then it is great news for persons from countries facing long delays due to extended priority dates. If recaptured the green cards will be used for individuals who already have an approval under either a family or employment based case.
While the possibility of recapturing 100,000+ of unused green cards is exciting news, it will not come without a cost. In order to claim one of the recaptured green cards the USCIS fee will be $5,000. If passed this could potentially generate $2,000,000,000 in revenue for USCIS. That kind of additional funding should allow USCIS to increase staff and resources to further alleviate the current delays and backlogs. Should the backlog clear significantly, it should allow individuals from India and China to timely obtain a green card through the NIW process. For further information on the recapture please see the Axios news report.
I-485 Processing Times
/by Jim ArkellAn 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.
COVID TRAVEL RESTRICTIONS TO BE LIFTED
/by Jim ArkellThe White House just announced that it will lift COVID related travel restrictions effective November. Although a specific date has not been given, it is anticipated that it will be in early November. While this is good news for those who have valid visas, it does not change the waiting times to obtain visas at a U.S. Embassy or Consulate abroad. With U.S. Embassies and Consulates still not working at full capacity, and with little sign of the COVID pandemic letting up anytime soon, it is highly advised that persons not travel internationally without having a valid visa in their passport or advance parole.
COVID VACCINATIONS TO BE REQUIRED FOR GREEN CARD APPLICANTS
/by Jim ArkellThe 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.
Pilot NIW Green Card Rumor
/by Jim ArkellThere appears to be a rumor that the U.S. government has made it easier for pilots to obtain a green card through the NIW process. As respected leaders in helping pilots obtain green cards, we have been getting several inquiries from pilots and even other immigration attorneys inquiring about how pilots can obtain a green card under the rumored new immigration initiative. We have not seen anything substantive from the U.S. government to indicate that the standards required for pilots to obtain a green card have changed. For a successful NIW pilot case, in addition to having an advanced degree or the equivalent (e.g., bachelor’s degree plus five years of progressive experience, or ten years of documented experience and meeting other strict requirements), it is helpful to have significant flight experience and a demonstrated background in accident investigation and/or flight testing and/or flight instruction. If you feel you are qualified, please provide us with a detailed CV, and we will be happy to review your case. Please monitor our blog as we will update it when and if anything substantive changes related to pilot-based NIW green cards.
USCIS NIW Processing Times Improving
/by Jim ArkellWe 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.
COVID-19 Travel Restrictions
/by Jim ArkellDue to the COVID-19 pandemic, U.S. consulates and embassies in many countries around the world are still not operating at full capacity. 33 countries still require that non U.S. citizens or permanent residents obtain a National Interest Exception (NIE) before they can enter the U.S. from the affected countries. Embassy shopping has been pretty much shut down at this point as the consulates and embassies in each country are limiting appointments to citizens and residents of that country. Some countries are presently scheduling appointments out almost one year. Without an already approved NIE, pre-scheduled appointment, or the willingness to spend 14 consecutive days in a non-affected country, any travel to one of the 33 countries subject to the U.S. COVID travel ban should be avoided. (See below for a list of the 33 countries)
Countries subject to Presidential Proclamation COVID-19 restrictions:
The 33 restricted countries are:
USCIS Issues Policy Guidance on Deference to Previous Decisions
/by Jim ArkellUSCIS 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.