Update on National Interest Exception Qualification - F-1, K-1, Immigrants, ESTA, etc.

The pandemic has dragged on into 2021 and it remains difficult to travel due to travel restrictions. The Department of  State has updated their policy on what exempts travelers from China, Iran, India, Brazil, South Africa, Schengen Area, United Kingdom, and Ireland from the ongoing U.S. entry ban. The following is the updated policy as of May 27, 2021.

People from the aforementioned areas can travel if it is for one of the following purposes. Journalists, immigrants, fiancé(e)s, exchange students and visitors of certain programs, and anyone traveling to provide vital economic and infrastructural support can enter. People looking to enter for humanitarian or public health response reasons can also qualify for this exemption. 

Qualified travelers can seek a NIE (National Interest Exception) visa or ESTA authorization (visa waiver) from their closest consulate/embassy. A NIE is valid for 30 days and good for only 1 trip to the U.S.

Students on a M-1 or F-1 visa do not need to request an individual NIE but can simply enter at most 30 days before their program begins. They are automatically considered for NIE qualification when found to be qualified for the F-1 or M-1 visa. If the student was in Brazil, China, India, Iran, or South Africa, then only programs beginning on or after August 1, 2021 qualify them for NIE . 

It has been difficult to travel for over a year now. Travel by NIE is a possible option for people that cannot delay their travel to the U.S. any longer. Anyone that thinks they meet the criteria is encouraged to consult their local embassy's website. 

Visa Bulletin Predictions June 2021 and FY 2022

In the recent Chat with Charlie, DOS Visa Office Chief Mr. Charlie Oppenheim shared extremely valuable insights about the movements of the Visa Bulletin for the summer and also FY 2022. The key notes are as follows:

• For FY 2022 (that begins Oct. 1, 2021), the total family-based immigrant visas is expected to be 226,000.

• For FY 2022 (that begins Oct. 1, 2021), the total employment-based immigrant visas is expected to be 290,000 - which is an all-time high. This includes the spillover of visa numbers from the family-based categories from FY 2021, 

• Through summer and fall 2021, cutoff dates for the EB categories (except EB5 China) will continue to advance aggressively in an attempt to use up all visa numbers. This specifically includes India and China. "Aggressive" means 2 to 3 months, Charlie explained.  

• EB3 India will likely advance to 2012 in the "near future".

• EB2 India with 2013 priority dates will likely become current in FY 2022. 

• No visa retrogression is expected for employment-based and family-based categories, as well as Diversity Visas, in FY 2021 and probably FY 2022.  

• Family-based categories espeically Worldwide countries will also advance nicely throughout summer to accommodate the reopening of the U.S. Consulates and Embassies.  However, the advancement will likely stop in 2022.  

• Family 4th Worldwide had to be retrogressed to "digest" some backlogged cases but is slowly recovering now.

• Due to Covid and other issues, the annual visa limits for both family-based and employment-based immigrant visas will not be reached for FY 2021.

• EB5 for China will advance based on FY 2021 annual limit, as Guangzhou was reopened on April 9th.  However, movement will be limited due to the large number filings from September 2015.

• Filing Action Dates are set to achieve the goal that Final Action Dates will be reached within 8 to 12 months.

• Charlie explained again that there is a 7% per country cap. Total available visa numbers will be allocated based on this cap first and, for employment cases, will be allocated as follows:  28.6% for each of EB1, EB2 and EB3 categories; and 7.1% for EB4 and EB5 categories.  Leftover visa numbers overall will be allocated based on priority dates regardless of the applicant's country.`

U.S. Citizens May Return Using Expired Passports Until 2022

The COVID pandemic has caught travelers worldwide off-guard, leaving some stranded in a foreign country and with limited help from backlogged consulates. U.S. citizens are no exception. If processing times to renew your U.S. passport are holding you back from returning, this could be your way to get home. 

Starting May 21, 2021 until the rest of the year, U.S. citizens abroad holding an expired passport will be able to use it to return back to America. The passport must have expired on or after January 1, 2020 to qualify for this exception. 

The expired passport must be undamaged and in the traveler's possession, and its validity period must have been either 10 years or 5 years for a traveler 15 years-old or under at the time of issuance. The returning flight must be directly to the U.S. or have only a brief stop at a foreign country for a connecting flight to the U.S. 

Be aware that for one to enter the country, the U.S. requires a negative COVID test result taken within 72 hours of flight departure. 

USCIS Begins to Waive Interviews for Employment Green Card Cases

USCIS has started to approve employment-based green card applications without an in-person interview, according to our firm's case approvals and also anecdotalreports. This is a shift from the Trump Administration's interview policy that began on October 1, 2017. 

Before 2017, interviews were not normally required for employment-based adjustment of status applications. DHS started to require inteviews for employment-based and asylum-based applications pursuant to Executive Order 13780, “Protecting the Nation From Foreign Terrorist Entry Into the United States," issued by former President Trump.

To be clear, USCIS has not made any formal announcement regarding any changes in interviewing policy.  Hence, applicants should not assume that they will not be required to attend interviews for their I-485 adjustment of status applications.  The quiet waiver of the interview requirement can be attributed to the ongoing efforts by USCIS to clear the backlogged cases. 

According to the Policy Manual of USCIS, immigration officers "may determine, on a case-by case-basis, that it is unnecessary to interview certain adjustment of status applicants." An officer must consider all relevant evidence in the applicant’s case file before making such a determination. 

For family-based petitions, the petitioner and principal beneficiary are normally required to attend an interview before an immigration officer.  However, if an applicant is clearly eligible for adjustment, USCIS may waive interviews for minor children of U.S. citizens, parents of U.S. citizens, and unmarried minor children under 14 years old of green card holders.  

For employment cases, there are no fixed guidelines for waiving interviews.  However, an interview will be scheduled in the following situations: 

• USCIS needs to confirm the identity of the applicant;
• USCIS needs to validate the applicant’s immigration status;
• The applicant entered the United States without inspection, or there are other unresolved issues regarding the applicant’s manner of entry;
• Any known criminal or national security issues;
• Any issues related to fraud;
• The applicant’s fingerprints have been rejected twice;
• The applicant has a Class A medical condition that the service center cannot resolve through a Request for Evidence (RFE);
• Issues relating to an applicant's eligibility for adjustment, which cannot be resolved through an RFE; or
• USCIS has not been able to obtain an applicant’s Alien-File, T-File, or receipt file (when the applicant has multiple files).

The recent development if interview waivers is sensible, given the large number of pending employment-based petitions.  USCIS may still schedule an interview in certain situations or for audting purposes. Applicants are reminded to continue maintaining their lawful status while waiting for an adjsutment interivew or a decision (if interview is waived).  

June 2021 Visa Bulletin: India EB-2/EB-3 Advances

 

There is good news for Indian employment-based immigrant visa applicants in June. India EB-2 advances 4 months to 12/1/2010, and EB-3 advances 9 months to 11/1/2011. 

As EB-3 India cutoff date continues to be more favorable than EB-2, eligible EB-2 Indian workers may consider filing an EB-3 "downgrade" I-140 petition in order to submit the I-485 (Adjustment of Status), I-765 (Employment Authorization), and I-131 (Advance Parole) applicantions earlier.  

AD: Dates for Final Action (Green Card Approval)           FD: Dates for Filing Applications Only

Family		Other Countries	China	India	Mexico	Philippines
F1	AD	11/01/2014	11/01/2014	11/01/2014	05/01/1998	02/22/2012
	FD	03/01/2016	03/01/2016	03/01/2016	05/15/2000	05/14/2014
F2A	AD	C	C	C	C	C
	FD	05/01/2021	05/01/2021	05/01/2021	05/01/2021	05/01/2021
F2B	AD	08/22/2015	08/22/2015	08/22/2015	09/08/1999	10/15/2011
	FD	08/15/2016	08/15/2016	08/15/2016	08/08/2000	08/01/2013
F3	AD	09/01/2008	09/01/2008	09/01/2008	11/15/1996	06/08/2002
	FD	08/01/2009	08/01/2009	08/01/2009	09/08/2000	08/08/2003
F4	AD	12/08/2006	12/08/2006	05/08/2005	09/01/1998	06/08/2002
	FD	10/01/2007	10/01/2007	12/01/2005	05/08/1999	08/08/2003

1st: Unmarried Sons and Daughters of Citizens (about 23,400 per year).
2A: The 2 "A" preference is for Spouses and Children (under 21 & unmarried) of LPR's.
2B: The 2 "B" Preference is for Unmarried Sons and Daughters (21 or older) of LPR's.
3rd: Married Sons and Daughters of Citizens (about 23,400 per year)

4th: Brothers and Sisters of Adult Citizens. (about 65,000 per year)

Employment		Other Countries	China	El Salvador Guatemala Honduras	India	Mexico	Philippines	Vietnam
EB1	AD	C	C	C	C	C	C	C
	FD	C	C	C	C	C	C	C
EB2	AD	C	05/01/2017	C	12/01/2010	C	C	C
	FD	C	01/01/2018	C	08/01/2011	C	C	C
EB3	AD	C	09/01/2018	C	11/01/2011	C	C	C
	FD	C	01/01/2019	C	01/01/2014	C	C	C
Other Workers	AD	C	10/01/2009	C	11/01/2011	C	C	C
	FD	C	01/01/2010	C	01/01/2014	C	C	C
EB4	AD	C	C	11/01/2018	C	11/01/2019	C	C
	FD	C	C	01/01/2019	C	C	C	C
EB5	AD	C	09/15/2015	C	C	C	C	04/15/2018
	FD	C	12/15/2015	C	C	C	C	C

1st: Priority Workers (Extraordinary ability aliens, multinational companies executives/managers, outstanding prof./researchers)

2nd: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability.

3rd: Skilled Workers, Professionals, and Other Workers (Unskilled.)

4th: "Special Immigrants" (Religious & others)    

5th: Employment Creation (Investors) 

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule legal consultation.) 

The US will continue admitting startup entrepreneurs - an alternative to H-1B

The Biden Administration has announced that it will continue to receive applications for startup entrepreneurs to be paroled into the United States by withdrawing a 2018 notice of proposed rulemaking.  That notice proposed to remove the International Entrepreneur program from DHS regulations.

For those aspiring entrepreneurs who failed to be selected in the H-1B CAP drawing, the International Entrepreneur Rule may be a viable alternative for them to continue working and running their business in the United States. 

The International Entrepreneur Rule (IER) was created by the Obama Administration to provide another way for foreign entrepreneurs to invest and establish new businesses in the U.S. Slated to take effect on July 17, 2017 originally, the IER's implementation was halted and suspended by the Trump Administration at the last minute.  The delay and suspension was challenged by a group of the nation's venture capitalists in federal court.  On December 1, 2017, the U.S. District Court for the District of Columbia in National Venture Capital Association v. Duke vacated DHS' final rule to delay the implementation of the IER.  Biden Administration today has formally revived the program. 

Overseas entrepreneurs may continue file petitions to request parole status to enter the U.S. to establish and manage businesses, according to a recent announcement of USCIS.  Upon approval of their petitions, their spouses and children may also enter the U.S.  Further, their spouses may also apply for permission to work in the U.S.  

Under the IER, eligible startup entrepreneurs include those:

(1) Who have a significant ownership interest in the startup (at least 10 percent) and have an active and central role to its operations;

(2) Whose startup was formed in the United States within the past five years; and

(3) Whose startup has substantial and demonstrated potential for rapid business growth and job creation, as evidenced by proof of significant private financial investments ($250,000 or more) by U.S. citizens, legal residents or entities, or government grants and awards ($10,000 or more) duirng the preceding 18 months.  

Regarding item# above, applicants may also provide other compelling evidence too prove the potential of the startup if private investments and government grants received are less than the above thresholds. 

Each startup entity may petition up to three entrepreneurs for parole status for up to five years.  Their spouses and children under 21 may also be paroled into the United States.  Spouses will be allowed to apply for employment authorization and children will be allowed to attend public schools.

Details of the application process and requirements will be released soon.  Stay tuned for more details regarding this parole rule for entrepreneurs.

PERM Labor Certification Processing Times

 DOL posted the following PERM labor certification processing times as of  04/30/2021 -

	Priority Date	Average Number of Days to Process Applications
Analyst Reviews:	October 2020	221
Audit Review:	June 2020	348
Reconsideration Requests:	November 2020

Overseas Immigrant Visa Processing - Family Cases Prioritized Over Employment Cases

As embassies and consulates start to tackle the backlog of immigrant visa cases, the Department of State (DOS) has indicated that certain categories of visas be prioritized. 

The visas have been grouped into four tiers based on priority, with family reunion in mind. They are to be processed in this order, starting with Tier One:

• Tier One: Immediate relative intercountry adoption visas, age-out cases (when a beneficiary child will soon reach 21 years of age), and SQ and SI visas for Afghan and Iraqi nationals working with the U.S. government

• Tier Two: Immediate relative visas (spouse, parents or unmarried children under 21 of a U.S. Citizen), K-1 fiancé(e) visas; and returning resident visas

• Tier Three: Family preference visas (siblings of USC, spouse, parent, or child of green card holder), SE Special Immigrant Visas for certain employees of the U.S. government abroad

• Tier Four: All other immigrant visas, including employment preference (I-140 petition) and diversity visas

While immediate relatives and fiancés of U.S. Citizens will be prioritized, the DOS has also directed consulates to process and schedule appointments for visas in tiers Three and Four each month. 

The department also acknowledged that lower tier visa categories and diversity visas will likely not reach the statutory ceiling for FY 2021. Anyone in those categories will have to wait longer for the prioritized Tier One and Two backlogs to start clearing before normal processing times can resume. 

Applicants can get a better idea of the local consulate/embassy's processing capacity by looking at news and announcements on the consulate website. Local factors such as the COVID situation and any government restrictions will affect processing. 

USCIS Reverts to "Deference to Prior Decisions" Standard on Petition Extensions

In another change in accordance with President Biden's overhaul of the immigration system, USCIS will revert to a 2004 policy guidance when adjudicating requests to extend an approved petition or application. The guidance was rescinded in 2017 under the Trump administration but has been restored as of April 24, 2021. 

The applications that are involved are mostly work-related petitions that can be extended (H-1B, L-1A) and dependent status applications (H-4, L-2). 

Deference to Prior Decisions

The 2004 guidance specifies that an officer must "defer" to the decision made on the initial petition when determining eligibility to extend that petition. If the facts of the case remain the same, then the officer should respect the decision made on the initial petition. This policy makes extending status much easier. An H-1B petition, for example, with no changes in the job involved, the employer, and other such factors, should not have a different decision made based solely on these unchanged facts. 

Requests for Evidence May Still Be Issued

However, this definitely does not mean an extension is guaranteed or that a Request for Evidence (RFE) will not be issued. Other factors are taken into account, such as if there was a wrong interpretation of the facts and relevant statute in the first decision (Ex. An H-1B petition being approved despite the beneficiary having the wrong degree). New facts in the extension petition can also affect eligibility of the petitioner or beneficiary. 

 

USCIS officers also won't defer to decisions made by other U.S. government agencies, though they will factor them into their own decision. 

Overall, many nonimmigrant visa holders will have less issues when applying to extend their status, provided that the facts supporting their eligibility remain the same.

REAL ID Requirement Delayed 19 Months Until May 3, 2023

Enforcement of the federal Real ID standard has been pushed 19 months from October 1, 2021 to May 3, 2023.

The REAL ID Act is a set of minimum standards required of IDs to allow entry into domestic travel aircraft, federal facilities, and nuclear power plants, among other "official purpose" facilities. It serves to standardize ID requirements across all states and territories. If a state ID or driver's license does not meet these REAL ID requirements, then it cannot be used for the aforementioned purposes. 

The delay to May 3, 2023 is because while all states and four out of five territories have updated their driver's licenses to meet the REAL ID standards, many people have not been able to get their updated license. This is largely due to the pandemic affecting facilities that issue these new licenses. The Department of Homeland Security (DHS) estimates that only 43% of state-issued licenses are REAL ID compliant. 

The REAL ID standard is especially important for anyone applying for immigration benefits. Federal facilities include USCIS offices, which many applicants must visit for biometrics and interview purposes.  Missing one of these USCIS appointments can mean denial of an application. It is currently difficult to get an appointment for these license-issuing facilities. This 19 month push comes as a relief to many.

Hopefully, 19 months will be enough time for the pandemic to subside and for license-issuing operations to resume at normal efficiency. 

USCIS Expected to Suspend Fingerprinting for H-4, L-2 & E Spousal EAD Applicants

USCIS is expected to suspend biometrics appointments for I-765 applications filed by H-4, L-2, and E spouses applying for EADs.  Based on court filings by USCIS in a Washington federal lawsuit (Edakunni et al v. Mayorkas, 2:21-cv-00393) brought by EAD applicants challening lengthy processing time of the I-765 applications.  

Suspension of biometrics requirement is expected to be made avaliable to I-765 applications filed between 05/17/2021 and 05/23/2022.  Applications pending as of May 17, 2021 and have not yet been scheduled for biometric appointments are also expected to be covered.  

The policy change makes a lot of sense. Currently the principal applicants (e.g., L-1A, H-1B, etc.) are not required to undergo biometrics appontments.  There is no reason why their spouses must be subject to more stringent security requirements. 

However, it is important for applicants to continue attending any scheduled biometrics appointments until a formal announcement has been made by USCIS. 

Update (05/13/2021):  USCIS formally announced suspension of the biometrics requirements for the above-mentioned dependent applicants' I-539 applications effective May 17, 2021.  Biometrics fee for these applications is also suspended accordingly.  

President Proclamation Restricting Entry from India with Exceptions

Effective May 4, 2021, the United States is suspending entry of individuals into the United States, as nonimmigrants, of noncitizens who were physically present in India during the 14-day period preceding their entry or attempted entry into the United States, according to a President Proclamation announced on April 30, 2021.  The restriction is based on the current number of Covid cases in India.

The following individuals are exempt from this entry restriction: 

• Lawful permanent residents of the US (green card holders)
• Noncitizen nationals of the US
• Spouses of US citizens or premanent residents
• Parents or legal guardians of a US citizen or permanent resident, provided that the US citizen or lawful permanent resident is unmarried and under the age of 21
• Siblings of a US citizen or lawful permanent resident, provided that both are unmarried and under the age of 21;
• Children, foster children, or wards of a US citizen or  permanent resident, or who are a prospective adoptees seeking to enter the United States pursuant to the IR-4 or IH-4 visa classifications;
• Invitees of the United States Government for a purpose related to containment or mitigation of the virus;
• Persons holding C-1, D, or C-1/D nonimmigrant visas as a crewmember or any noncitizen otherwise traveling to the United States as air or sea crew;
• Diplomatic visa or NATO visa holders
• Travellers pursuant to Section 11 of the United Nations Headquarters Agreement
• Members of the US Armed Forces or their spouses and children
• Other individuals otherwise authorized by the US government 
• Individuals who are eligible for asylum, withholding of removal, or protection under the Convention Against Torture 

Individuals who meet the requirements for National Interest Exception waivers, as determined by the Department of State, are also eligible to enter the US.  They include fiances of US citizens, certain students, journalists, exchange visitors, people who provide support for critical infrastructure sectors, pilots, travellers for humanitarian, public health response, and national security reasons, etc. 

May 2021 Visa Bulletin: EB-1 & F-2A Current; EB-3 India Advances

EB-1 is still current for all countries for May. EB-2 China and India advance 3 months to 12/01/2016. EB-3 China also moves forward by 2 months, and India EB-3 advances 5 months to 02/01/2011.  

EB-3 India cutoff date continues to be more favorible than EB-2.  Eligible EB-2 Indian workers may consider filing an EB-3 "downgrade" I-140 petition in order to file the I-485 (Adjustment of Status ), I-765 (Employment Authorization), and I-131 (Advance Parole) earlier. 

Family 2A continues to be current. Green card holders may petition for their spouses. They also may file for their I-485 adjustment of status applications (including EAD and travel document) at the same time. 

AD: Dates for Final Action (Green Card Approval)           FD: Dates for Filing Applications Only

Family		Other Countries	China	India	Mexico	Philippines
F1	AD	10/22/2014	10/22/2014	10/22/2014	04/01/1998	02/01/2012
	FD	10/01/2015	10/01/2015	10/01/2015	03/01/2000	11/01/2013
F2A	AD	C	C	C	C	C
	FD	04/01/2021	04/01/2021	04/01/2021	04/01/2021	04/01/2021
F2B	AD	08/15/2015	08/15/2015	08/15/2015	08/15/1999	09/15/2011
	FD	06/22/2016	06/22/2016	06/22/2016	09/08/2000	07/01/2013
F3	AD	08/22/2008	08/22/2008	08/22/2008	10/15/1996	05/01/2002
	FD	06/22/2009	06/22/2009	06/22/2009	09/08/2000	07/01/2003
F4	AD	11/08/2006	11/08/2006	04/15/2005	08/08/1998	05/01/2002
	FD	10/01/2007	10/01/2007	12/01/2005	05/08/1999	07/01/2003

1st: Unmarried Sons and Daughters of Citizens (about 23,400 per year).
2A: The 2 "A" preference is for Spouses and Children (under 21 & unmarried) of LPR's.
2B: The 2 "B" Preference is for Unmarried Sons and Daughters (21 or older) of LPR's.
3rd: Married Sons and Daughters of Citizens (about 23,400 per year)

4th: Brothers and Sisters of Adult Citizens. (about 65,000 per year)

Employment		Other Countries	China	El Salvador Guatemala Honduras	India	Mexico	Philippines	Vietnam
EB1	AD	C	C	C	C	C	C	C
	FD	C	C	C	C	C	C	C
EB2	AD	C	12/01/2016	C	08/01/2010	C	C	C
	FD	C	01/01/2017	C	05/15/2011	C	C	C
EB3	AD	C	05/15/2018	C	02/01/2011	C	C	C
	FD	C	08/01/2018	C	01/01/2014	C	C	C
Other Workers	AD	C	08/01/2009	C	02/01/2011	C	C	C
	FD	C	09/01/2009	C	01/01/2014	C	C	C
EB4	AD	C	C	09/01/2018	C	03/15/2019	C	C
	FD	C	C	11/01/2018	C	C	C	C
EB5	AD	C	08/15/2015	C	C	C	C	02/15/2018
	FD	C	12/15/2015	C	C	C	C	C

1st: Priority Workers (Extraordinary ability aliens, multinational companies executives/managers, outstanding prof./researchers)

2nd: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability.

3rd: Skilled Workers, Professionals, and Other Workers (Unskilled.)

4th: "Special Immigrants" (Religious & others)    

5th: Employment Creation (Investors) 

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule legal consultation.)