Immigrants, Fiancées, Certain Exchange Visas Exempt From COVID Travel Restriction Policy

Great news has come for those who have been waiting indefinitely from around the world for the immigrants (permanent residence), K-1 fiancé visa, or certain J exchange visitor visas because of the geographic COVID restrictions.  The State Department just announced new exemptions from the travel ban for them.   

Embassies and consulates in South Africa, Brazil, the Schengen Area, the United Kingdom, Ireland, China, and Iran will resume processing of the aforementioned visas after they were announced exempt from the Presidential Proclamation travel bans.  These regions were subject to many months of travel ban due to their high number of Covid cases.  

Embassies and consulates will prioritize immediate family members of U.S. citizens and Special Immigrant Visa applicants. Nonimmigrant foreign diplomats, travelers with urgent needs, and travelers assisting with the pandemic crisis have higher priority than students, exchange visitors (J visa) and temporary employment workers.

The J visa categories included are travel by an au pair with special skills to care for a minor USC, LPR, or lawful nonimmigrant, an au pair whose care prevents a USC, LPR, or lawful nonimmigrant from becoming a public health charge, or an au pair that cares for a minor with parents providing care to COVID patients. Participants in J visitor exchange programs with a valid agreement between a foreign government and any U.S. federal, state, or local government entity that is designed to promote U.S. national interests, and the agreement was in effect before June 24, 2020, also qualify for travel exemption. 

Others include trainees and specialized teachers with program numbers starting with G-3 and G-5 on their DS-2019. Travel for exchange programs that support certain foreign policy objectives is also allowed. 

Aircraft pilots and workers applying for B-1/B-2, B-1, M-1 visas, or through the Visa Waiver Program are also given exemptions to travel. M-2 dependents also can travel if the principal M-1 visa holder's training program is over 4 weeks long. 

Our office has received notices of visa appointments soon after this policy change, but it is important to note that this new policy may not be enforced in the same pace in different locations. Applicants are considered for exemption when interviewed at their respective consulate.   Each consulate or embassy will have more specific information on how it will carry out this policy, based on their resources and local conditions. Applicants should check with their local consulate for more instructions. 

April 2021 Visa Bulletin: EB-1 Current for All Countries

For April, EB-1 is current for all countries.  Applicants may file for their I-485 applications with the I-140 petitions at the same time, including the EAD and travel document applications. 

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

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	09/01/2016	C	05/01/2010	C	C	C
	FD	C	01/01/2017	C	05/15/2011	C	C	C
EB3	AD	C	03/15/2018	C	09/01/2010	C	C	C
	FD	C	08/01/2018	C	01/01/2014	C	C	C
Other Workers	AD	C	06/01/2009	C	09/01/2010	C	C	C
	FD	C	09/01/2009	C	01/01/2014	C	C	C
EB4	AD	C	C	08/01/2018	C	02/01/2019	C	C
	FD	C	C	11/01/2018	C	C	C	C
EB5	AD	C	08/15/2015	C	C	C	C	12/15/2017
	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.) 

USCIS Cancelled Proposed Rule on Tougher Affidavit of Support Requirements

The Trump Administration issued a proposed rule on 10/22/2020 to beef up the legal requirements for Affidavit of Support requirements.  The rule has just been withdrawn by the Biden Administration on 03/22/2021.  

All family-based U.S. immigrant visa petitions must be supported by affidavits of suppport (I-864) and related documents.  In other words, anybody who wants to immigrate to the U.S. through a family relationship must ask "sponors" to support their immigrant visa petitions.  These sponsors must be either U.S. citizens or permanent residents.  

By executing an Affidavit of Support (AOS), a U.S. citizen or permanent resident promises to provide the  financial support to an intending immigrant and/or his family members if needed.  Such obligations will last until the immigrant has become a U.S. citizen or has worked for at least 10 years.  

The proposed rule on 10/22/2020 attempted to toughen the AOS legal requirements. For example, it proposed to limit the definition of household income to only income of the sponsor and his/her spouse but not other household family members.  It also proposed to change the definition of household size to include individuals for whom the sponsors have signed AOS or contracts (between household members) but such AOS and contracts have not become effective yet. 

USCIS has effectively withdrawn the proposed changes as of 03/22/2021.  Intending immigrants may now follow the previous instructions and requirements in regards to the Affidavit of Support.  This change was implemented after the Biden Administration's cancellation of the Public Charge Rule, which required immigrants and their sponsors to provide extenstive financial information to support immigrant petitions. 

Nonimmigrant Visa Interview Waiver Eligibility Expanded to 48 Months

Typically, anyone applying for a nonimmigrant visa, such as H-1B, L-1A, F-1, B-1/B-2, etc., at a consulate must undergo an interview first. One way to waive this interview is if the applicant already held a visa of the same category which expired no more than 24 months ago. Now, the Department of Homeland Security is temporarily increasing this 24 month period to 48 months. This rule will be in effect until December 31st, 2021. 

The DHS is taking this measure to reduce transmission of the coronavirus while continuing to process consulate cases, which were heavily delayed in 2020 due to the pandemic.

If you are now eligible for an interview waiver, please check your local embassy or consulate for more specific instructions on applying for one.

Reopening of Denied H-1B Petitions Relating to Client Site Employment, Computer Positions

Have your H-1B petitions been denied by USCIS in the past few years based on reasons relating to third-party worksite employment?  Or based on findings that a computer position was not a qualified H-1B specialty occupation?  If so, you may be able to request reopening and reconsidering of your petition by USCIS. 

USCIS announced on 3/12/2021 that it may allow petitioners to file motions to reopen and/or reconsider denied I-129 H-1B petitions if the denials are based on three rescinded USCIS memos:  3/31/2017 memo (regarding computer programmer positions), 1/8/2010 memo (regarding employer-employee relationship), and 2/22/2018 memo (regarding requirements of contracts and itineraries for third-party assignments). 

The regulation generally requires that motions to reopen and motions to reconsider be filed within 30 days of the adverse agency decision.  However, USCIS announced that it may accept motions relating to the rescinded memos as long as they are filed before the end of the H-1B validity period requested.  So, for example, if a denied petition requested for H-1B employment for a worker from 10/1/2018 to 9/30/2021, the parties would have until 09/30/2021 to file a motion.

If your H-1B petition was denied for the following reasons, you may be able to request reopening of your petition for reconsideration by USCIS:

• A finding that your computer-related position (e.g., programmer) was not specialty occupation
• A finding that there was no valid employer-employer relationship between the petitioner and the H-1B worker
• A finding that there was insufficient contractual relationship between the petitioner and the end client (e.g., failure to produce end-client letter, contracts, itineraries, statements of work, etc.)
• A finding that there was no or insufficient non-speculative assignments to support the H-1B petition
• A finding that there was insufficient control by the petitioner over the H-1B worker during the employment period

These are just some examples of reasons for reopening. There may be other valid reasons.  In some situations, it may not be worthwhile to ask for reopening.  For some petitions including first time H-1B CAP petitions, reopening may make sense as it is the only way to save the allocated H-1B visa number.   When in doubt, you should consult with an experienced immigration attorney.

Court Rules on H-1B Computer Programmer Requirements

H-1B visa requirements have been an area of controversy, particularly in regards to the definition of specialty occupation.  

Recently, it was decided by a district court that USCIS' denial of a H-1B petition for a computer programming position was arbitrary and capricious. The applicant has a Bachelor's degree in computer programming, which USCIS determined as insufficient qualification for the specialty occupation position.  Computer programmers have been traditionally been recognized by the immigration services as a specialty occupation.

The main issue was USCIS' interpretation of the Department of Labor's Occupational Outlook Handbook (OOH), a key reference for determining if a position is qualified for H-1B. The OOH reads that "most" computer programmers have a Bachelor's and that it is the typical education level of most computer programmers. However, USCIS concluded that the OOH did not specify a Bachelor's degree in a specific area of study was the minimum for a computer programmer and denied the plaintiff's petition. The decision was challenged and brought before the district court.

The court decided that there was no ambiguity in the OOH text and that USCIS failed to consider key evidence presented in the petition. The order was to reverse and remand.  The Ninth Circuit Court of Appeals also agreed with the decision in Innova Solutions v. Baran, No. 19-16849 (9th Cir. 2020). 

This outcome is a relief for foreign workers. Had USCIS won this case, many H-1B petitions could be denied simply because the OOH does not word for word state a certain specific degree is acceptable. Many Bachelor degree holders seeking H-1B would be turned away despite having an area of study in exactly the job position, just as the plaintiff did. 

USCIS issued a memo on 2/3/2021 based on these court decisions, rescinding a previous policy memo (PM-602-0142) dated 3/31/2017 (which invalided a previous policy memo by Terry Way, former director of the Nebraska Service Center on computer programmer positions).  The result is that applicants who hold computer programmer positions should have a better chance for approval because of this policy change. 

USCIS Relaxes Requirements for F-1/OPT I-765 EAD Applications

Processing delays on USCIS applications have been hitting F-1 students applying for OPT (Optional Practical Training) especially hard. 

Delays have exacerbated the usual issues OPT applicants deal with. USCIS generally does not factor processing time into the OPT approval period; if processing takes several months, much of that time cuts into the approved OPT period, leaving a fraction of the requested time. Hence, some I-765 may only be approved for very short periods of time.  Filing windows are also particularly tight, leaving little room for refiling in case of rejection. Add lengthy delays to all of this and it is no wonder OPT applicants are having a difficult time.

If you are a student experiencing issues with the above, know that USCIS has introduced flexibility measures that apply to applications received from October 1, 2020 to May 1, 2021. 

For these applications, the requirement that Post-Completion OPT end within 14 months of graduation is lifted so that the full period recommended by a student's DSO can be applied. The 14 months will be counted from the date of approval. Students who applied during the relevant period but were not granted the full requested time can file Form I-765 to requested a correction. Note that this seems to apply only to Post-Completion OPT.

USCIS is also addressing tight filing deadlines and rejection for both OPT and STEM OPT applications. A I-765 application may have been timely filed but was rejected as the filing window closed, leaving no option for refiling. If this happened to you and your rejected application was received from October 1, 2020 to May 1, 2021, you have until May 31, 2021 to refile. USCIS will treat the refiled application as if it were received on the date of the original. The I-20 also does not need to be updated for the refile if it was valid with the original. 

Also, leniency will start to be shown with missing or unacceptable signatures for OPT and STEM OPT I-765 applications. Instead of the usual rejection, USCIS will issue an RFE, sparing applicants from a potentially too-late refiling. 

If any of this applies to you, make sure to communicate with your DSO and take note of when your application was received. It is recommended that you consult an immigration attorney if you are unsure of what actions to take.

The Public Charge Rule is Dead

Since the advent of the new presidency, immigration policy has drastically changed. Most recently, the public charge final rule that was enforced on and off amidst lawsuits and court injunctions has finally died out. The Secretary of Homeland Security himself announced on March 9th, 2021 that the federal government will no longer seek to implement the public charge rule, decisively putting the final nail in the coffin.

So what does this mean for applicants? Any evidence and information submitted only to meet the public charge rule requirements will not be counted in adjudications from March 9th, 2021 onward. For I-485 applicants, it means Form I-944 Declaration of Self-Sufficiency and its required evidence. For nonimmigrant visa applicants, this means public benefit questions in Form I-129 (Part 6), Form I-129CW (Part 6), Form I-539 (Part 5), and Form I-539A (Part 3).  

For applications submitted on or after March 9th, these public charge forms and evidence are no longer required. Applications filed without their respective public charge final rule sections completed will not be rejected starting March 9th, 2021.

Sections of Requests for Evidence (RFE) or Notices of Intent to Deny (NOID) that address public charge final rule aspects and that are due on or after March 9th, 2021 do not need to be answered. However, other parts of the RFE/NOID unrelated to the public charge rule still must be responded to.

Overall, the public charge final rule is done and all the application requirements that came with it are no longer to be met. Immigrant visa applicants will no longer be heavily judged on their use of public benefits, health insurance, assets, and other self-sufficiency factors. It will be much easier to petition for family members to enter and stay in the U.S.  

DHS will revert back to a 1999 policy guidance issued by the former INS on the issue of public charge as a ground of admissibility.  The previous policy adopts a "totality of the circumstance test" and emphasizes financial help from family and friends.  Applicants who have received cash public assistance income maintenance (e.g, SSI) and/or received long-term institutionalized care (i.e., nursing home) must provide additional evidence to prove that they will not become public charge.  Receipt of other non-cash benefits such as public school education, school lunch, food stamps, emergency care, etc., would not cause denial of applications. 

We can expect the forms and their instructions to be updated in the near future to reflect this policy change. USCIS will also issue more guidance on this topic soon.

Biden Removed Immigrant Visa Ban

For the past year, immigrants have not been allowed to enter the U.S. due to former President Trump's Presidential Proclamation 10014. President Biden rescinded this proclamation on February 24, 2021 and reopened the American door to immigrants with approved petitions.  It should be noted that Proclamation 10014 and its extensions were set to expire on March 31, 2021.  

Due to this policy change, the American Embassies and Consulates will take actions as follows:

Immigrant visa applicants that have not yet been interviewed: Their applications will be processed according to local Consulate's existing phased resumption of visa services timeline.

Immigrants with valid visas but have been refused entry:  Some immigrants have already been interviewed and issued valid visas but refused entry due to 10014.  The U.S. embassy or consulate will reconsider their cases and notify them if additional documents or information are needed.  

Diversity Visa 2020 (DV-2020) applicants with valid visas:  If you have been issued diversity visas for  FY2020, you should seek entry into the United States immediately.  You passport may have this annotation, “Entry Subject to PP 10014.”  It should not be a problem any more. 

Individuals with expired DV-2020 visas:  They will not be issued replacement visas.  However, there is an exception.  Applicants who received diversity visas in 2020 as a result of orders in the court case Gomez v. Trump may travel to the United States on an expired visa.   The order may be changed or amended in the future. Hence, this group of DV applicants should come to the U.S. as soon as possible.  Further, the State Department has granted a national interest exception for Diversity Visa (DV) applicants for the 2020 fiscal year (DV-2020) with a valid immigrant visa.  They should be allowed to enter despite the geographic COVID-19 Presidential Proclamations (see below). 

DV-2020 without a valid visa:  Diversity visa applicants for DV-2020 who have not issued visas before September 30, 2020 will not be interviewed, scheduled, or reconsidered for visas.  The reason is that DV-2020 requires that visas must be issued before the end of the fiscal year, which ended on September 30, 2020.

Diversity Visa 2021 applicants:  DV applicants for the 2021 fiscal year (DV-2021) will be notified of  the scheduling of an interview based on the local embassy or consulate's reopening schedule. 

Geographic COVID-19 restrictions remain in effect:  President Biden keeps the entry restrictions against certain countries remain in effect.  Individuals who have been in these countries within the last 14 days are not allowed to enter the U.S.  The countries include: People’s Republic of China, Islamic Republic of Iran, Schengen Area, United Kingdom, Republic of Ireland, Brazil, and South Africa.  However,  immigrant visa applicants who are spouses  or children of U.S. citizens (IR/CR-1, IR/CR-2, IR/IH-3, and IR/IH-4), as well as spouses and minor children of LPRs (F2A), are exempt from the geographic COVID-19 P.P.s.  All other immigrant visa applicants including K fiancé nonimmigrant visa applicants remain subject to these geographic restrictions.  

Resumption of normal visa services:  U.S. embassies and consulates will continue resumption of normal visa services based on each location's situation.  They will continue to provide emergency and mission- critical visa services.  Applicants are advised to check the website of their local U.S. embassy or consulate for updates on what visa services are currently available.

Biden's Immigration Plan has been Introduced by Congress

The U.S. Citizenship Act of 2021, a major policy initiative of President Biden, has been formally introduced in both the Senate and the House last week.  The full text of the proposal is 353 pages long.  It is a comprehensive plan that touches on all major aspects of the immigration system.  

The part about providing a path to citizenship for the undocumented gets most of the headline attention.  A good portion of the proposal is actually devoted to reform legal immigration. The following is a summary:  

• Recaptures from previous years unused immigrant visa numbers in both family-based and employment-based categories for current use.
• The number of immigrant visas allocated to immediate relatives from the previous year is no longer deducted from the annual visa quota.
• The annual cap of employment-based immigrant visas is increased from 140,000 to 170,000.
• Reclassify spouses and minor children of lawful permanent residents as immediate relatives (thus making them no longer subject to the annual visa cap).
• Spouses and children will no longer be counted against employment-based numerical limits in the employment-based visa categories (thus indirectly increasing the number of employment-based immigrant visas by a few multiples) . 
• The current per-county limit of immigrant visa allocation will be raised from 7% to 20%.
• Cancel the 3-year and 10-year bars for individuals who have been unlawfully present in the U.S.
• Death of the petitioner or a principal applicant will no longer terminate the related immigration petition.
• Fiancés of U.S. citizens and their children will be allowed to apply for adjustment of status without going through the K-1 visa or immigrant visa.   K-2 children will no longer age out.
• An immigrant visa applicant will retain the earliest priority date of any petition, regardless of the visa categories. Hence, an employment-based applicant may retain the priority date of a previously-filed family visa petition.  
• Graduates of accredited U.S. PhD programs in STEM fields will no longer be subject to the employment-based immigrant visa limits, making visa numbers immediately available to them. 
• Similarly, applicants and their dependents with approved I-140 petitions with priority dates older than 10 years will no longer be subject to the employment-based immigrant visa limits, thus making green cards immediately available to them.
• AC-21 one-year extension will be extended to other visa categories (F-1, O-1, L-1) once their labor application or I-140 petition has been pending for 365 days or longer.
• An additional 30,000 employment-based immigrant visa numbers will be allocated to the EB-3 Other Worker category (unskilled workers with less than 2 years training, education, or experience). 
• DHS is allowed to allocate H-1B visas based on the level of wages offered by employers. (Similar to Trump's wage ranking rule).
• The F-1 visa will be converted to be a “dual-intent” nonimmigrant visa category (and hence F-1 students will no longer be required to prove intention to return home.)
• Allow H-1B workers to extend status beyond the normal six-year limit until their adjustment of status (I-485) has been processed in the EB-1, EB-2, or EB-3 category.  H-4 children will not age out if H-4 status was initially granted before the age of 18.  A child's age in EB categories is frozen on the date when the labor application or I-140 petition was filed. 

It is important not to rely on the details of this initial proposal yet.  The Senate and the House must first agree on a final version before it can be sent to the President for signature.  Due to the controversial nature of immigration issues, extensive debates and compromises are expected before a final version can be agreed on. 

March 2021 Visa Bulletin: EB-1, EB-2, EB-3 Advance for India and China

There is good news for EB applicants in the recently released March Visa Bulletin:

- EB-1 China and India move forward by 7 months

- EB-2 and EB-3 China advance 1 month and 38 days respectively

- EB-2 India advances 95 days and EB-3 advance 3 months

- China's Other Worker advances 1 month and India advances 3 months

Family categories have slight movements. The final action date for F2A applicants remains "Current".

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

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

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	08/01/2020	C	08/01/2020	C	C	C
	FD	C	C	C	C	C	C	C
EB2	AD	C	07/15/2016	C	01/15/2010	C	C	C
	FD	C	10/01/2016	C	05/15/2011	C	C	C
EB3	AD	C	02/08/2018	C	07/01/2010	C	C	C
	FD	C	06/01/2018	C	01/01/2014	C	C	C
Other Workers	AD	C	05/01/2009	C	07/01/2010	C	C	C
	FD	C	07/01/2009	C	01/01/2014	C	C	C
EB4	AD	C	C	06/01/2018	C	01/01/2019	C	C
	FD	C	C	09/01/2018	C	C	C	C
EB5	AD	C	08/15/2015	C	C	C	C	10/22/2017
	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.)