USCIS is Using Fingerprints in File for EAD and Travel Document Applications

Due to COVID-19, USCIS advised the public in meetings that existing fingerprints and biometrics in file are being used in I-765 Employment Authorization Document (EAD) applications. Separately, our law office has also received notices from USCIS that it is applying existing fingerprints of applicants in I-131 travel document (e.g., advance parole) applications. 

Hence, applicants  of these applications do not have to attend another biometrics appointment at an Application Support Center (ASC). 

USCIS Amends Policy on TPS Parole Status

USCIS is amending its Policy Manual regarding Temporary Protected Status (TPS) on 12/20/2019.  The agency confirms that the U.S. may not remove TPS beneficiaries from the U.S. by law.  USCIS also issues advance parole travel document to them after approving their requests to travel abroad.  

However, USCIS takes the position that, although TPS beneficiaries may travel and return using parole documents, they resume their pre-departure status after their return to the U.S.  For example, if a person was subject to an order of removal from the U.S. previously, the person's departure and return based on TPS parole is not an execution of the removal order. In this situation, the person will remain subject to the order of removal. 

The new policy also affects TPS beneficiaries' ability to apply for adjustment of status.  To be eligible for adjustment of status, an applicant must establish that he/she has been inspected and admitted or paroled by an immigrant officer.  Some courts have held that TPS beneficiaries are considered to have been inspected and/or paroled, especially after they have returned using advance parole documents.  Under this new policy, USCIS would not approve TPS  parolee's adjustment applicant unless he/she was previously inspected and admitted or paroled into the United States.  

I-131 Travel Document Denied Due to International Travel

If you have an advance parole travel document application pending, do not leave the United States.   USCIS is denying pending Forms I-131 for abandonment if the applicant travels internationally.  

Generally, when a person applies for adjustment of status, he or she is not allowed to depart from the U.S. without first obtaining an advance parole travel document.  Such departure is considered an abandonment of the I-485 adjustment application.  

However, there are some exceptions to this general rule.  If a person is possession of certain visas such as H-1B, L-1 or K visas, the person is allowed to travel on these visas without an approved an advance parole application.  

Recently, USCIS has been denying Form I-131 advance parole applications for abandonment in instances where the applicant has traveled abroad while the I-131 application was still pending. The pending Form I-131 application is being denied even if the applicant has a separate valid advance parole document or a valid H, K, L, or V visa to return to the United States. 

In the denial notification, USCIS points to the Form I-131 instructions which state that if the applicant departs the United States before the Advance Parole Document is issued, the application for an Advance Parole Document will be considered abandoned. In the past, USCIS has approved advance parole renewal applications for individuals who travel abroad during the pendency of the application with a valid Advance Parole Document or a valid H, K, L, or V visa.  Nevertheless, USCIS management has confirmed that the current policy is to deny such applications. 

This policy may cause some inconvenience but it can be avoided with careful timing of travel plans. Further, applicants may wish to consider submitting a new Form I-131 application to USCIS if a pending application is denied, as well as avoiding international travel during the pendency of the advance parole application. 

USCIS Reminds Individuals Affected by Hurricane Sandy of Temporary Immigration Relief Measures

U.S. Citizenship and Immigration Services (USCIS) reminds customers affected by Hurricane Sandy of certain U.S. immigration benefits or relief that may be available to them.

USCIS understands that a natural disaster can affect an individual’s ability to maintain lawful immigration status or obtain certain other immigration benefits. Eligible individuals may request or apply for temporary relief measures, including:

• A change or extension of nonimmigrant status for an individual currently in the United States, even when the request is filed after the authorized period of admission has expired;
• Extension or re-parole of individuals previously granted parole by USCIS;
• Expedited adjudication of off-campus employment authorization applications for F-1 students experiencing severe economic hardship;
• Expedited adjudication of employment authorization applications; and
• Assistance to Legal Permanent Residents (LPR) stranded overseas without immigration or travel documents, such as Permanent Resident Cards (Green Cards). USCIS and the Department of State will coordinate on these matters when LPRs are stranded in places that do not have a local USCIS office.

Where appropriate, USCIS may exercise its discretion to allow for delays in filing resulting from the hurricane. This may include, for example: 

• Assistance to those who have not appeared for an interview or submitted required forms of evidence. You may show how the disrupting event affected your connection to USCIS and your ability to appear or submit documents as required; and
• Assistance to those who have not been able to respond to Requests For Evidence (RFEs) or Notices of Intent to Deny (NOID). USCIS will extend the deadline for individuals to respond to RFEs or NOIDs by 30 days. This will apply to all RFEs and NOIDs with a deadline of October 26 through November 26, 2012. During this time, USCIS will not issue denials based on abandonment of an application or petition.

Visitors traveling under the Visa Waiver Program may visit a local USCIS office for assistance. Please check whether your local USCIS office is open before going. Individuals affected by the hurricane who are at a U.S. airport may contact the nearest U.S. Customs and Border Protection office for assistance.

For more information on USCIS humanitarian programs, visit www.uscis.gov or call the National Customer Service Center at 1-800-375-5283. Hearing-impaired persons can call 1-800-767-1833.

Please check back at www.uscis.gov for any additional information that may follow.

 (Source: USCIS.gov)

Last updated:11/02/2012

BIA held Advance Parole Absence does not trigger Unlawful Presence Bar

In a recent BIA decision, the Board surprisingly held that a foreigner who left the United States after securing an “advance parole” travel document from the DHS is not considered a departure for the purposes of determining whether the person is subject to the 10-year unlawful presence bar.  The Board held that the foreigner is therefore allowed to apply for adjustment of status to become permanent resident under section 245(i) of the Immigration and Nationality Act. 

In Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012), the respondents, husband and wife, legally entered the U.S. in 1999 and 2000 respectively.  After overstaying their nonimmigrant visas, they were present in the U.S. without legal status for more than five years.  Subsequently, the male respondent sought to apply for legal status based on an approved employment based immigrant visa petition filed on his behalf by an employer pursuant to section 245(i) of the Act.  However, the couple made a trip to India to attend totheir aging parents after securing advance parole travel documents from the DHS.  Upon their return to the United States with advance parole, DHS argued that they were barred from applying for adjustment of status because they were inadmissible to reenter the United States for ten years pursuant to section 212(a)(9)(B)(i)(II) of the Act.  This section of the law bars foreigners from admission for ten years if they departed the United States after having been unlawfully present for more than one year.

The BIA previously held in Matter of Lemus that section 245(i) does not overcome the unlawful presence bars, absent a waiver.  In Lemus, the respondent did not have an advance parole document when he left the United States.  Here, the BIA carved out an exception for the respondents in Matter of Arrabally and Yerrabelly, explaining that their absence from the U.S. after a grant of advance parole did not constitute a departure that would trigger the unlawful presence bars.  The BIA noted the advance parole (1) was approved in advance by the United States Government on the basis of a merits application; (2) presupposed the alien’s authorized return thereafter, and (3) was requested solely for the purpose of preserving the alien’s eligibility for adjustment of status.  The BIA seemed to be saying that the respondents merely took a brief trip outside the United States with no intention to depart.

Hence, the BIA concluded that the respondents are not inadmissible for adjustment of status pursuant to section 212(a)(9)(B)(i)(II).  Therefore, they are eligible to apply for adjustment of status based on section 245(i).  The decision no doubt is good news for applicants who must travel for emergency reasons.  However, this decision could still be challenged by the government in federal court.  For example, as the dissenting opinion noted, a recent Third Circuit decision also involved advance parole travel but reached a different conclusion.  Therefore, it is very important for applicants to fully understand the legal ramifications before travelling on advance parole.  

H-1B Cap-Gap Relief for FY2013

(The USCIS released the following Q&As on H-1B Cap-Gap Relief for FY2013 on 03/29/2012.)


Extension of Post-Completion Optional Practical Training (OPT) and F-1 Status for Eligible Students under the H-1B Cap-Gap Regulations -- Questions and Answers

Introduction

These Questions & Answers address the automatic extension of F-1 student status in the United States for certain students with pending or approved H-1B petitions (indicating a request for change of status from F-1 to H-1B) for an employment start date of October 1, 2012 under the Fiscal Year (FY) 2013 H-1B cap.

Questions & Answers

Q1. What is “Cap-Gap”?

A1. Current regulations allow certain students with pending or approved H-1B petitions to remain in F-1 status during the period of time when an F-1 student’s status and work authorization would otherwise expire through the start date of their approved H-1B employment period.  This is referred to as filling the “cap-gap,” meaning the regulations provide a way of filling the “gap” between the end of F-1 status and the beginning of H-1B status that might otherwise occur if F-1 status is not extended for qualifying students. 

Q2. How does “Cap-Gap” Occur?

A2. An employer may not file, and USCIS may not accept, an H-1B petition submitted more than six months in advance of the date of actual need for the beneficiary’s services or training.  As a result, the earliest date that an employer can file an FY 2013 H-1B cap-subject petition is April 2, 2012 for employment starting not before October 1, 2012.  If USCIS approves the H-1B petition and the accompanying change of status request, the earliest date that the student may start the approved H-1B employment is October 1, 2012.  Consequently, F-1 students whose periods of authorized stay expire before October 1, 2012, and who do not qualify for a cap-gap extension, are required to leave the United States, apply for an H-1B visa at a consular post abroad, and then seek readmission to the United States in H-1B status, for the dates reflected on the approved H-1B petition. 

Q3. Which petitions and beneficiaries qualify for a cap-gap extension?  

A3. H-1B petitions that are timely filed on behalf of an eligible F-1 student and request a change of status to H-1B on October 1, 2012 qualify for a cap-gap extension. 

Timely filed means that the H-1B petition (indicating change of status rather than consular processing) was filed during the H-1B acceptance period, which begins Monday April 2, 2012, while the student's authorized F-1 duration of status (D/S) admission was still in effect (including any period of time during the academic course of study, any authorized periods of post-completion Optional Practical Training (OPT), and the 60-day departure preparation period, commonly known as the “grace period”).

Once a timely filed request to change status to H-1B on October 1, 2012 has been made, the automatic cap-gap extension will begin and will continue until the H-1B petition adjudication process has been completed.  If the student’s H-1B petition is selected and approved, the student’s extension will continue through September 30, 2012 unless the petition is denied, withdrawn, or revoked.  If the student’s H-1B petition is not selected, the student will have the standard 60-day grace period from the date of the rejection notice or their program end date, whichever is later, to prepare for and depart the United States. 

Students are strongly encouraged to stay in close communication with their petitioning employer during the cap-gap extension period for status updates on the H-1B petition processing. 

Q4. How does a student covered under the cap-gap extension obtain proof of continuing status? 

A4. The student should go to their Designated School Official (DSO) with evidence of a timely filed H-1B petition (indicating a request for change of status rather than for consular processing), such as a copy of the petition and a FedEx, UPS, or USPS Express/certified mail receipt.  The student’s DSO will issue a preliminary cap-gap I-20 showing an extension until June 1, 2012. 

If the H-1B petition is selected for adjudication, the student should return to his or her DSO with a copy of the petitioning employer’s Form I-797, Notice of Action, with a valid receipt number, indicating that the petition was filed and accepted.  The student’s DSO will issue a new cap-gap I-20 indicating the continued extension of F-1 status.  

Q5. Is a student who becomes eligible for an automatic cap-gap extension of status and employment authorization, but whose H-1B petition is subsequently rejected, denied or revoked, still allowed the 60-day grace period?

A5. If USCIS denies, rejects, or revokes an H-1B petition filed on behalf of an F-1 student covered by the automatic cap-gap extension of status, the student will have the standard 60-day grace period (from the date of the notification of the denial, rejection, or revocation of the petition) before he or she is required to depart the United States.

For denied cases, it should be noted that the 60-day grace period does not apply to an F-1 student whose accompanying change of status request is denied due to the discovery of a status violation.  The student in this situation is not eligible for the automatic cap-gap extension of status or the 60-day grace period.  Similarly, the 60-day grace period and automatic cap-gap extension of status would not apply to the case of a student whose petition was revoked based on a finding of fraud or misrepresentation discovered following approval.  In both of these instances, the student would be required to leave the United States immediately.

Q6. May students travel outside the United States during a cap-gap extension period and return in F-1 status? 

A6. No. A student granted a cap-gap extension who elects to travel outside the United States during the cap-gap extension period will not be able to return in F-1 status.  The student will need to apply for an H-1B visa at a consular post abroad prior to returning.  As the H-1B petition is for an October 1, 2012 start date, the student should be prepared to adjust his or her travel plans, accordingly.

Q7. What if a student’s post-completion OPT has expired and the student is in a valid grace period when an H-1B cap-subject petition is filed on their behalf?  It appears that F-1 status would be extended, but would OPT also be extended? 

A7. F-1 students who have entered the 60-day grace period are not employment-authorized.  Consequently, if an H-1B cap-subject petition is filed on the behalf of a student who has entered the 60-day grace period, the student will receive the automatic cap-gap extension of his or her F-1 status, but will not become employment-authorized (since the student was not employment-authorized at the time H-1B petition was filed, there is no employment authorization to be extended).   

Q8. Do the limits on unemployment time apply to students with a cap-gap extension?

A8:  Yes.  The 90-day limitation on unemployment during the initial post-completion OPT authorization continues during the cap-gap extension.

Q9. What is a STEM OPT extension? 

A9. F-1 students who receive science, technology, engineering, and mathematics (STEM) degrees included on the STEM Designated Degree Program List, are employed by employers enrolled in E-Verify, and who have received an initial grant of post-completion OPT employment authorization related to such a degree, may apply for a 17-month extension of this authorization.  F-1 students may obtain additional information about STEM OPT extensions on the Student and Exchange Visitor Program website at www.ice.gov/sevis.

Q10. May a student eligible for a cap-gap extension of post-completion OPT employment authorization and F-1 status apply for a STEM OPT extension while he or she is in the cap-gap extension period? 

A10. Yes.  However, such application may not be made once the cap-gap extension period is terminated (e.g., if the H-1B petition is rejected, denied, or revoked), and the student has entered the 60-day departure preparation period.

Q11. In recent years, employers have been able to file H-1B cap-subject petitions after April 1, and have not always requested an October 1 start date.  However, some students’ OPT end dates were nevertheless shortened to September 30, even though their H-1B employment would not begin until a later date.  What should the student do to correct this?

A11. The student should contact their DSO.  The DSO may request a data fix in SEVIS by contacting the SEVIS helpdesk. 

Q12. If the student finds a new H-1B job, can he or she continue working with his/her approved EAD while the data fix in SEVIS is pending?

A12. Yes, if the (former) H-1B employer timely withdrew the H-1B petition and the following conditions are true:

§  the student finds employment appropriate to his or her OPT;

§  the period of OPT is unexpired; and

§  the DSO has requested a data fix in SEVIS. 

Note: If the student had to file Form I-539 to request reinstatement to F-1 student status, the student may not work or attend classes until the reinstatement is approved.  

Q13. If the student has an approved H-1B petition and change of status, but is laid off/terminated by the H-1B employer before the effective date, and the student has an unexpired EAD issued for post-completion OPT, can the student retrieve any unused OPT?

A13.Yes.  The student will remain in student status and can continue working OPT using the unexpired EAD until the H-1B change of status goes into effect.  The student also needs to make sure that USCIS receives a withdrawal request from the petitioner before the H-1B change of status effective date.  This will prevent the student from changing to H-1B status.  Once the petition has been revoked, the student must provide their DSO with a copy of the USCIS acknowledgement of withdrawal (i.e., the notice of revocation). The DSO may then request a data fix in SEVIS, to prevent the student from being terminated in SEVIS on the H-1B effective date, by contacting the SEVIS helpdesk.

If USCIS does not receive the withdrawal request prior to the H-1B petition change of status effective date, then the student will need to stop working, file a Form I-539 to request reinstatement, and wait until the reinstatement request is approved before resuming employment.

Q14. In cases where a student is authorized to work OPT past the H-1B change of status effective date, can the student continue working on OPT if a request to revoke/withdraw the H-1B change of status is submitted to USCIS?

A14. If the H-1B revocation occurs before the H-1B change of status effective date, the student may continue working while the data fix remains pending, because the student will still be in valid F-1 status.

If the H-1B revocation occurs on or after the H-1B change of status effective date, the student will need to stop working before the H-1B change of status effective date, apply for reinstatement, and wait until the reinstatement request is approved before resuming employment.

NOTE:  This is NOT a cap-gap situation since the student has an EAD authorizing OPT beyond the H-1B change of status effective date.

Q15. Do students remain in valid F-1 status while the request to change the OPT end date is pending?

A15. If the H-1B revocation occurs before the H-1B change of status effective da te, the student is still deemed to be in F-1 status while the data fix is pending.

If the H-1B revocation occurs after the H-1B change of status effective date, the student will not be in valid F-1 status and will therefore either need to apply for reinstatement or depart the United States. 

Last updated:03/29/2012

USCIS to Issue Single Card for EAD and Advance Parole

The USCIS made the following announcements on Feb. 11, 2011:

USCIS to Issue Employment Authorization and Advance Parole Card for Adjustment
of Status Applicants

U.S. Citizenship and Immigration Services (USCIS) today announced that it is now issuing employment and travel authorization on a single card for certain applicants filing an Application to Register Permanent Residence or Adjust Status, Form I-485. This new card represents a significant improvement  from the current practice of issuing paper Advance Parole documents. The card looks similar to the current Employment Authorization Document (EAD) but will include text that reads, "Serves as I-512 Advance Parole." A card with this text will serve as both an employment authorization and Advance Parole document. The new card is also more secure and more durable than the current paper Advance Parole document. An applicant may receive this card when he or she files an Application for Employment Authorization, Form I-765, and an Application for Travel Document,Form I-131, concurrently with or after filing Form I-485. 

USCIS will continue to issue separate EAD and Advance Parole documents as warranted. Employers may accept the new card as a List A document when completing the Employment Eligibility Verification, Form I-9.

As with the current Advance Parole document, obtaining a combined Advance Parole and employment authorization card allows an applicant for adjustment of status to travel abroad and return to the U.S. without abandoning the pending adjustment application. Upon returning to the U.S., the individual who travels with the card must present the card to request parole through the port-of-entry. The decision to parole the individual is made at the port-of-entry. Individuals who have been unlawfully present in the U.S. and subsequently depart and seek re-entry through a grant of parole may be inadmissible and ineligible to adjust their status.