September 2021 Visa Bulletin
Each month, the U.S. Department of State (DOS) publishes the Visa Bulletin, listing all "preference" categories and states whether or not a backlog exists for each one. In addition, the categories are folded into two charts: “Final Action” chart and a “Dates for Filing” chart for Family-Based immigration and Employment-Based immigration.
For September 2021, USCIS has indicated that for Employment-Based immigration, the “Final Action” chart should be used in establishing eligibility to file the I-485 Adjustment of Status petitions. This means that those who filed an Immigrant Petition [Form I-140] on or before the date given in the Visa Bulletin may file an application for permanent resident status [Form I-485].
In September, the EB-1 preference category on the Final Action Chart for all countries including China and India will be “current.” This means the I-485 applications may be filed immediately with the Form I-140. Also, any otherwise qualified national of China or India with an approved EB-1 I-140 may file the I-485 in September.
The EB-2 preference category remains “current” for all countries other than China and India which means that individuals in these categories may immediately file I-485 applications. China and India remain backlogged on both the Final Action and Dates for Filing Charts.
The EB-3 preference category is also “current” for all countries other than China and India which means that individuals in these categories may also immediately file Form I-485 applications. China and India remain backlogged on both the Final Action and Dates for Filing Charts.
If you have questions about planning, please feel free to reach out and schedule a consultation with one of the attorneys at Iandoli, Desai & Cronin (info@iandoli.com).
ICE Extends I-9 Flexibility
On August 31, 2021, U.S. Immigration and Customs Enforcement (ICE) announced an extension of the flexibilities in rules related to Form I-9 compliance that was initially granted last year. Due to the continued precautions related to COVID-19, the Department of Homeland Security (DHS) will extend this policy until Dec. 31, 2021.
This extension will continue to apply the guidance previously issued for employees hired on or after April 1, 2021, and work exclusively in a remote setting due to COVID-19-related precautions. Those employees are temporarily exempt from the physical inspection requirements associated with the Employment Eligibility Verification (Form I-9) until they undertake non-remote employment on a regular, consistent, or predictable basis, or the extension of the flexibilities related to such requirements is terminated, whichever is earlier.
On March 20, 2020, due to precautions implemented by employers and employees associated with COVID-19, DHS announced that it would exercise prosecutorial discretion to defer the physical presence requirements associated with the Employment Eligibility Verification (Form I-9) under section 274A of the Immigration and Nationality Act. This policy only applies to employers and workplaces that are operating remotely. If there are employees physically present at a work location, no exceptions are being implemented at this time for in-person verification of identity and employment eligibility documentation for Form I-9, Employment Eligibility Verification.
Updates to these policies will be provided via the DHS and ICE websites
USCIS Releases Podcast on Tips for E-Verify and I-9 News
USCIS has released an Equifax Workforce Wise podcast interview with Tammy Meckley, Associate Director, U.S. Citizenship and Immigration Services, Immigration Records and Identity Services Directorate with the Department of Homeland Security. The two-part interactive session includes an overview of E-Verify and a series of questions pertaining to current and future plans for the program. Ms. Meckley explains key aspects of E-Verify and why so many employers are confidently using E-Verify to confirm the employment eligibility of their employees.
Both parts of this interview can be accessed here.
USCIS 60-Day Notice and Request for Comments on Proposed New Form I-129 for Separate Nonimmigrant Classifications
USCIS has announced that Form I-129, Petition for Nonimmigrant Worker will be separated into several individual forms and has issued a 60-day Notice and Request for Comments on the proposed forms. These new forms will combine information from the main Form I-129 with information from the current Supplements to create unique forms tailored to specific nonimmigrant classifications. This is intended to consolidate and simplify the information collection requirements for respondents. The proposed forms are as follows:
Form I-129H1 will collect information for the H-1B and H-1B1 programs.
Form I-129E&TN will collect information for the E and the TN programs.
Form I-129L will collect information for the L nonimmigrant program.
Form I-129MISC will collect information for H-3, P, Q, or R classifications.
Form I-129O will collect information for the O nonimmigrant program.
CBP announced continuation of temporary travel restrictions between Canada and the U.S.
Customs and Border Patrol (CBP) and the Department of Homeland Security (DHS) have announced that land border restrictions on non-essential travel between Canada and the U.S. will remain in place through September 21, 2021.
The following are considered “essential travel”:
Citizens and lawful permanent residents returning to the United States.
Individuals traveling for medical purposes (e.g., to receive medical treatment in the United States).
Individuals traveling to attend educational institutions.
Individuals traveling to work in the United States (e.g., individuals working in the agriculture industry who must travel between the United States and Canada or Mexico in furtherance of such work).
Individuals traveling for emergency response and public health purposes (e.g., government officials or emergency responders entering the United States to support federal, state, local, tribal, or territorial government efforts to respond to COVID-19 or other emergencies).
Individuals engaged in lawful cross-border trade (e.g., truck drivers supporting the movement of cargo between the United States and Canada and Mexico).
Individuals engaged in official government travel or diplomatic travel.
Individuals engaged in military-related travel or operations.
Travel for tourism purposes (sightseeing, recreation, gambling, or attending cultural events) is not considered “essential” and is restricted at this time.
Visitors (including applicants, interpreters, and attorneys) will not be permitted to enter USCIS facilities if they have traveled by certain means in the last 10 days
The USCIS website has been updated to indicate that you may not enter a USCIS facility if you “[h]ave returned from domestic air, international air or cruise ship travel in the past 10 days (unless you are fully vaccinated).” This would apply to applicants and their attorneys and interpreters as well. Specifically, visitors will not be allowed to enter the USCIS office if they:
Have COVID-19 or any symptoms of COVID-19 according to the CDC, including, but not limited to, a recently developed cough, fever, difficulty breathing, new loss of smell or taste, fatigue, muscle aches, headache, congestion, sore throat, or vomiting;
Have been in close contact (within 6 feet for a total of 15 minutes or more) with anyone known to have COVID-19 in the past 14 days (unless you are fully vaccinated or if you are a health care worker and consistently wear an N95 respirator and proper personal protective equipment (PPE) or equivalent when in contact with COVID-19 positive individuals);
Have returned from domestic air, international air, or cruise ship travel in the past 10 days (unless you are fully vaccinated);
Have been instructed by a health care provider, public health authority, or government entity to self-isolate or self-quarantine in the past 14 days; or
Refuse to wear a face covering or mask in accordance with USCIS policy.
CDC Updates Requirements for Immigrant Medical Examinations to Add COVID Vaccination Requirement
According to a recent update from the Center for Disease Control and Prevention (CDC) regarding the criteria for required vaccinations, the COVID-19 vaccine will now be required for all immigration applicants (with in order to complete the required medical exam. The CDC has new vaccination criteria to help decide which vaccines should be required as part of the immigration process. CDC will use these criteria at regular periods, as needed, for vaccines recommended by the Advisory Committee on Immunization Practices (ACIP) for the general U.S. public. This will determine which vaccines will be required for U.S. immigration.
The criteria are:
The vaccine must be age-appropriate for the immigrant applicant
The vaccine must protect against a disease that has the potential to cause an outbreak.
The vaccine must protect against a disease that has been eliminated or is in the process of being eliminated in the United States.
The only exceptions to this are if a vaccine is not medically advised for an immigrant applicant or if the immigrant applicant can show proof of prior vaccination.
DHS Seeks Public Comment on Public Charge Rulemaking
The U.S. Department of Homeland Security (DHS) has issued an Advanced Notice of Proposed Rulemaking (ANPRM) for the purpose of seeking public comment and gathering data related to defining the term “public charge” for admissibility purposes. Under the Immigration and Nationality Act, a noncitizen who is likely to become a public charge is generally inadmissible to the United States and ineligible to become a lawful permanent resident. The public comment period is open for 60 days, beginning Monday, Aug. 23, 2021, and closing Oct. 22, 2021.
DHS is requesting public comment on a number of factors, including how DHS should define the term “public charge,” which public benefits DHS should consider relevant to the public charge inadmissibility determination, and how DHS should assess the mandatory statutory factors when determining whether a noncitizen is likely to become a public charge, among other matters.
The ANPRM does not change how USCIS makes public charge inadmissibility determinations. Until DHS completes the rulemaking process and implements new regulations, USCIS will continue to apply the public charge inadmissibility statute consistent with the 1999 Interim Field Guidance. Under this guidance, USCIS does not consider a person’s receipt of Medicaid (except for Medicaid for long-term institutionalization), public housing, or Supplemental Nutrition Assistance Program benefits and other nutrition assistance as part of the public charge inadmissibility determination. Vaccinations or medical treatment for COVID-19 also are not considered for public charge purposes.
The virtual public listening sessions (which will be opportunities for the public to speak directly to DHS on the questions raised in this ANPRM) will be held on—
September 14, 2021 at 2:00 pm ET: Listening Session for the General Public.
October 5, 2021 at 2:00 pm ET: State, Territorial, Local, and Tribal Benefits Granting Agencies and Nonprofit Organizations Only.
More information about registering for these public listening session and for submitting comments for DHS consideration can be found under the “Public Participation” section of the ANPRM, which can be found here.
USCIS Extending Validity Period of Form I-693, Report of Medical Exam from 2 to 4 years
Due to delays in processing caused by the COVID-19 pandemic, USCIS is temporarily extending the validity period for Form I-693, Report of Medical Examination and Vaccination Record, from two years to now four years due to COVID-19-related delays in processing.
USCIS may consider a completed Form I-693 as valid if:
The civil surgeon’s signature is dated no more than 60 days before the applicant filed Form I-485, Application to Register Permanent Residence or Adjust Status;
No more than four years have passed since the date of the civil surgeon’s signature; and
A decision on the applicant’s Form I-485 is issued on or before Sept. 30, 2021.
USCIS is making this temporary change because COVID-19 has caused processing delays and affected applicants’ ability to complete the required immigration medical examination. Previously, USCIS considered a completed Form I-693 to retain its validity for two years after the date the civil surgeon signed, as long as the date of the civil surgeon’s signature was no more than 60 days before the applicant filed for adjustment of status.
Resources for the crisis in Afghanistan
On August 29th, 2021, President Biden directed the Department of Homeland Security to serve as the lead agency coordinating ongoing efforts across the federal government to resettle vulnerable Afghans, including those who worked on behalf of the United States. DHS will lead the interagency Unified Coordination Group to establish and provide a broad range of services throughout the resettlement process, from initial immigration processing, COVID-19 testing, and isolation of COVID-positive individuals for anticipated quarantine, to resettlement support for individuals who are neither U.S. citizens nor lawful permanent residents. The resettlement support will include initial processing at pre-designated U.S. military bases prior to being resettled into communities.
While this situation continues to develop, the American Immigration Lawyers Association (AILA) members have assembled the following resources to address the humanitarian crisis in Afghanistan:
Humanitarian Parole
Due to the dangerous conditions in Afghanistan, and the incredibly limited State Department resources available, other possible options should be pursued, including Humanitarian Parole. Humanitarian Parole can be requested by someone outside of the United States who is seeking temporary entrance to the U.S. for urgent humanitarian reasons. USCIS has provided information regarding Humanitarian Parole here.
Requesting Humanitarian Parole at a U.S. Embassy
For Afghan citizens who are able to reach a third country, an application for Humanitarian Parole can be made at the Embassy.
Afghan citizens are eligible for e-visas to Tajikistan, Uzbekistan, and Kyrgyzstan, and they may enter the following countries without a visa:
1. Antigua and Barbuda (e-Visa)
2. Benin (e-Visa)
3. Cape Verde (Visa on arrival - 3 months)
4. Comoros (Visa on arrival - 45 days)
5. Dominica (Visa free entry - 21 days)
6. Ethiopia (e-Visa - 90 days)
7. Maldives (Visa on arrival - 30 days)
8. Qatar (e-Visa)
Requesting Humanitarian Parole with USCIS
In some cases, urgent humanitarian reasons can form the basis of a request to be paroled into the U.S. For IV applicants based on sponsorship by a USC or LPR family member a request can be made to the Washington DC Humanitarian Parole office or a local USCIS Field Office. The limitation for these cases is that an applicant must find a way out of Afghanistan and arrange for transportation to the U.S.
Requesting Humanitarian Parole with CBP
Urgent humanitarian parole can be granted by CBP. The request must be made to a specific CBP Port of Entry. The limitation with this option again lies with the ability to exit Afghanistan, or if already out of Afghanistan, arranging for transportation to the USA. Considering Canada’s humanitarian efforts, it may be possible to gain entry to Canada, and then pursue entry to the USA.
Other Resources:
Congressional offices have been very active with assisting with humanitarian situations such as this. You may want to consider reaching out to your federal Senator or Representative for assistance. For example, certain Members of Congress have set up special email addresses:
Representative Andy Kim (D-NJ) RepKimEvac@mail.house.gov or (202) 225-4765
Senator Tom Cotton (501) 223-9081 or evac@cotton.senate.gov
For questions on how to receive Chief of Mission (COM) approval for the Afghan Special Immigrant Visa Program: AfghanSIVapplication@state.gov
For information on the P2 program for Afghan nationals, please visit:
1. https://www.state.gov/u-s-refugee-admissions-program-priority-2-designation-for-afghan-nationals/
2. The Refugee Processing Center via: https://www.wrapsnet.org
Pathways for migration for Afghans seeking entry to the United States, United Kingdom, Canada, or EU: This non-exhaustive document has been compiled by a non-AILA source, so AILA cannot vouch for the information contained within; however, it may be informative:
IRAP: https://support.iraplegalinfo.org/hc/en-us/sections/360008472712-U-S-Special-Immigrant-Visas-SIVs-
o https://refugeerights.org/news-resources/legal-resources-for-afghans
Lutheran Immigration and Refugee Services: https://www.lirs.org/emergency-evacuation-afghan-allies-action-alert