DOS Reopens Public Charge Interim Final Rule Comment Period
On November 17, 2021, the U.S. State Department posted a notice soliciting additional information from the public about the interim final rule (“IFR”) regarding visa ineligibility on public charge grounds originally published on October 11, 2019. The State Department has requested additional information by reopening the public comment period for an additional 60 days (ending on January 18, 2022). The public may comment on the IFR through the following:
To provide comments go to https://www.regulations.gov, enter Docket DOS-2021-0034 and RIN 1400-AE87. Alternatively, you may submit comments by any of the following methods:
Email: You may submit comments via email to VisaRegs@state.gov. You must include the RIN in the subject line of your message.
Mail paper submissions: You may submit comments via physical mail to Regulatory Coordinator, Visa Services, Bureau of Consular Affairs, Department of State, 600 19th St. NW, Washington, DC 20006. You must include the RIN in the Attention Line in the address.
The State Department invites public comment on this issue to aid in the Department’s review of (1) if the IFR should be rescinded or revised, and (2) what final rule should be adopted, if any. Reopening the comment period gives interested persons an opportunity to comment on these issues.
USCIS issues Policy Memo regarding eligibility for modification of oath of allegiance for Naturalizations
On November 19, 2021, USCIS announced an update to policy guidance in the USCIS Policy Manual to clarify guidance related to requests for modifications to the Oath of Allegiance.
During the naturalization interview, an applicant signs the naturalization application to acknowledge the applicant’s willingness and ability to take the Oath of Allegiance. An applicant may be eligible for a modification of the oath based on religious, moral, or ethical beliefs. Qualification for the modification is not dependent upon membership in a particular religious group, nor does membership in a specific religious group provide an automatic modification to the oath. However, the applicant must have a sincere and meaningful belief that has a place in the applicant’s life that is equivalent to that of a religious belief. An officer must not question the validity of what an applicant believes or the existence or truth of the concepts in which the applicant believes.
This policy guidance is intended to clarify the following:
Officers should not conclude that an applicant is ineligible for the oath modification if the applicant fails to provide oral testimony or other evidence at the interview.
If a naturalization applicant expresses a desire for a modification of the Oath of Allegiance during the naturalization interview but does not provide any oral testimony or other evidence to qualify for such modification, the officer should issue a Request for Evidence to provide the applicant an opportunity to provide testimony, a statement, or submit evidence to establish eligibility for such modification.
This update is in Volume 12 of the Policy Manual and is effective immediately. The guidance contained in the Policy Manual is controlling and supersedes any prior guidance on the topic.
DHS announces Fee Exemptions, Streamlined Processing for Afghan Nationals as they resettle in the US
On November 8th, 2021, the Department of Homeland Security (DHS) announced that it will exempt filing fees and streamline application processing for Afghan nationals who were paroled into the United States for humanitarian reasons on or after July 30, 2021. These actions will help facilitate their resettlement in the U.S. by streamlining the processing of requests for work authorization, green cards, and associated services. DHS is the lead federal agency coordinating Operation Allies Welcome, the ongoing all-of-government effort to resettle vulnerable Afghans, including those who worked on behalf of the United States.
“By providing these evacuees with access to streamlined processing and fee exemptions, we will open doors of opportunity for our Afghan allies and help them begin to rebuild their lives in communities across our country more quickly,” said Secretary of Homeland Security Alejandro N. Mayorkas. “These actions demonstrate our ongoing commitment to Afghan nationals who provided valuable assistance to the United States over the past two decades as well as other Afghans at risk.”
Approximately 70,000 Afghans have arrived in the United States as part of Operation Allies Welcome. Following the biggest airlift in U.S. history, DHS exercised its discretion to parole many Afghan nationals, on a case-by-case basis, into the United States for urgent humanitarian reasons. Parolees may apply for work authorization using Form I-765, Application for Employment Authorization, on the basis of their parole. Afghan nationals will also have the opportunity to apply for immigration benefits such as Afghan special immigrant status, lawful permanent residence, and asylum.
Additional information for Afghan parolees can be found on USCIS's website.
Afghan nationals who were paroled into the United States on or after July 30, 2021 are eligible for the following fee exemptions and streamlined processing:
Fee Exemptions
An initial Form I-765, Application for Employment Authorization;
Form I-485, Application to Register Permanent Residence or Adjust Status (if filing Form I-485 as an Afghan special immigrant) or an associated Form I-601, Application for Waiver of Grounds of Inadmissibility;
Associated biometric services.
Streamlined Processing
An initial Form I-765 for those applying for work authorization on the basis of parole (eligibility category (c)(11));
Form I-485, for applicants seeking to adjust status as an Afghan special immigrant, and any associated Form I-601; or
Form I-589, filed by certain Afghan parolees as described in Section 2502(a) of the Extending Government Funding and Delivering Emergency Assistance Act.
All Temporary Protected Status (TPS) Applicants May Now File Forms I-821 and I-765 Online
USCIS has announced that as of November 29th, 2021, all applicants eligible to file for TPS under one of the current designations may file Form I-821, Application for Temporary Protected Status, and Form I-765, Application for Employment Authorization, online. The following countries are currently designated for TPS:
Burma (Myanmar)
El Salvador
Haiti
Honduras
Nepal
Nicaragua
Somalia
South Sudan
Sudan
Syria
Venezuela
Yemen
First-time TPS applicants and TPS beneficiaries who are re-registering may apply for TPS online. Applicants can request an Employment Authorization Document (EAD) by submitting a completed Form I-765 with their Form I-821, or may submit their Form I-765 separately later. However, filing both forms together may help applicants receive their EAD more promptly.
Up-to-date information on TPS may be found on USCIS’s TPS informational page.
White House Announces Suspension of Entry as Immigrants and Nonimmigrants of Certain Additional Persons At Risk of Transmitting New Covid-19 Variant (Omicron)
On November 26, 2021, the White House released a proclamation describing further travel restrictions related to the most recent Covid-19 variant discovered in South Africa.
This proclamation suspends and restricts the entry into the United States of immigrants and nonimmigrants, and of other noncitizens of the United States (“noncitizens”) who were physically present within the Republic of Botswana, the Kingdom of Eswatini, the Kingdom of Lesotho, the Republic of Malawi, the Republic of Mozambique, the Republic of Namibia, the Republic of South Africa, and the Republic of Zimbabwe during the 14-day period preceding their entry or attempted entry into the United States.
Citizens and lawful permanent residents of the United States, certain family members, and other individuals who meet specified exceptions, who have been in one of the countries listed above in the past 14 days will be allowed to enter the United States. The CDC page for this proclamation can be found here.
This proclamation went into effect on November 29th, 2021.
USCIS Issues Guidance on Employment Authorization Available to Certain Nonimmigrant Dependent Spouses (H-4s, L-2s, and E-2s)
Based on the recent settlement of the class action lawsuit Shergill v. Mayorkas, USCIS issued new policy guidance on November 12th, to be effective immediately, that provides automatic extensions of employment authorization for certain H-4, E, and L nonimmigrant dependent spouses.
H-4 spouses may qualify for automatic extension of their existing employment authorization and accompanying EAD if they have properly filed an application to renew their H-4-based EAD before it expires, and they have an unexpired Form I-94 showing valid status as an H-4 nonimmigrant. If the applicant qualifies for automatic extension of their current employment authorization and EAD, the automatic extension will continue until whichever comes first:
The end date on Form I-94 showing valid H-4 status;
The approval or denial of the EAD renewal application; or
180 days from the “Card Expires” date on the face of the existing EAD.
When applicable, acceptable evidence of your automatic extension of employment authorization that may be presented to employers for Form I-9 purposes includes the following combination of documents:
Form I-94 indicating the unexpired H-4 nonimmigrant status;
Form I-797C indicating a timely-filed renewal Form I-765 was filed under (c)(26); and
The expired EAD issued under the same category, Category C26.
E and L dependent spouses will have employment authorization incident to their status. USCIS will be making changes to the I-94 for these visa holders to differentiate dependent spouses from dependent children so that the I-94 can be used to indicate employment authorization. Once that change is made, the I-94 will be acceptable as evidence of employment authorization for I-9 purposes. Until then, E and L spouses will need to use EAD cards as evidence of their employment authorization.
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 November 2021, USCIS has indicated that for Employment-Based immigration, the “Dates for Filing” 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]. USCIS has also indicated that it will not accept any new employment-based fifth preference adjustment of status applications based on the Regional Center Program until that program is reauthorized.
In November, 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 November.
The EB-2 and EB-3 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 November filing chart for India and China retrogressed from the October visa bulletin but improved in the EB-2 category by approximately five months for both countries. The complete Visa Bulletin, including priority dates for family-based immigrant applications, can be found on the Department of State website.
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).
Office of Refugee Resettlement Fact Sheet for Cubans/Haitians Granted Parole
The Office of Refugee Resettlement (ORR) released a fact sheet detailing benefits and services available to Cuban and Haitian nationals who were granted parole into the United States, who are in removal proceedings, or who have a pending asylum application. Cuban/Haitian nationals may be eligible for cash and medical assistance, employment services, English language classes and other federal benefits such as Supplemental Security Income (SSI), food assistance, and Medicaid health insurance. The U.S. Department of Health and Human Services has published a list of documents qualifying someone as a Cuban/Haitian Entrant for the purpose of receiving benefits/services.
The ORR provides funding to state governments, resettlement agencies, and other non-profit organizations for eligible individuals. Please locate your state contact to sign up for ORR benefits/services or inquire on your eligibility for additional services.
USCIS Implements Employment Authorization for Individuals Covered by Deferred Enforced Departure for Hong Kong Residents
On October 20, 2021, U.S. Citizenship and Immigration Services (USCIS) issued a Federal Register notice with information on how to apply for employment authorization for eligible Hong Kong residents covered under the President Biden’s memorandum directing Deferred Enforced Departure (DED) through February 5, 2023.
DED for Hong Kong residents applies only to residents of Hong Kong who were a) present in the United States as of August 5, 2021; b) who have continuously resided here since that date; and c) who meet other eligibility criteria described in the president’s memorandum. For purposes of this DED policy, Hong Kong residents are individuals of any nationality, or without nationality, who have met the requirements and been issued a Hong Kong Special Administrative Region (HKSAR) passport, a British National Overseas passport, a British Overseas Citizen passport, a Hong Kong Permanent Identity Card, or an HKSAR Document of Identity for Visa Purposes.
There is no application for DED. Eligible Hong Kong residents may apply for an Employment Authorization Document by submitting a completed Form I-765, Application for Employment Authorization. Eligible Hong Kong residents covered by the president’s DED memorandum may also receive travel authorization. Individuals must file Form I-131, Application for Travel Document, for advance parole if they wish to travel based on DED.