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
DOS Provides Update on U.S. Embassy Kabul – All Embassy Operations Suspended
According to the Department of State (DOS) announcement of August 31, 2021, the U.S. Embassy in Kabul has suspended all operations, and the U.S. government has withdrawn all personnel from Kabul. The Embassy will continue to provide information via the Smart Traveler Enrollment Program (STEP). Nonimmigrant visa appointments remain unavailable and all immigrant visa appointments, including Special Immigrant Visas (SIVs), at the Embassy have been cancelled. Consular services remain available outside Afghanistan and assistance is available for U.S. citizens and their families in Afghanistan from Doha, Qatar.
DOS’s first priority is U.S. citizens and lawful permanent residents (LPRs) of the United States, along with eligible family members. DOS is also prioritizing several other categories of people, including locally employed DOS staff; personnel from partner nations and international organizations with whom DOS has agreements; Afghan Special Immigrant Visa holders and applicants; certain immigrant visa applicants; Afghans who would be eligible for P1/P2 refugee programs; and certain Afghans at risk.
Immigrant visa applicants, including Special Immigrant Visa applicants, should continue monitoring official U.S. Government websites, including travel.state.gov, for updated information. Immigrant visa applicants outside of Afghanistan may request their case be transferred to the nearest U.S. Embassy or Consulate to complete processing. To request a case transfer, please submit a request to the National Visa Center via the form found here.
DOS is accelerating efforts to process and relocate those Afghans who have worked with the U.S. government or on the U.S.’s behalf over the years. Afghan nationals who are eligible for the SIV program who have not yet done so, are encouraged to submit one complete application package to the National Visa Center (AfghanSIVapplication@state.gov) to facilitate processing in an expeditious manner.
Please refer to Special Immigrant Visas for Afghans - Who Were Employed by/on Behalf of the U.S. Government (state.gov) for more information regarding the SIV process and who to contact with questions.
General inquiries about the Special Immigrant Visa (SIV) Program can be directed to +1-606-526-7594 or AfghanSIVApplication@state.gov. This contact information is for general SIV inquiries only. DOS cannot provide any evacuation or emergency assistance at this phone number or email. Individuals seeking to leave Afghanistan should refer to the Embassy Kabul website for the most up to date information.
Heightened Scrutiny of Individuals of Iranian Descent
The American Immigration Lawyers Association (AILA) has issued a Practice Pointer regarding recent trends and reports of Iranian individuals receiving increased scrutiny and denials or revocations from the Department of State (DOS) and Department of Homeland Security while attempting to enter or re-enter the United States.
One common reason for denials of applications or refusal of admission is prior military service, as Iranian men must participate in compulsory military service and are randomly assigned to a branch of the military. One branch of the Iranian military, the Islamic Revolutionary Guard Corp (IRGC) was designated as a terrorist organization by the U.S. government in 2019, and as a result of this, some Iranians can face inadmissibility due to being involved in terrorist activities. Exceptions and waivers to this ground of inadmissibility are increasingly not being considered according to AILA’s reports, and inadmissibility on this ground has been extended to those who have served in other branches of the Iranian military, or to family members such as spouses.
Iranian applicants for nonimmigrant visas have also been refused entry, or had their visa applications denied or revoked for the following reasons:
Seeking to enter the U.S. to attend an institute of higher education to prepare for a career in the energy sector of Iran or in nuclear science, nuclear engineering, or a related field in Iran. (Section 501 of the Iran Threat Reduction and Syria Human Rights Act of 2012)
Participating in previous schooling, training, employment, or having other connections with an entity “designated as or associated with a foreign terrorist organization or sanctioned specially designated national”
Receiving a “determination that an export license should be issued for access to controlled technology”.
Social media history “that could be used as a basis to find that the foreign national is inadmissible (i.e., on national security grounds)”
AILA’s report warns that Iranian nationals already in the U.S. should avoid travelling internationally, even with a valid visa. If travel outside the U.S. is necessary, AILA recommends that Iranian nationals check their visa case status in the Consular Electronic Application Center (CEAC) to ensure they are aware of any changes.
AILA also reports that U.S. citizens and lawful permanent residents have faced this increased scrutiny as well, such as being directed through secondary inspection for questioning when returning to the U.S. Other reports include revocation of Global Entry, or having electronic devices searched and confiscated. If necessary, travelers can submit inquiries about difficulties they have experienced to DHS’s Traveler Redress Inquiry Program (TRIP) or submit a report or complaint to the DHS Office of Civil Rights and Civil Liberties (CRCL).
IDC News
Iandoli, Desai and Cronin, P.C. is pleased to announce the opening of our second office location in the Navy Yard. We will continue to use our original office at 38 Third Avenue as our main address.
We are also pleased to announce the addition of a new paralegal at our firm: Emma Qualy-Pearson, who comes to us with significant experience in immigration.
August 2021 Visa Bulletin
Each month, the U.S. Department of State (DOS) publishes the Visa Bulletin, listing all "preference" categories and states whether 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 August 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 August, 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 April.
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.
The Visa Bulletin for September 2021 has not yet been released.
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).
Consent Order Issued in Class Action Lawsuit Challenging Certain OPT Delays
On July 23, 2021, 7/23/21, the District Court for the Southern District of Ohio Eastern Division issued a consent order in Li v. USCIS, a class action lawsuit challenging the delayed adjudication of applications for Optional Practical Training (OPT). The Consent Order outlines the terms of agreement between the parties, specifically:
For applications for OPT and STEM extensions filed between October 1, 2020, through October 31, 2021, USCIS commits to processing within 120 days. Processing means that the application will be approved, denied or an RFE issued within 120 days.
The interim relief announced on February 26, 2021, continues for all cases filed between October 1, 2020, and October 31, 2021. This includes:
A full 12 months of OPT irrespective of the requirement OPT be completed within 14 months of graduation.
OPT will be granted for the full period recommended by the DSO, irrespective of the time of adjudication
If an EAD has been issued for less than these time periods, USCIS will issue a corrected EAD upon request.
Rejected applications which were originally submitted on time can be resubmitted and will be processed as if received on the original date (the full period of OPT will be granted, but the original I-20 will be accepted without the requirement of a new I-20.
Requests for Evidence will be issued instead of a denial for missing or deficient signatures.
OPT applications can be submitted up to 120 days (instead of 90) before completion of the program until October 31, 2021.
USCIS will provide monthly reports until all cases filed before October 31, 2021, have been adjudicated, to permit the Court and Plaintiff’s counsel to monitor compliance. The Court retains jurisdiction during this time.
The parties agree to negotiate any issues of noncompliance in good faith. If the problems cannot be resolved, the parties may request Court intervention.
USCIS will pay Plaintiff’s counsel $45,000.00
The Consent Order does not constitute an admission of wrongdoing.
Proposal to Eliminate Duration of Status Withdrawn by the Department of Homeland Security
On July 6, 2021, DHS officially withdrew its proposed rule to eliminate duration of status (D/S) for F students and their dependents, J exchange visitors and their dependents, and I media representatives. DHS received over 32,000 comments in the 30-day public comment period following the proposed rule and noted that “more than 99 percent of commenters opposed the proposed rule, with many commenters specifically requesting that DHS withdraw the NPRM.”
Applicants for Change of Status (COS) to F-1 Student No Longer Need to Submit Subsequent Applications to “Bridge the Gap”
On July 20, 2021, USCIS announced that it would no longer require F-1 change of status (COS) applicants to submit subsequent applications for extension or change of nonimmigrant status while the COS application to F-1 is pending with USCIS, provided that the nonimmigrants status is unexpired at the time of filing the initial COS application and the applicant is otherwise eligible for COS. To prevent a gap in status, USCIS will grant the COS to F-1effective the day of the COS approval. If an application is approved more than 30 days before the student’s program start date, the student must ensure that they do not violate their nonimmigrant status during that time.
USCIS is in the process of revising Form I-539 to reflect these changes. However, this guidance is effective immediately.
U.S. Department of Labor (DOL) Administrative Law Judge (ALJ) Reviews Labor Condition Application (LCA) Wage Eligibility When Bona Fide Termination is Not Effectuated
A DOL ALJ discussed when an employer’s LCA obligation to pay its H-1B worker ends when the employer terminates the worker, the employer fails to effectuate the required “bona fide termination”, and the worker finds new employment. The ALJ concluded in Administrator, Wage and Hour Division v. Bitsofcode Software Systems Inc., that the employer’s wage liability continues until the employer “expressly” notifies the H-1B worker of the termination and until the new employer’s H-1B petition is approved (not just filed). Additionally, the ALJ concluded that an employer is liable for wages even if the H-1B worker is outside the US unless the employer can provide evidence that the worker’s international trip was voluntary or for the worker’s convenience.
H-1B Applicants File Motion for Preliminary Injunction in Lawsuit Challenging FY 2022 H-1B Lottery Cap Registration Rules
On July 27, 2021, several hundred H-1B visa applicants filed a motion for preliminary injunction in the U.S. District Court for the District of Columbia alleging that the cap registration rules and regulations that took effect on April 1, 2019 are unlawful on the grounds that DHS was rulemaking outside of its authority when it released the cap registration rules, because the rules prioritize H-1B lottery registrations and ignore the INA’s mandate to allocate H-1B visas by “alien” pursuant to INA §214(g)(1), (3), and (7). The plaintiffs also argue that DHS’ application of cap registration rules is “arbitrary, capricious, an abuse of discretion, and not in accordance with law, because the defendants have failed to examine and have ignored empirical evidence and data indicating that implementation of the FY2022 registration process would lead to fraud, abuse, and the likelihood of a second administration of the lottery.”
Iandoli, Desai, and Cronin P.C. will continue to monitor this lawsuit and provide updates when available.