Department of State Announcement Regarding F, M, and Academic J Visas

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The State Department authorized consular officers to expand the categories of F, M, and “academic J visa applicants” (students, professors, research scholars, short-term scholars, or specialists) whose applications can be adjudicated without an in-person interview in their consular district of residence, with certain exceptions, through the end of the year.

Consular officers may now waive the visa interview requirement for F, M, and academic J visa applicants who were previously issued any type of visa, and who have never been refused a visa unless such refusal was overcome or waived, and who have no apparent ineligibility or potential ineligibility; or first-time F, M, and academic J visa applicants who are citizens or nationals of a country that participates in the Visa Waiver Program (VWP), provided they have no apparent ineligibility or potential ineligibility. (Please note this applies only to non-U.S. citizens who are nationals of eligible countries. Details about country eligibility and necessary procedures will be available on the website of the relevant embassy or consulate. Applicants from non VWP countries whose prior visa was issued when they were less than 14 years of age, may need to submit biometric fingerprints, but can still be approved for an interview waiver.)

The Secretary of State previously found F, M, and academic J visa applicants eligible for National Interest Exceptions (NIEs) under Presidential Proclamations that suspend entry of individuals present in one of the 33 countries subject to COVID-19 travel restrictions (see https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/covid-19-travel-restrictions-and-exceptions.html).Students seeking to apply for a new F-1 or M-1 visa should check the status of visa services at the nearest embassy or consulate; those applicants who are found to be otherwise qualified for an F-1 or M-1 visa will automatically be considered for an NIE to travel. Students and academics traveling on J-1 visas must contact the nearest embassy or consulate prior to travel to receive an NIE.

For more information, please visit: https://travel.state.gov/content/travel/en/News/visas-news/important-announcement-on-F-M-and-academic-J-Visas.html

Resources to Provide Assistance to Afghan Nationals

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For individuals seeking further information about assisting Afghan nationals, the American Immigration Lawyers Association has created several short documents to provide overviews on some potential options such as, fee waivers; the Special Immigrant Visa Program; P-1, P-2, and P-3 refugee status; and humanitarian parole. Please find some of the information about each topic below.

For Fee Waivers:

If an applicant is unable to pay the filing fees or biometric services fees for a U.S. Citizenship and Immigration Services (USCIS) application or petition, the applicant may be able to request a fee waiver. This is typically available to applicants who receive need-based benefits, who are low income, or who have qualifying financial hardship. Certain Afghan Nationals may be eligible for fee waivers depending on the types of applications that they are filing. This includes applications for travel documents if the individual is applying for humanitarian parole, applications for lawful permanent residence based on Special Immigrant Status as an Afghan Interpreter, or Afghan nationals employed by or on behalf of the U.S. Government. Fee waivers may also be requested for any biometric services fees.

For information about fee waivers please visit:

For the Special Immigrant Visa Program:

To be eligible for the SIV program, Afghan nationals must show the following:

  • They were previously employed directly by the U.S. government in Afghanistan or employed with company that had a contract or subcontract with the U.S. government in Afghanistan

  • They worked for the qualifying employer for at least one year between October 7, 2001 and December 31, 2023

  • They face threats to safety because of their employment with the U.S. government

  • Or they are the surviving spouse or child of a former U.S. government employee who had submitted an application for Chief of Mission approval (see Afghan Allies Protection Act § 601(1)(C))

If approved, they are eligible for the same resettlement assistance and other benefits as refugees admitted under USRAP, as well as the Department of State’s Reception and Placement Program.

For information about the Special Immigrant Visa Program and the steps involved in applying, please visit:

For P-1, P-2, and P-3 Refugee Status:

On August 2, 2021, The Department of State announced a Priority 2 designation (P-2) for some Afghan refugees and their families, allowing them access to P-2 resettlement options. Eligibility for priority status will not guarantee a person for approval and entry into the United States. However, eligibility generally qualifies a person to have an interview with a DHS officer to determine whether the person meets the refugee definition, is not already firmly resettled, and is not excluded on other grounds. If individuals meet the criteria, they will undergo the same processing steps as other refugees, including extensive security vetting. Those who qualify for an SIV should not apply for P-1, P-2, or P-3 refugee status.

For more information about P-1, P-2, and P-3 Refugee Status, eligibility criteria, and how to pursue this pathway please visit:

  • https://2017-2021.state.gov/refugee-admissions/u-s-refugee-admissions-program-access-categories/index.html

 

For Humanitarian Parole: 

In general, humanitarian parole authorizes an individual to temporarily enter the United States when there is an urgent humanitarian reason or significant public benefit. Parole requests are discretionary and reviewed on a case-by-case basis, and anyone can request parole for himself or herself, or on behalf of another individual. Some potential reasons to request paroleare: emergency medical reasons, family reunification, participation in legal proceedings, or protection from targeted harm, for example. A grant of humanitarian parole allows for lawful presence in the United States for a specific period of time. Humanitarian parole does not confer immigration status and does not provide a path to permanent residency. Generally, USCIS will specify the duration of parole, if granted. Under the Operation Allies Welcome program, Afghans granted paroled will be permitted to stay for two years and will generally be eligible to apply for work authorization. The CDC issued a humanitarian parole exemption to the requirement for a Negative Pre-Departure COVID-19 Test Result for individuals relocating to the U.S. from Afghanistan. However, once in the United States, Afghans may be subject to medical screening and vaccination requirements.

For more information about Humanitarian Parole and how to apply, please visit:

USCIS Announces Non-U.S. Citizens Can Now Apply for Social Security Numbers on Forms I-765 or I-485

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Non-U.S. citizens can apply for a Social Security number (SSN) or replacement SSN card on the same forms used to apply for permission to work in the United States or for lawful permanent resident status. They no longer need to apply directly via the SSA.

For more information, please visit: https://www.ssa.gov/ssnvisa/ebe.html

Senate Parliamentarian Rules Immigration Language Cannot Be Included in Budget Reconciliation Bill

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In mid-September, Senate parliamentarian Elizabeth MacDonough ruled that immigration language that Democrats had hoped to include in a budget reconciliation bill would amount to a policy change and therefore would not be appropriate for inclusion in a reconciliation bill. This meant that certain efforts to provide a pathway to permanent residency and ultimately citizenship were blocked and that Democrats will need to continue to look for other vehicles to enact immigration reform.

For more information, please visit: https://www.npr.org/2021/09/19/1038776731/in-a-blow-to-democrats-senate-official-blocks-immigration-reform-in-budget-bill

COVID-19 Vaccination Requirement for Medical Exams Became Effective October 1, 2021

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Effective October 1, 2021, applicants subject to the immigration medical examination must be fully vaccinated against COVID-19 before the civil surgeon can complete the exam and sign Form I-693, Report of Medical Examination and Vaccination Record.

However, USCIS may grant blanket waivers if the COVID-19 vaccine is not age-appropriate; contraindicated due to a medical condition; not routinely available where the civil surgeon practices; or limited in supply and would cause significant delay for the applicant to receive the vaccination.Individuals can also apply for waivers based on religious beliefs or moral convictions.

For more information, please visit: https://www.uscis.gov/newsroom/alerts/covid-19-vaccination-required-for-immigration-medical-examinations

USCIS Extends Flexibility for Responding to Agency Requests through January 15, 2022

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USCIS announced that it will be extending the flexibilities it implemented on March 30, 2020, to assist applicants, petitioners and requestors who are responding to Requests for Evidence; Continuations to Request Evidence (N-14); Notices of Intent to Deny; Notices of Intent to Revoke; Notices of Intent to Rescind; Notices of Intent to Terminate regional centers; and Motions to Reopen an N-400 Pursuant to 8 CFR 335.5, Receipt of Derogatory Information After Grant.

In addition, USCIS will consider a Form I-290B, Notice of Appeal or Motion, or Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings (Under Section 336 of the INA), if the form was filed up to 60 calendar days from the issuance of a decision USCIS made; and USCIS made that decision anytime from March 1, 2020, through Jan. 15, 2022.

With respect to Notice/Request/Decision Issuance Date this flexibility applies to the above documents if the issuance date listed on the request, notice or decision is between March 1, 2020, and Jan. 15, 2022, inclusive.

With respect to due dates, USCIS will consider a response to the above requests and notices received within 60 calendar days after the response due date set in the request or notice before taking any action. Additionally, they will consider a Form N-336 or Form I-290B received up to 60 calendar days from the date of the decision before they take any action.

For more information, please visit: uscis.gov/coronavirus 

USCIS Policy Manual Eliminates Reference to Department of State “90 Day Rule” in Findings of Fraud and Material Misrepresentation

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Earlier this summer, USCIS made a technical update to the USCIS Policy Manual in which it eliminated all reference to the Department of State’s (DOS) “90 Day Rule.” The American Immigration Lawyers Association USCIS HQ (Benefits Policy) Liaison Committee has also created a useful Practice Pointer to help practitioners identify the differences between DOS policy and USCIS policy now and to explain some of the history of USCIS’ interpretation of this rule in the context of findings of fraud and material misrepresentation. For those with access to AILA documents, that practice pointer can be found at AILA Doc. No. 21092013.

For more information, please visit: https://www.uscis.gov/policy-manual/updates

September 2021 Visa Bulletin

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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

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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