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 December 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 December, 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 December.

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 December filing chart for India and China did not change the November Visa Bulletin but improved in the EB-2 category by a few 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).

USCIS Conducts Third Random Selection from Previously Submitted FY 2022 H-1B Cap Registrations

On November 19, 2021, USCIS announced that it had conducted a third random selection of previously submitted FY2022 H-1B Cap registrations in order to meet the numerical allocations for this fiscal year.  The filing period for the selected registrations began on November 22, 2021 and will close on February 23, 2022.   Individuals with selected registrations will have their myUSCIS accounts updated to include a selection notice, which includes details about when and where to file.

The initial selection of registrations for this fiscal year took place in March 2021, and those selected were able to file between April 1, 2021 through June 30, 2021.  The second selection took place in July 2021, and those selected were able to file through November 3, 2021. 

An H-1B cap-subject petition must be properly filed at the correct service center and within the filing period indicated on the relevant registration selection notice. Online filing is not available for H-1B petitions. Petitioners filing H-1B petitions must do so by paper and must include a printed copy of the applicable registration selection notice with the FY 2022 H-1B cap-subject petition.

If you or your employee was selected in the lottery and you require assistance preparing the H-1B petition, please contact an at Iandoli, Desai & Cronin (info@iandoli.com).

SEVP Issues Reminder for School Officials to Assist F-1 Students with Filing Form I-765

On November 15, 2021, the Student and Exchange Visitor Program (SEVP) and U.S. Citizenship and Immigration Services (USCIS) issued a reminder that designated school officials (DSOs) are to ensure that F-1 students file their Forms I-765, "Application for Employment Authorization," for optional practical training (OPT) within the 30-day period after the DSO:

• Authorizes the student for OPT in the Student and Exchange Visitor Information System (SEVIS), and

• Provides the student with an updated Form I-20, "Certificate of Eligibility for Nonimmigrant Student Status," endorsed for OPT.

SEVP and USCIS also note that DSOs must complete these two steps above before the student files the Form I- 765. DSOs should ensure that students who apply for OPT are aware of these requirements and file their Forms I-765 along with all required documentation within the specified 30-day period. Additional information and resources to assist students with filing for OPT are available on the Optional Practical Training for F-1 Students page at USCIS.gov.

Employment Authorization for F-1 Nonimmigrant Students Experiencing Severe Economic Hardship as a Direct Result of Emergent Circumstances in Hong Kong

On November 24th, 2021, the Department of Homeland Security released a Federal Register Notice suspending certain requirements for F-1 students who are Hong Kong residents and are experiencing severe economic hardship as a result of current circumstances in Hong Kong.  Specifically, the notice provides Special Student Relief (SSR) and suspends on-campus and off-campus employment regulations for certain Hong Kong residents. 

This notice announces that the Secretary of Homeland Security (Secretary) is suspending certain regulatory requirements for F-1 nonimmigrant students who are Hong Kong residents (regardless of country of birth) and who are experiencing severe economic hardship as a direct result of the emergent circumstances in Hong Kong. The Secretary is taking action to provide relief to Hong Kong residents who are lawful F-1 nonimmigrant students so the students may request employment authorization, work an increased number of hours while school is in session, and reduce their course load while continuing to maintain F-1 nonimmigrant student status. DHS will deem an F-1 nonimmigrant student who receives employment authorization by means of this notice to be engaged in a “full course of study” for the duration of the employment authorization, if the nonimmigrant student satisfies the minimum course load requirement described in this notice.

The notice defines a Hong Kong resident as an individual of any nationality, or without nationality, who has met the requirements for, and been granted, a Hong Kong Special Administrative Region Passport, a British National Overseas Passport, a British Overseas Citizen Passport, a Hong Kong Permanent Identity card, or a Hong Kong Special Administrative Region (HKSAR) Document of Identity for Visa Purposes.

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.

U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual to provide clarifications regarding certain naturalization applications

On November 12th, 2021, USCIS issued policy guidance to clarify the adjudication of naturalization applications filed by current or former members of the U.S. military. 

Current or former members of the U.S. armed forces who serve honorably for any period of time during specifically designated periods of hostilities may be eligible to naturalize.  In accordance with the statutory provisions (sections 328 and 329 of the Immigration and Nationality Act (INA)), some former members of the U.S. armed forces who served during designated periods of hostility and were honorably discharged but are not LPRs may be eligible to naturalize even if currently residing outside of the United States.

Under INA 329, a member of the U.S. armed forces who serve honorably for any period of time during specifically designated periods of hostilities may be eligible to naturalize.   USCIS’s newly issued guidance updates USCIS’s interpretation of the “qualified period of service” requirement under INA 329, and specifies that the qualifying period of service does not need to be the most recent period of service.  An applicant who was discharged from the armed forces under honorable conditions after completing a qualified period of service may be eligible to naturalize even if the applicant received a different type of discharge for a different, separate period of service. 

Additionally, former service members who live outside the United States may concurrently file their Application for Naturalization (N-400) along with an Application for Travel Document (I-131) without a fee to request an advance parole document to attend their naturalization interview in the U.S.   USCIS may interview a former service member at a land port of entry even if the applicant has not demonstrated preliminary eligibility for naturalization, or requested a visa or parole.  If the application for naturalization is approved after an interview at a land port of entry, the applicant may be administered the Oath of Allegence at the port of entry unless a court has exclusive authority to administer the oath. 

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.