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 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 May 2022, 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 May, 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 May.

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. In April, the final action dates for EB-3 preference categories for Chinese and Indian nationals was March 22, 2018, and January 15, 2012, respectively. The final action dates remain the same in May.

The EB-5 preference category has been reformed under the EB-5 Reform and Integrity Act. The May visa bulletin has added three new categories for EB-5 processing. All EB-5 preference categories are “current” except for EB-5 Unreserved (I5 and R5) for China.

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).

Immigration and Customs Enforcement (ICE) Publishes a Special Student Relief (SSR) Notice for Ukrainian and Sudanese Students

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Immigration and Customs Enforcement (ICE) published a Special Student Relief (SSR) notice for International Students from Ukraine and Sudan, effective April 19, 2022. Special Student Relief (SSR) is the suspension of certain regulatory requirements by the secretary of Department of Homeland Security for F‑1 student from parts of the world that are experiencing emergent circumstances. Regulatory requirements that may be suspended or altered for an F-1 student include duration of status, full course of study and off-campus employment eligibility. 

To be eligible, an F-1 student must:

  • Be a citizen of Ukraine or Sudan, regardless of country of birth (or be an individual having no nationality who last habitually resided in Ukraine or Sudan);

  • Have been lawfully present in the United States in F-1 nonimmigrant status on April 19, 2022;

  • Be currently maintaining F-1 nonimmigrant status;

  • Be enrolled in an SEVP-certified academic institution; and

  • Be experiencing severe economic hardship as a direct result of the ongoing armed conflict in Ukraine or current crisis in Sudan.

SSR notices will temporarily suspend applicable on-campus and off-campus employment regulations for eligible Ukrainian and Sudanese students until October 19, 2023.

Student and Exchange Visitor Program (SEVP) Continues March 2020 Guidance for the 2022-23 Academic Year

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The Student and Exchange Visitor Program (SEVP) will extend the guidance originally issued in March 2020 for the 2022-23 academic year. This guidance enables schools and students to engage in distance learning more than regulatory limits due to the continuing public health concerns created by COVID-19. The March 2020 guidance applies to nonimmigrant students who were actively enrolled at a U.S. school on March 9, 2020, and are otherwise complying with the terms of their nonimmigrant status, whether from inside the United States or abroad.

The March 2020 guidance applies to continuing F and M nonimmigrant students who were in valid F-1 or M-1 nonimmigrant status on March 9, 2020, including those previously enrolled in entirely online classes who are outside of the United States and seeking to re-enter the country for the 2022-23 academic year. Students actively enrolled at a U.S. school on March 9, 2020, who subsequently took courses online while outside of the country can re-enter the United States, even if their school is engaged solely in distance learning.

SEVP recently updated its frequently asked questions with information to clarify the application of the March 2020 guidance to the 2022-23 academic year and will continue to update these resources with the latest information and guidance for stakeholders.

Immigration and Customers Enforcement (ICE) Releases 2021 SEVP Annual Report

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U.S. Immigration and Customs Enforcement (ICE) released its 2021 Student and Exchange Visitor Program (SEVP) annual report. The report highlights calendar year 2021 data from the Student and Exchange Visitor Information System (SEVIS), a web-based system that includes information about international students, exchange visitors, and dependents while they are in the United States.

The COVID-19 pandemic impacted international student enrollment in the United States in 2021. The total number of SEVIS records for active F-1 and M-1 students was 1,236,748 in calendar year 2021, a decrease of 1.2 percent from calendar year 2020. Only Asia and Australia/Pacific Islands saw an overall decline in the number of students coming to the United States last year; all other continents saw an increase. International F-1 and M-1 students came from every continent in the world other than Antarctica, and from more than 224 countries and territories. Students from China and India made Asia the most popular continent of origin, accounted for 71.9 percent of the international student population.

Federal Court Rejects USCIS Claim That Decision to Revoke a Previously Approved Employment-Based Immigrant Visa Petition Is Not Reviewable in Zamana v. Renaud

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In Zamana v. Renaud, the plaintiff challenged the revocation of an approved Form I-140 employment-based immigrant visa petition in the U.S. District Court for the Southern District of Ohio. USCIS initially approved the petition, and then a month later issued a Notice of Intent to Revoke and ultimately revoked the approval. USCIS claimed that the petition was improperly approved in the first instance and the revocation was based upon the alleged erroneous decision.

 

Plaintiff brought a lawsuit under the Administrative Procedure Act alleging that the agency's decision to revoke Zamana's petition was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C §§ 701-706.53.  USCIS filed a motion to dismiss arguing that, because the agency's decision to revoke its approval of Zamana's petition was discretionary, under 8 U.S.C. § 1155, this Court has no jurisdiction to review it. 8 U.S.C. § 1252(a)(2)(B)(ii).

 

The court observed that a contrary finding would permit USCIS to evade judicial review of non-discretionary decisions by first approving the petition, then revoking the approval a few weeks later. Citing Jomaa v. United States, 940 F.3d 291 (6th Cir. 2019), the court held that non-discretionary decisions “are within our purview even where they underlie determinations that are ultimately discretionary.”

Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) Extend Form I-9 Requirement Flexibility

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The Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced an extension of the flexibility in complying with requirements related to Form I-9, Employment Eligibility Verification, due to COVID-19. This temporary guidance was set to expire April 30, 2022. Because of ongoing precautions related to COVID-19, DHS has extended the Form I-9 flexibilities until Oct. 31, 2022.

On March 20, 2020, DHS announced that it would exercise prosecutorial discretion to defer the physical presence requirements of the Employment Eligibility Verification (Form I-9) under Section 274A of the Immigration and Nationality Act (INA). This policy only applied to employers and workplaces that were operating remotely. If there were employees physically present at a work location, no exceptions to the in-person verification of identity and employment eligibility documentation for Form I-9 were implemented at that time.

See the original ICE news release from March 20, 2020, for more information on how to obtain, remotely inspect, and retain copies of the identity and employment eligibility documents to complete Section 2 of Form I-9. Please also consult ICE’s guidance for clarification on this provision.

Employers should monitor the DHS and ICE websites for additional updates regarding the status of Form I-9 completion flexibilities.

Department of Security Outlines Plans to Secure the Southern U.S. Border when Title 42 is Lifted

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Secretary of Homeland Security Alejandro Mayorkas announced updated plans on how U.S. immigration authorities are preparing to deal with a potential increase in migrant arrivals once Title 42 is lifted. In March 2020, the Centers for Disease Control and Prevention (CDC) invoked section Title 42 of the U.S. Code to require the immediate expulsion of noncitizen single adults and families to protect Americans from the spread of COVID-19. On April 1, 2022, CDC announced that it was lifting the Order on May 23, 2022.

 

The Department of Homeland Security (DHS) anticipates migration levels will increase as in other countries, which is consistent with global trends.  There are currently more people in the world displaced from their homes than at any time since World War II, including in the Western Hemisphere.

DHS has detailed its plans to prepare for and manage increased encounters of noncitizens at the Southwest Border. Many elements of the plan are currently being implemented as the U.S. manages a historic number of encounters, including a record number of noncitizens trying to enter the United States multiple times. The six pillars of the new U.S. border security plan are outlined in a memorandum released by Secretary Mayorkas on April 26, 2022.

DHS Extends COVID-19 Vaccination Requirements for Foreign Nationals Entering the U.S. via Land Ports of Entry and Ferry Terminals

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The Department of Homeland Security (DHS) will continue to require foreign nationals entering the United States via land ports and ferry terminals at the Canadian and Mexican borders to be fully vaccinated against COVID-19 and to provide related proof of vaccination upon request. These requirements will apply to non-U.S. travelers who are traveling both for essential and non-essential reasons, and do not apply to U.S. citizens, Lawful Permanent Residents, or U.S. nationals.

 

Non-U.S. travelers entering the United States via land ports of entry and ferry terminals, whether for essential or non-essential reasons, must continue to:

  • Verbally attest to their COVID-19 vaccination status;

  • Provide, upon request, proof of a CDC-approved COVID-19 vaccination;

  • Present a valid passport, Trusted Traveler Program card, or Enhanced Tribal Card; and

  • Be prepared to present any other relevant documents requested by a U.S. Customs and Border Protection (CBP) officer during a border inspection.

 

COVID-19 testing is not required to enter the United States via a land port of entry or ferry terminal.

 

President Biden Announces Uniting for Ukraine and How Americans Can Sponsor Ukrainian Refugees

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On April 21, 2022, President Biden announced Uniting for Ukraine, a new streamlined process to provide Ukrainian citizens who have fled Russia’s unprovoked war of aggression opportunities to come to the United States. Uniting for Ukraine provides a pathway for Ukrainian citizens and their immediate family members who are outside the United States to come to the United States and stay temporarily, with a period of parole up to two years.

Ukrainians participating in Uniting for Ukraine must have a supporter in the United States who agrees to provide them with financial support for the duration of their stay in the United States. The process begins when the supporter files Form I-134, Declaration of Financial Support, with U.S. Citizenship and Immigration Services (USCIS) to include information both on the supporter and the Ukrainian beneficiary. Ukrainians who meet the requirements receive authorization to travel directly to the United States and seek parole at a port of entry.

Additional information on who is eligible to participate and how to become a U.S. sponsor is on the Department of Homeland Security’s Uniting for Ukraine website.