DHS Announces Registration Process for Temporary Protected Status for Afghanistan

On May 19, 2022, the Department of Homeland Security (DHS) posted for public inspection a Federal Register notice on Temporary Protected Status (TPS) for Afghanistan. This notice provides information about how to register for TPS under Afghanistan’s designation. 

The registration process began on May 20, 2022. All individuals who want to request TPS under the designation of Afghanistan must file an application.

To be eligible for TPS under the Afghanistan designation, individuals must demonstrate their continuous residence in the United States since March 15, 2022, and continuous physical presence in the United States since May 20, 2022. USCIS estimates 72,500 individuals currently in the United States may be eligible for TPS under the designation of Afghanistan. Afghan nationals currently not residing in the United States or who arrived in the United States after March 15, 2022, are not eligible for TPS under this designation.

Through Operation Allies Welcome, most Afghan nationals who arrived as part of the evacuation effort were paroled into the United States on a case-by-case basis, for humanitarian reasons, for a period of two years and received work authorization. These individuals may also be eligible for TPS.

Individuals applying for TPS under the Afghanistan designation must submit Form I-821, Application for Temporary Protected Status, during the 18-month initial registration period that runs from May 20, 2022, through November 20, 2023. Afghanistan TPS applicants are eligible to file Form I-821 online. When filing a TPS application, applicants can also request an Employment Authorization Document by submitting a completed Form I-765, Application for Employment Authorization, with their Form I-821. Applicants may also submit Form I-765 online.

SEVP Clarification of Continuation of March 2020 Guidance for the 2022-23 Academic Year

On May 31, 2022, The Student and Exchange Visitor Program (SEVP) reissued its guidance for the 2022-23 academic year to clarify that the guidance only applies to nonimmigrant students who were actively enrolled at a U.S. school on March 9, 2020, and have continuously complied with the terms of their nonimmigrant status. Students who enrolled after March 9, 2020, must adhere to SEVP’s existing regulations regarding online learning, found here.

The original guidance issued by SEVP stated that schools and students are permitted to engage in distance learning in excess of regulatory limits due to the public health emergency generated 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.

SEVP has updated their FAQ page 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.

DHS Issues Special Student Relief Employment Benefits For F-1 International Students from Afghanistan

On May 19, 2022, the U.S. Department of Homeland Security (DHS) posted a notice in the Federal Register announcing the suspension of certain regulatory requirements for F-1 students from Afghanistan who are experiencing severe economic hardship as a result of the current situation in their country of citizenship. This notice temporarily suspends applicable on-campus and off-campus employment regulations for eligible Afghani students until November 20, 2023.

Special Student Relief (SSR) is the suspension of certain regulatory requirements by the secretary of DHS for an 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.

SSR applies when emergent circumstances occur. Emergent circumstances are world events that affect F-1 students from a particular region and create significant financial hardships, such as but not limited to:

• Natural disasters.

• Wars and military conflicts.

• National or international financial crises.

To find a list of active SSR notices, visit the What’s New page on ICE.gov/SEVP.

June 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 June 2022, USCIS has indicated that for Employment-Based immigration, the “Final Action Dates” 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 June, 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 June.

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 May, 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 June.

The EB-5 preference category has been reformed under the EB-5 Reform and Integrity Act. The May visa bulletin added three new categories for EB-5 processing, which remain on June’s visa bulletin. 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).

USCIS Provides Employment Authorization Documents (EAD) Automatic Extension Calculator

USCIS is now providing an online EAD Automatic Extension Calculator to assist employers and employees with determining the EAD expiration date for eligible employees.

USCIS previously announced an increased automatic extension period for certain Work Permit applicants.  Noncitizens in certain employment eligibility categories who timely file Form I-765, Application for Employment Authorization, to renew their employment authorization and/or EADs may receive an up to 540-day automatic extension of their employment authorization and/or EAD validity. The renewal application must be for the same employment eligibility Category Code as the current EAD, except that for EADs with an A12 or C19 Category, the EAD renewal application can have either A12 or C19.

The extension begins on the “Card Expires” date on the front of the EAD and generally continues for up to 540 days, unless USCIS denies the renewal application earlier. To help employers calculate the maximum up to 540-day period, USCIS has developed the EAD Automatic Extension Calculator, which can be accessed below.

For complete guidance on qualifying employees, visit the Handbook for Employers, Section 4.4, Automatic Extensions of Employment Authorization and/or Employment Authorization Documents (EADs) in Certain Circumstances.

USCIS notes that this calculator is intended to assist employers in calculating the new EAD expiration date for employees eligible for an automatic extension of their expiring employment authorization and/or EADs based on the recently announced temporary final rule. The calculator does not replace an employer’s responsibility to determine the eligibility of their employees for the automatic extension. Employers determining automatic extensions for Category Codes A17, A18, and C26, should not use this calculator, but rather use the guidance in the Handbook for Employers, Section 4.4, Automatic Extensions of Employment Authorization Documents (EADs) in Certain Circumstances, including information under the heading “For Category Codes A17, A18, and C26”

USCIS to Implement Premium Processing for Certain Previously Filed EB-1 and EB-2 Form I-140 Petitions

On May 24, 2022, U.S. Citizenship and Immigration Services announced additional information about the planned implementation premium processing for certain petitioners who have a pending Form I-140, Immigrant Petition for Alien Workers, under the EB-1 and EB-2 classifications. This expansion of premium processing only applies to certain previously filed Form I-140 petitions under an E13 multinational executive and manager classification or E21 classification as a member of professions with advanced degrees or exceptional ability seeking a national interest waiver (NIW). Petitioners who wish to request a premium processing upgrade must file Form I-907, Request for Premium Processing Service.

The expansion will occur in phases:

• Beginning June 1, 2022, USCIS will accept Form I-907 requests for E13 multinational executive and manager petitions received on or before January 1, 2021.

• Beginning July 1, 2022, USCIS will accept Form I-907 requests for E21 NIW petitions received on or before June 1, 2021, and E13 multinational executive and manager petitions received on or before March 1, 2021.

As the expansion of premium processing is being implemented in a phased approach, USCIS will continue working towards premium processing availability of additional Form I-140 petitions, Form I-539 and Form I-765 in fiscal year 2022. USCIS will also adhere to the congressional requirement that the expansion of premium processing must not cause an increase in processing times for regular immigration benefit requests.

USCIS will reject premium processing requests for these Form I-140 classifications that are filed before their start date of June 1, 2022, or July 1, 2022. USCIS has 45 days to complete premium processing for these newly included Form I-140 classifications. USCIS will not accept new (initial) Forms I-140 with a premium processing request at this time.

USCIS will also reject premium processing requests for these classifications that are filed before their start date of June 1, 2022, or July 1, 2022. USCIS will not accept new (initial) Forms I-140 with a premium processing request at this time.

Massachusetts Senate Oks Immigrant Driver's License Bill; Governor Vetoes; Override Expected

The Massachusetts Senate approved a bill on May 2, 2022 that would allow undocumented immigrants to obtain state driver’s licenses, moving the proposed change one step closer to becoming law. If passed into law, Massachusetts would join 16 other states, and the District of Columbia, that already have similar laws.

The bill was approved 32-8 in the Democratic-controlled chamber. That is enough to override a possible veto from Republican Gov. Charlie Baker, who has expressed opposition to similar efforts in the past. The bill passed by the Senate is nearly identical to the version that previously passed the House of Representatives this year.   Governor Baker vetoed the bill on May 27, 2022.   The bill previously passed in both the House and Senate by a wide enough margin to overcome the governor’s veto.  It will be up to the House to initiate a veto override, with a two thirds majority vote required in each branch to make the bill law. 

Under the bill, expanded access to standard driver's license would begin on July 1, 2023. Applicants under the bill would need to provide proof of their identity, date of birth and residency in Massachusetts.

Governor Baker vetoed the law.  It passed with veto-proof majorities in both houses.  An override is expected in the next few weeks.

Federal judge blocks Biden administration from lifting Title 42, for now

On May 20, 2022, a federal judge blocked the Biden administration from ending a Trump-era pandemic restriction, known as Title 42, at the US-Mexico border, thwarting plans to terminate the controversial public health authority.

Since taking office, the Biden Administration has continued to rely on Title 42, a public health authority invoked at the onset of the coronavirus pandemic that allows border officials to turn migrants away at the US-Mexico border.

On April 1, 2022, the US Centers for Disease Control and Prevention announced that it intended to terminate the order. The CDC said at the time it was no longer necessary given the reduction of Covid-19 cases increased availability of vaccines and treatments for Covid-19.  In response to this, the Louisiana Western District Court found that the Biden administration did not follow the correct administrative procedures in ending the authority and argued that while a President may invoke an action without administrative procedures under emergency conditions, those flexibilities may not apply with respect to terminating it.

The termination of Title 42, the judge concluded, is not exempt from the notice and comment process, which can potentially take months. The public health authority, which has been fiercely criticized by immigrant advocates, will remain in effect for now.

A Department of Justice spokesperson has stated that the department intends to appeal the decision.

CBP Announces ESTA Fee Change

On Tuesday, May 24, 2022, U.S. Customs and Border Protection (CBP) announced that the ESTA travel promotion fee was increased from $10 to $17, in addition to a $4 operational fee. CBP began collecting the new fee amount on May 26, 2022. Individuals with an approved ESTA do not have to re-apply at this time, as an ESTA is valid for up to two years.

The ESTA is an automated system that determines the eligibility of visitors to travel to the United States under the Visa Waiver Program (VWP) by air, land, or sea. The VWP enables eligible nationals of 40 countries to travel to the United States for business or tourism for stays of up to 90 days without a visa if they have an approved ESTA. CBP encourages travelers to obtain an approved ESTA by using the official website Official ESTA Application Website, U.S. Customs and Border Protection (dhs.gov).

National Visa Center Public Inquiry Telephone Line Suspension

The National Visa Center (NVC) has announced that it has suspended its public inquiry telephone line as of May 23, 2022 as a measure to address critical backlogs.  The suspension of public inquiry telephone lines will not impede any essential functions of NVC and individuals will still be able to contact us using the methods identified below and find information regarding common IV and NIV inquiries on the State Department’s Helpful Hints pages.

Tips for interacting with NVC:

1. Visit https://nvc.state.gov for detailed instructions on processing your case.

2. For immigrant visas only, use the Public Inquiry Form at https://nvc.state.gov/inquiry if you cannot find the answer to your question at https://nvc.state.gov or https://ceac.state.gov.

3. Do not submit repeat inquiries. Multiple inquiries on a single topic will delay the NCV’s ability to respond. Visit https://nvc.state.gov/timeframes to check inquiry processing and case processing dates. Do not submit a follow-up inquiry while your case is within those timeframes.