Temporary Protected Status (TPS) Applicants Granted Nationwide Class Certification in Action Demanding USCIS Honor Their Right to Work
On August 25, 2023, the Western District Court of Washington granted class certification to a nationwide class consisting of “all individuals who have submitted or will submit an initial application establishing prima facie eligibility” for TPS “who have not received a final decision on the TPS application, and who have not been issued employment authorization documentation incident to their pending TPS application.” Under federal law, USCIS is required to grant eligible TPS applicants work authorization while their TPS applications are pending. However, USCIS does not issue temporary work permits upon receipt of TPS applications, but instead waits until the applications are ready for full merits adjudications before reviewing or granting work authorization. Many applicants for TPS wait for close to a year or longer before their applications are approved. Due to the ongoing delay, several TPS applicants filed suit against USCIS on March 9, 2023 to require USCIS to issue their work authorization documents based on their pending TPS applications and USCIS’s obligations under the federal law. Class members who fall under the nationwide certification need not do anything to participate in the current litigation.
The class certification order can be found here. The motion to dismiss order can be found here. The complaint can be viewed here.
USCIS Launches Online Appointment Request Form
On August 21, 2023, USCIS launched a new online form for individuals, attorneys, and accredited representatives to request an in-person appointment at their local field office without having to call the USCIS Contact Center.
With this online form, an individual or their attorney or accredited representative may request an in-person appointment at a field office for:
ADIT stamps (or, I-551 Stamp—evidence of U.S. permanent residence)
Emergency Advance Parole
Immigration Judge Grants, and more
USCIS notes that this is a tool for making requests and not a self-scheduling tool. Individuals cannot schedule their own appointments with USCIS. The USCIS Contact Center will review submitted request forms and the availability of in-person appointments at a specific field office. Individuals may request a specific date and time for an in-person appointment, but USCIS cannot guarantee that the requested appointment date will be scheduled. USCIS will confirm and schedule the individual for an available in-person appointment date and time. The USCIS Contact Center may need to contact an individual either by phone or email depending on the appointment reason and urgency, using the reference number provided to them at the time the request was submitted.
Individuals and representatives may go to my.uscis.gov/appointment for more information on the online appointment request form.
USCIS Updates Policy Guidance for the “Sought to Acquire” Requirement Under the Child Status Protection Act
On August 24, 2023, USCIS announced that it has updated its Policy Manual to clarify how the extraordinary circumstances exception will be applied to the “sought to acquire” requirement under the Child Status Protection Act (CSPA) to reflect the February 14, 2023 policy change.
The CSPA protects certain beneficiaries from losing their eligibility for immigrant visas and adjustment of status because they “age out” by turning 21 years of age during the immigration process and no longer qualify as a child for immigration purposes. To benefit from the CSPA, noncitizens must seek to acquire lawful permanent resident status within 1 year of when an immigrant visa becomes available. On February 14, 2023, USCIS issued policy guidance updating when an immigrant visa becomes available for the purpose of calculating an applicant’s CSPA age.
This change to the USCIS Policy Manual:
Explains that USCIS considers the policy change to reflect an extraordinary circumstance that may excuse an applicant’s failure to meet the sought to acquire requirement;
Clarifies that USCIS may excuse an applicant’s failure to meet the sought to acquire requirement if they did not apply to adjust their status because they could not calculate their CSPA age under the prior policy or their CSPA age would have been calculated as over 21, but they are now eligible for CSPA age-out protection under the new policy; and
Clarifies that USCIS consider applicants to have met the sought to acquire requirement if their application to adjust their status was pending on Feb. 14, 2023 and they applied to adjust their status within 1 year of a visa becoming available based on the Final Action Dates chart under the policy guidance that was in effect when they applied.
Under the policy guidance in effect before February 14, 2023, some noncitizens may not have applied to adjust their status because a visa was not available to calculate CSPA age under the prior policy, or the noncitizen’s CSPA age would have been calculated to be over 21 years old. If these noncitizens apply to adjust their status under the new policy issued on February 14, 2023, they may not be able to meet the 1-year sought to acquire requirement. However, noncitizens who do not meet this requirement may still benefit from the CSPA if they can establish that their failure to meet the requirement was the result of extraordinary circumstances.
USCIS Updates Voter Registration Guidance for Naturalization Ceremonies
On August 25, 2023, USCIS announced an update to its Policy Manual to provide clarification on voter registration access at administrative naturalization ceremonies.
The updated guidance:
Affirms that USCIS provides access to voter registration services at each administrative naturalization ceremony, including information regarding points-of-contact for voting and voter registration;
Provides that USCIS offices request that election officials from state or local government election offices attend ceremonies to distribute, collect, and review voter registration applications, and to officially register new citizens to vote;
Affirms that USCIS offices coordinate with non-partisan, non-governmental organizations for voter registration services when state and local government election officials are not available; and
Provides that, to the extent feasible, USCIS offices invite governmental or non-governmental organizations offering on-site voter registration services the opportunity to introduce themselves and address the naturalization candidates before the ceremony.
USCIS has also published Form N-401, Voter Registration Services Attestation, for non-governmental agencies to submit a one-time request for field offices to participate in administrative naturalization ceremonies.
Welcome Jennifer Ramirez!
Iandoli, Desai & Cronin are pleased to announce that Jennifer Ramirez has joined our firm as a paralegal. Jennifer has extensive experience working in immigration law and we are happy to have her join our team.
Attorney Anthony Pawelski’s article on the positive economic impact of immigrants in New England
Iandoli, Desai & Cronin would like to share Attorney Anthony Pawelski’s article on the positive economic impact of immigrants in New England, which was featured by the American Immigration Lawyers Association (AILA). Attorney Pawelski provides immigration services to clinicians, researchers, and professional staff at Mass General Brigham.
August 2023 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.
In August, the EB-1 preference category on the Final Action Chart for all countries will be backlogged. The EB-1 priority date for China and India is February 1, 2022, and January 1, 2012, respectively. The EB-1 priority date for all other countries will be August 1, 2023. This means an otherwise qualified foreign national with an approved EB-1 I-140 may not file the I-485 in August if their priority date is later than what is listed on the Visa Bulletin.
The EB-2 and EB-3 preference categories remains backlogged for all countries, which means that individuals in these categories may not file Form I-485 applications until their priority date becomes “current.”
The complete Visa Bulletin, including priority dates for family-based immigrant applications, can be found on the Department of State website. There is no additional information at this time on how various backlogs will progress starting in the new fiscal year (October 1, 2023). Iandoli, Desai & Cronin will continue to monitor the situation and provide client updates if/when we receive additional information.
If you have questions about planning, please schedule a consultation with one of the attorneys at Iandoli, Desai & Cronin (info@iandoli.com).
Department of Homeland Security Adds Eight Qualifying Fields of Study to the STEM Designated Degree Program List
The Department of Homeland Security (DHS) amended the DHS STEM Designated Degree Program List and added eight additional qualifying field of study and corresponding Department of Education Classification of Instructional Programs (CIP) code. The new codes are:
Landscape Architecture (04.0601)
Institutional Research (13.0608)
Mechatronics, Robotics, and Automation Engineering Technology/Technician (15.0407)
Linguistics and Computer Science (30.4801)
Composite Materials Technology/Technician (15.0617)
Developmental and Adolescent Psychology (42.2710)
Geospatial Intelligence (43.0407)
Demography and Population Studies (45.0501)
U.S. Citizenship and Immigration Services to Publish Revised Form I-9
U.S. Citizenship and Immigration Services (USCIS) will publish a revised version of Form I-9, Employment Eligibility Verification on August 1, 2023. Among the improvements to the form is a checkbox E-Verify employers can use to indicate remote examination of identity and employment authorization documents. Employers who were participating in E-Verify and created a case for employees whose documents were examined during COVID-19 flexibilities (March 20, 2020, to July 31, 2023), may choose to use the new alternative procedure starting on August 1, 2023, to satisfy the physical document examination requirement by August 30, 2023. Employers who were not enrolled in E-Verify during the COVID-19 flexibilities must complete an in-person examination by August 30, 2023. The revised Form I-9 will be published on uscis.gov on August 1, 2023. Employers can use the current Form I-9 (edition date 10/21/19) through October 31, 2023.
Customs and Border Protection Announces ESTA Ineligibility for Travelers Who Have Been Present in Cuba
In January 2021, the Secretary of State designated Cuba as a State Sponsor of Terrorism, making individuals who have been present in Cuba on or after this date ineligible for travel under the visa waiver program (VWP). The restriction on VWP travel also applies to individuals who are dual nationals of both a VWP country and Cuba at the time of applying. On July 6, 2023, the Department of Homeland Security updated the Electronic System for Travel Authorization (ESTA) application to reflect these changes. If an ESTA application has already been approved and it is later determined that the traveler has been present in Cuba or holds dual nationality with both a VWP country and Cuba, ESTA will be revoked, with very limited exceptions for certain military and government employees.