U.S. Immigration Updates + Monthly Review for October 2022

DOS: Worldwide Visa Operations Recovering Faster Than Expected

On October 21, 2022, the Department of State (DOS) announced that worldwide visa operations are recovering faster than expected from COVID-19-pandemic-related effects. As a result, the agency has doubled hiring of U.S. Foreign Service personnel and said it expects to reach pre-pandemic processing levels this year.

The COVID-19 pandemic “forced profound reductions in DOS’s visa processing capacity” in two main ways, the agency explained. First, restrictions on travel to the United States, and local restrictions on public places like overseas consular waiting rooms, curbed the ability to see visa applicants. Second, as revenue from the application fees that fund visa processing operations was cut nearly in half, more than 300 overseas consular officer positions went unfilled in 2020 and 2021, further reducing the number of visa applications that could be processed.

DOS said that 96 percent of U.S. embassies and consulates are again interviewing visa applicants. Nonimmigrant visa applications are being processed at 94 percent of pre-pandemic monthly averages, and immigrant visa application processing is at 130 percent. In the past 12 months (through September 30, 2022), DOS processed 8 million nonimmigrant visas, well above its best-case projections. DOS also noted that the agency set records for student and academic exchange visitor visas. Consular sections worldwide adjudicated more student visas in July 2022 than in any other month since 2016, with nearly 180,000 F, M, and academic J visas processed, DOS said. In addition, the agency issued 54,334 diversity visas (DVs) during the DV-2022 program year—the highest number of DVs issued in 25 years, and all available DV numbers were exhausted when that total was combined with the domestic adjustments of status approved by USCIS under the DV program.

SOURCE: ABIL Immigration Insider, October 30, 2022, and DOS update, Oct. 21, 2022, https://bit.ly/3sJ1z9g


USCIS: Duplicate Copies of Form I-129 No Longer Required

U.S. Citizenship and Immigration Services (USCIS) no longer requires petitioners to submit duplicate copies of Form I-129, Petition for a Nonimmigrant Worker, or of the supporting documentation, unless the agency specifically asks for it.

“Due to enhanced electronic scanning capabilities and data-sharing with the U.S. Department of State, duplicate copies are no longer needed to avoid delays in consular processing,” USCIS said.

SOURCE: ABIL Immigration Insider, October 30, 2022, and USCIS alert: https://www.uscis.gov/i-129


USCIS Extends COVID-19 Related Flexibilities Through January 24, 2023

U.S. Citizenship and Immigration Services (USCIS) is extending certain COVID-19-related flexibilities through January 24, 2023, to assist applicants, petitioners, and requestors. Under these flexibilities, USCIS considers a response received within 60 calendar days after the due date set forth in the following requests or notices before taking any action, if the request or notice was issued between March 1, 2020, and Jan. 24, 2023, inclusive:

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;

· Notices of Intent to Withdraw Temporary Protected Status; 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 a 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 90 calendar days from the issuance of a decision USCIS made; and

· USCIS made that decision between Nov. 1, 2021, and Jan. 24, 2023, inclusive. As a reminder, the reproduced signature flexibility announced in March 2020 became permanent policy on July 25, 2022.

SOURCE: USCIS Newsroom, October 24, 2022: https://www.uscis.gov/newsroom/alerts/uscis-extends-covid-19-related-flexibilities-0


DOL Issues Final Rule on Temporary Labor Certification Regulations

The Department of Labor (DOL) published a final rule on October 12, 2022, that revises its regulations governing the certification of employment of nonimmigrant workers in temporary agricultural employment and the enforcement of obligations applicable to employers of H-2A workers and similarly employed workers in the United States.

After consideration of comments received in response to the proposed rule, the Department separated the proposals into two rules. This first rule encompasses almost all of the proposed rule except the adverse effect wage rate (AEWR) methodology. The second will address changes to the AEWR methodology.

The final rule addresses minimum standards and conditions of employment that employers must offer to workers; expands DOL’s authority to use enforcement tools, such as program debarment for substantial violations of program requirements; modernizes the process by which the Department receives and processes employers’ job orders and applications for temporary agricultural labor certifications, including the recruitment of U.S. workers; and revises the standards and procedures for determining the prevailing wage rate.

SOURCE: ABIL Immigration Insider, October 16, 2022; and https://www.govinfo.gov/content/pkg/FR-2022-10-12/pdf/2022-20506.pdf


U.S. Court of Appeals Upholds Optional Practical Training and STEM Extension

On October 4, 2022, the U.S. Court of Appeals for the District of Columbia affirmed the judgment of the district court sustaining the Department of Homeland Security’s (DHS) current Optional Practical Training (OPT) rule’s authorization of a limited period of post-coursework OPT, if recommended and overseen by the school and approved by DHS, for qualifying students on F-1 visas. OPT includes an extension for students in science, technology, engineering, or mathematics (STEM) fields of an additional 24 months beyond the OPT period of 12 months.

Among other things, the court held that authorizing foreign students to engage in limited periods of employment for practical training as their schools recommend according to the terms set out in the rule is a valid exercise of DHS’s authority. The court also noted that “practical training not only enhances the educational worth of a degree program, but often is essential to students’ ability to correctly use what they have learned when they return to their home countries. That is especially so in STEM fields, where hands-on work is critical for understanding fast-moving technological and scientific developments.”

The court noted that more than 100,000 of the roughly 1 million international students who come to the United States complete a period of practical training.

SOURCE: ABIL Immigration Insider, October 9, 2022


USCIS Rule on Public Charge Inadmissibility Will Go into Effect in December

U.S. Citizenship and Immigration Services (USCIS) announced a final rule on the public charge ground of inadmissibility. The new rule will go into effect on December 23, 2022 and will apply to applications postmarked on or after that date. Until then, USCIS will continue to apply the 1999 Interim Field Guidance on public charge inadmissibility, as it has done since March 9, 2021. Under the new rule, USCIS formalizes an approach that allows it to follow the law, protect the country’s interests, and address the fear and confusion that previously led eligible noncitizens to disenroll from public benefits (even when they were not subject to the public charge ground).

Under the final rule, USCIS will determine if a noncitizen is likely to become a public charge based on the following:

· Age, health, family status, financial status (including assets and resources), education, and skills;

· Whether a sponsor has submitted Form I-864, Affidavit of Support Under Section 213A of the INA, for the noncitizen (when required); and

· Whether the noncitizen has received or is receiving:

o Supplemental Security Income (SSI);

o Cash assistance for income maintenance under Temporary Assistance for Needy Families (TANF);

o State, tribal, territorial, or local cash benefit programs for income maintenance (often called “General Assistance”); or

o Long-term institutionalization at government expense.

Under the new rule, USCIS will NOT consider the following when making a public charge determination:

· Benefits received by the noncitizen’s family members;

· Supplemental Nutrition Assistance Program (SNAP) or other nutrition programs benefits;

· Children’s Health Insurance Program (CHIP) benefits;

· Medicaid (other than long-term institutionalization at government expense);

· Housing benefits;

· Any benefits related to immunizations or testing for communicable diseases; or

· Other supplemental or special-purpose benefits.

Under U.S. immigration law, public charge inadmissibility does not affect or apply to some applicants. That means the new rule will not affect a noncitizen if she or he is:

· Already a lawful permanent resident (in most cases);

· A refugee;

· An asylee;

· Applying for or re-registering for Temporary Protected Status;

· A special immigration juvenile; or

· Applying for or have T, U, or Violence Against Women Act (VAWA) status.

SOURCE: Federal Register: https://www.federalregister.gov/documents/2022/09/09/2022-18867/public-charge-ground-of-inadmissibility


Green Card Validity Extended to 24 Months for Renewals

Effective September 26, 2022, U.S. Citizenship and Immigration Services (USCIS) is automatically extending the validity of permanent resident cards (green cards) to 24 months for lawful permanent residents who file Form I-90, Application to Replace Permanent Resident Card.

Lawful permanent residents who properly file Form I-90 to renew an expiring or expired green card may receive this extension. Form I-90 receipt notices had previously provided a 12-month extension of the validity of a green card. USCIS said it has updated the language on Form I-90 receipt notices to extend this validity to 24 months for individuals with a newly filed Form I-90.

On September 26, 2022, USCIS began printing amended receipt notices for individuals with a pending Form I-90. These receipt notices can be presented with an expired green card as evidence of continued status, USCIS said.

SOURCE: ABIL Immigration Insider, October 3, 2022 and https://www.uscis.gov/newsroom/alerts/uscis-extends-green-card-validity-extension-to-24-months-for-green-card-renewals


Temporary Waiver of 60-Day Rule Extended for Civil Surgeon Signatures on Form I-693

U.S. Citizenship and Immigration Services (USCIS) has extended its temporary waiver of the 60-day rule for civil surgeon signatures on Form I-693, Report of Medical Examination and Vaccination Record. The waiver, which was effective until September 30, 2022, has been extended to March 31, 2023.

The waiver applies to all Forms I-693 associated with applications for underlying immigration benefits that have not been adjudicated, regardless of when the application was submitted to USCIS or when a civil surgeon signed the Form I-693.

USCIS said the waiver will help applicants who have been affected by the COVID-19 pandemic and related processing delays, which have sometimes delayed immigration medical examinations, as well as applicants, including Afghan nationals evacuated under Operation Allies Welcome, who completed immigration medical examinations but could not apply for adjustment of status within 60 days of a civil surgeon signing their Form I-693.

SOURCE: ABIL Immigration Insider, October 3, 2022, and


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