Senate Parliamentarian Rejects Immigration Provisions in the Build Back Better Spending Bill

After the Senate parliamentarian rejected a plan that included work permits and protection from deportation favored by Democrats for inclusion in the “social spending” budget reconciliation bill, lawmakers struggled to consider their options, including revisions to the immigration provisions or simply moving ahead without parliamentarian approval. Several Democratic senators issued a joint statement: “We strongly disagree with the Senate parliamentarian’s interpretation of our immigration proposal, and we will pursue every means to achieve a path to citizenship in the Build Back Better Act.”

The parliamentarian has not yet addressed other immigration provisions included in the social spending bill, such as green card backlog relief, and their fate remains uncertain.

Source: ABIL Newsletter, December 19, 2021

I-9 Flexibility Extended by the Department of Homeland Security

The Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced an extension of the flexibility policy in complying with certain physical inspection requirements related to Form I-9, Employment Eligibility Verification. The flexibility policy was set to expire December 31, 2021, but because of ongoing pandemic issues, DHS extended it until April 30, 2022. 

DHS said that eligible employees working exclusively in remote settings are temporarily exempt from the physical inspection requirements associated with the Employment Eligibility Verification (Form I-9) until they undertake non-remote employment on a regular, consistent, or predictable basis, or the extension of the flexibilities related to such requirements is terminated, whichever is earlier. If employees are physically present at a work location, no exceptions are being implemented now for in-person verification of identity and employment eligibility documentation.

Employers are advised to monitor the DHS and ICE workforce enforcement announcements for updates on ending the extension and resuming normal operations. E-Verify participants who meet the criteria and choose the remote inspection option should continue to follow current guidance and create cases for their new hires within three business days from the date of hire, DHS said.

Source: ABIL Newsletter, December 19, 2021

Q4 USCIS Data Shows Some Progress But Backlogs Remain

U.S. Citizenship and Immigration Services (USCIS) released fourth-quarter fiscal year (FY) 2021 reports offering a snapshot of statistics for the entire fiscal year. The agency noted:

  • Employment-based adjustments: USCIS said it faced an unprecedented challenge of processing more than 237,000 employment-based permanent residence (green card) applications—which 122,000 immigrant visa numbers that the Department of State was unable to process in FY 2020 due to COVID-19 pandemic restrictions. By the end of FY 2021, USCIS had approved more than 172,000 employment-based adjustment of status applications, which the agency said was 50% above the typical baseline.
  • Processing delays: Across the agency, the volume of pending cases increased as well as associated processing times. To address the backlogs, USCIS said it reused biometrics for 2.5 million applicants since March 2020; reduced the number of pending biometrics appointments from 1.4 million in January 2021 to 155,000 as of the end of September; and fully eliminated the “front-log” of cases awaiting intake processing (which was more than 1 million receipts in January 2021 and was eliminated in July) by expanding staffing and overtime at USCIS Lockbox facilities.

The USCIS table below shows approved employment-based petitions awaiting visa availability by preference category and country of birth as of September 2021. The grand total was 438,377, with the most from India at 357,720.

Source: ABIL Newsletter, December 19, 2021

DV-2022 Document Submission Requirements Changed by DOS

The Department of State (DOS) announced that as of December 9, 2021, individuals who were randomly selected to participate in the diversity visa (DV) program for fiscal year (FY) 2022 only need to submit to the Kentucky Consular Center (KCC) the DS-260 immigrant visa application form for themselves and any accompanying family members. Once the DS-260 is received for all applicants associated with a case, that case will be eligible to be scheduled for a visa interview.

DOS said that DV-2022 selectees no longer must submit to the KCC any other required supporting documents for DV-2022 to be eligible for an in-person interview at an embassy or consulate. Rather, all supporting documents for DV-2022 selectees will be collected in connection with the interview and evaluated at the embassy or consulate where the visa application is made. DOS said it is treating this as a “pilot program” and will assess the costs and benefits later in the program year.

Source: ABIL Newsletter, December 19, 2021

  • DOS update, Dec. 9, 2021, https://travel.state.gov/content/travel/en/News/visas-news/diversity-visa-2022-update.html

Problematic O-1 Adjudication Trend Identified by AILA

In November 2021, the American Immigration Lawyers Association (AILA) contacted the U.S. Citizenship and Immigration Services (USCIS) to bring to the agency’s attention a problematic trend that AILA’s Case Assistance Committee has been monitoring over the past few months involving the adjudication of O-1 petitions at the Vermont Service Center (VSC). In particular, the Committee observed that RFEs issued by the VSC are not comporting with the O-1 regulations and applicable case law. Among the O-1 criteria where the Committee observed the most problematic RFE language and adjudication trends relate to 1) original contributions of major significance in the field 2) published material about the beneficiary and 3) judge of the work of others.

AILA provided a summary to USCIS outlining this problematic trend, as well as a sampling of case examples to help illustrate the problem. AILA also offered recommendations on how USCIS can help to address this problematic trend.

In response to AILA, USCIS indicated that it has reviewed the concerns raised by AILA, revised the O-1 RFE templates and provided additional training to its officers.

The AILA USCIS Case Assistance Committee will continue to monitor this issue to ensure USCIS is comporting with the O-1 regulations and applicable case law.

The AILA USCIS Case Assistance Committee would like to provide a special thank you to committee member Suzanne Seltzer for helping to summarize the issue and collect case examples highlighting this problematic trend.

Source: AILA Doc. No. 21121501, December 14, 2021 

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