Biden Administration
Preserves and Fortifies DACA

On August 24, 2022, DHS Secretary Mayorkas announced a final rule that will preserve and fortify Deferred Action for Childhood Arrivals (DACA). The final rule is effective on October 31, 2022. This will allow for the maintenance of the current criteria for DACA and retains the same process to seek work authorization. Unfortunately, since July 16, 2021, an injunction has prohibited DHS for granting initial DACA requests under the final rule.

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Historical National Median Processing Times
Highlight Historic USCIS Backlogs

It is well known that it is possible to check USICS case processing times online for each type of application; less known, however, is that it is also possible to check USCIS's historic processing times. USCIS provides historical processing times for select forms from Fiscal Year 2012 to Fiscal Year 2022 on the Historic Processing Times webpage. The information on the page shows the median processing time by fiscal year (Oct. 1 – Sept. 30) for each type of USCIS application. The website's information is updated on a quarterly basis, and the latest numbers show record-breaking backlogs. According to the USCIS Ombudsman, there were 8.5 million pending applications at USCIS as of April 2022, and over five million of those were pending beyond their deadlines. By comparison, the backlog was around 2.7 million in July 2019.

The Historic Processing Times webpage reveals unprecedented backlogs for some of the most common categories of USCIS applications:

  • An I-130 Petition for Alien Relative took 6.5 months to adjudicate in FY 2017, but 10 months in FY 2022.
  • The I-131 Application for Travel Document for an Advanced Parole Document, which an applicant can use to travel while their I-485 is pending, took 3 months to adjudicate in FY 2017 but is now taking 7.2 months in FY 2022.
  • An I-539 Application to Extend/Change a Nonimmigrant Status took 2.8 months in FY 2017 but is now taking 7.2 months in FY 2022.
  • An I-765 Application for Employment Authorization based on a pending Adjustment of Status took 3 months to process in FY 2017, but that same application is now taking 6.9 months in FY 2022.

Notably, the Historic Processing Times highlights that some of the longest backlogs affect applicants who may be in some of the most vulnerable positions:

  • Form I-730 Refugee/Asylee Petition for accompanying family members of a refugee or asylee took 7.9 months to adjudicate in FY 2017, but is now taking 27.4 months in FY 2022.
  • Applications for Provisional Unlawful Presence Waivers (Form I-601A) are usually necessary when qualifying relatives will face extreme hardship with the applicant's deportation. While those applications took 4.6 months to adjudicate in FY 2017, they are now taking 30.7 months to adjudicate.
  • An I-918 Petition for U Nonimmigrant Status for foreign nationals who are victims of qualifying crimes now take almost 60 months to adjudicate, when they took less than a year in FY 2014!
How does USCIS calculate these historic processing times?

USCIS states that they use the median date of the first final adjudicate action (that is, approval or denial) to calculate processing times. The processing times include the time it takes to submit biometrics and for an applicant to respond to requests for additional evidence, as well as interview rescheduling. However, visa-regressed adjustment applications and premium processing are not included in the processing times shown on the website.

What is USCIS doing to address these backlogs?

USCIS has published Internal Cycle Time Goals in March 2022, which the agency plans to work toward. In May 2022, the agency also implemented an automatic 540-day renewal for any Employment Authorization Documents filed before they expire. Lastly, the agency is actively working to implement the option of online filings for many applications (currently 12), which should help streamline and expedite the application process for foreign nationals.

What can clients do if they are experiencing backlogs?

As addressed in our Summer newsletter, it may be possible to pursue a mandamus lawsuit in certain cases where the delay has become unreasonable. Even when USCIS claims that the case is within a normal processing time, historic data could potentially be used as an exhibit in the lawsuit demonstrating the egregiousness of the delays. It is important to first consult with an experienced immigration attorney when deciding to bring a mandamus claim in federal court.

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Unprecedented Delays in Issuing
Receipt Notices for Asylum Application Filings

On July 28, 2022, USCIS acknowledged that it was not issuing receipt notices in a timely manner for asylum applications. Considering that asylum applications must be filed within one year of the applicant's arrival, the delay in issuing a receipt notice could cause a monumental obstacle if the application is rejected. The failure in issuing a receipt notice also creates an additional obstacle in obtaining work authorization, as asylum applicants must prove that their application has been pending for 180 days to be eligible to obtain work with a work permit. Without the receipt notice, an asylum applicant has no proof the application is pending.

Fortunately, USCIS allows asylum applications to be filed electronically, immediately acknowledging receipt of the application. Reportedly, this has also led to a prompt issuance of a paper receipt notice as well.

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Pathway to Permanent Residence
Restored for Many TPS Recipients

On July 1, 2022, USCIS rescinded a previous policy from the Trump Administration they had adopted from Matter of Z-R-Z-C and revised their policy on authorized travel under Temporary Protected Status (TPS). The most significant changes from USCIS are the following:

  • TPS holders who travel abroad with authorization and are subsequently inspected and admitted by DHS will have been "inspected and admitted" and will be "present in the United States pursuant to a lawful admission," for purposes of adjustment of status. This will apply even if the TPS holder was present in the U.S. without admission or parole when first granted TPS.
  • For TPS holders who travelled with authorization prior to the July 1, 2022, change in policy, USCIS will consider on a case-by-case basis whether to apply the new policy guidance. In order to be considered under the July 1 memorandum, the past travel must meet the following requirements: (1) the TPS holder obtained authorization prior to travel; (2) the individual was in valid TPS status during their travel; (3) the individual returned to the U.S. with the authorization to travel; and (4) the individual was inspected at a port of entry and was either paroled or otherwise permitted to enter the U.S. based on the TPS-based travel authorization.

This new policy guidance is welcome change that will likely allow thousands of TPS holders to become eligible to adjust status to lawful permanent residence. Under the previous Trump policy, a TPS holder who traveled on advance parole after August 20, 2020, was not considered paroled for purposes of adjustment of status.

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U.S. Citizenship & Immigration Services
Updates Immigration Forms

From July 2022 through August 2022, USCIS announced edition updates to many immigration forms. These include updates to Form I-485, Form I-485, Supplement A, Adjustment of Status under section 245(i), Form I-601, Form I-693, Form I-602, among many more.

USCIS's website should be reviewed regularly to identity the acceptable form edition for a particular application/petition. The edition date is found at the bottom of the form's page. USCIS's website outlines which edition date(s) of a particular form it accepts. Typically, USCIS will continue to accept older editions of a particular form until a specified date, but the Service will outright reject applications/petitions if the incorrect edition of a form is used beyond that date. In such cases, USCIS will mail the application/petition back for resubmission. This can significantly delay the processing of a case since USCIS can take weeks and sometimes months to return an application/petition. The delay can be detrimental for certain foreign nationals with time-sensitive cases, such as those requesting a reentry permit or work permit, or those who face a status deadline.

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Becoming a U.S. Citizen Has Its Perks

If there is one action that you should take as a foreign national in the United States, it is to become a U.S. citizen when eligible. The upcoming midterm elections in November are a keen reminder of the privileges held only by U.S. citizens.

All naturalization applicants must generally meet the following requirement to become a U.S. citizen: (1) Be at least 18 years old at the time of filing; (2) Continuously and physically live in the United States as a green card holder for at least five years, or three years while married to a U.S. citizen; (3) Establish residency in the state or USCIS district where applicant intends to apply; (4) Show "good moral character"; (5) Have knowledge and understanding of the fundamentals of U.S. history and government; (6) Be able to read, write, and speak basic English; and (7) Take a loyalty oath to the United States and support the U.S. Constitution. Certain applicants qualify for an exemption to the categories above or may apply based on their U.S. military service.

Applying for citizenship when eligible is highly encouraged because the application process is simple (there is only one form to complete – Form N-400) and the benefits are significant. First, gaining U.S. citizenship allows the foreign national to petition for green cards for their parents, siblings, and married children. In cases where both U.S. citizens and green card holders can complete a petition (i.e., for spouses), the processing times for U.S. citizens tends to be significantly shorter. Second, minor children (i.e., under 18 years old) of U.S. citizens who are lawful permanent residents (LPRs) and reside in the United States can automatically acquire citizenship through their parents. A lesser-known benefit of U.S. citizenship is that U.S. citizens may be subject to fewer restrictions on estate taxes and may be able to obtain more tax exemptions than green card holders. Furthermore, U.S. citizens can participate in the democratic process of the United States by voting in state and federal elections and running for public office.

Furthermore, U.S. citizens are protected from deportation, whereas LPRs can be detained and removed for certain immigration violations. Lastly, U.S. citizens will have a U.S. passport, which can significantly facilitate travel in and out of the United States, and they are not required to maintain residence in the United States. LPRs risk the abandonment of their status if they spend significant time outside of the United States.

Clearly, the benefits of gaining U.S. citizenship are enormous. In some ways U.S. citizenship status can act as both a shield and a sword for foreign nationals — it can protect individuals from becoming subject to unfavorable immigration decisions and it can provide more opportunities for individuals to take full and complete advantage of the U.S. system and way of life.

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USCIS to Implement Second Stage
of Expanded Premium Processing

As of September 15, USCIS began accepting premium processing requests for the following employment-based immigrant visas:

  • Multinational executive and manager petitioners (EB-13, a/k/a EB-1C) received on or before January 1, 2022: and
  • EB-2 National Interest Waiver petitions received on or before February 1, 2022.

The filing fee for premium processing in these cases is $2500. When the Form I-907 is filed and receipted for the above-referenced applications, USCIS has 45 days to adjudicate the applications. This change represents a minuscule step forward for applications that have been pending adjudication for over a year and leaves a lot to be desired. In other circumstances, premium processing requires a decision to be issued within 15 days and can be filed with the initial application.

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DHS Announces Extension of Temporary Protected Status for Venezuelans: On July 11, 2022, USCIS indicated that it would extend TPS benefits for Venezuelans for an additional 18 months. The 18-month extension will be effective from September 10, 2022, through March 10, 2024. Only beneficiaries under the existing designation will be eligible to re-register for benefits. On September 7, 2022, USCIS posted public notice in the Federal Register instructions on how to re-register. Eligible beneficiaries must do so in the 60-day registration period from September 8, 2022, through November 7, 2022.

O-1 Nonimmigrant Visa Update: On July 22, 2022, USCIS updated its guidance for O-1A extraordinary-ability petitions related to science, technology, engineering, and mathematics (STEM) fields. This guidance provides further clarification on what evidence can support an O-1A petition in the STEM fields. The update delineated that being named on a competitive government grant for STEM research can be a positive factor toward demonstrating that a beneficiary is at the top of his or her field.

DHS Fails to File Appropriate Paperwork in Thousands of Immigration Court Cases: According to records obtained by Syracuse University, nearly one out of every six new cases DHS initiates in immigration court is now being dismissed because CBP officials are not filing the actual "Notice to Appear" (NTA) with the immigration court. This year so far, over 47,000 cases have been dismissed for this reason. By comparison, in 2013, only 355 cases were dismissed for this reason, roughly 0.2 percent of all court cases completed.

USCIS Extends COVID Flexibilities: On July 25, 2022, USCIS issued a notice indicating it would extend its flexibilities through October 23, 2022, allowing for 60 additional days to respond to Requests for Evidence, Continuances to Request for Evidence, Notices of Intent to Deny, Notices of Intent to Revoke, Notice of Intent to Rescind, Notices of Intent to Withdraw Temporary Protected Status, and Motions to Reopen N-400 Pursuant to Receipt of Derogatory Information After Grant. USCIS is further evaluating which policies can implemented permanently.

Government Inactions Leads to Record Number Lawsuits: In May of 2022, federal civil courts received over 647 civil actions for mandamus and other immigration delay litigation cases, the highest in recorded history. At this rate, estimates project over 6,276 delay cases for FY 2022, up from 4,347 in FY 2021, also a record high. Although USCIS was not the only government agency listed as a defendant in the lawsuits, it has acknowledged that delays have increased in recent years and has promised to address the backlogs.

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