Russian Invasion of Ukraine
United States Announces It Will
Up to 100,000 Ukrainians
Other Visa Options Include Humanitarian Parole
and Family-Sponsored Immigration
After a month of war and devastation from the Russian invasion, more than 3.6 million (and counting) Ukrainians have escaped their country and are seeking safety abroad. While the vast majority of refugees are now in Poland — some 2 million displaced people are being housed and cared for by Ukraine's neighbor — thousands of people are seeking refuge in the United States. The U.S. is home to about a million people of Ukrainian descent.
Legally, Ukrainians who seek to enter the United States can do so on immigrant visas, most commonly through I-130 immediate relative petitions filed on their behalf, on visitor or other nonimmigrant visa, on humanitarian parole, or through the U.S. refugee program. In response to the crisis, on March 24, the Biden Administration announced that the U.S. will accept up to 100,000 people who will be admitted into the U.S. through a variety of legal pathways, including the conventional refugee program as well as through humanitarian parole.
Humanitarian parole permits a person to be paroled into the United States for humanitarian purposes. Such applicants, however, normally must apply for a travel document (Form I-131), which must be issued in order for the person to board a commercial flight and then enter the United States. Meanwhile, hundreds of Ukrainians have traveled to Mexico to be "port" paroled without applying first for humanitarian parole. While humanitarian parole is quicker than the refugee process and provides individuals with work authorization, it does not provide a pathway to citizenship or other benefits. Those paroled in could, however, apply for asylum, but that process involves navigating a complicated, overburdened system that takes years. (See article on TPS for Ukrainians, below)
Expediting family reunification through I-130 immigrant visa processing is another avenue that would allow Ukrainian Americans to bring over their relatives. But most applicants have to apply for their immigrant visas at U.S. consulates abroad, which are already inundated due to the backlog from the pandemic. Visitor visas also must be obtained at U.S. consulates, and securing such visas now has become extremely difficult because applicants must demonstrate that they have a residence abroad that they do not intend to abandon and that they do not intend to stay in the U.S.
The displacement of so many people so quickly is tremendously tragic and unfathomable; the solutions offered by the United States so far have been lackluster.
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Biden Administration Announces Policies
to Improve Immigration for STEM Workers
In an effort to improve our immigration system for highly skilled STEM workers, the Biden Administration recently announced several immigration policies that are designed to make it easier for STEM workers to qualify for O-1 nonimmigrant and NIW immigrant visas.
USCIS Guidance for O-1 Petitions Focusing on STEM
USCIS's January 21, 2022, policy guidance on the O-1A "extraordinary ability" visa category offers additional clarity for meeting the regulatory criteria for O-1A applicants within STEM fields. For instance, to satisfy the "receipt of internationally or nationally recognized prizes or awards for excellence in the field of endeavor" criterion, beneficiaries in STEM fields can submit evidence of scholastic awards, such as PhD scholarships or dissertation awards, and include information about the criteria used to grant the award/prize, the national or international significance of the award/prize in the field, the number of awardees or prize recipients, etc. Furthermore, the new guidance also reiterates USCIS's acceptance of comparable evidence when a particular O-1A criterion is not easily applicable to a specific occupation. For example, if a beneficiary does not have evidence of published scholarly articles in journals or other major media, because the beneficiary's field of endeavor is in an industry rather than academia, USCIS will consider the beneficiary's presentations at major conferences or a major trade show as sufficient comparable evidence.
USCIS Updates Guidelines for STEM NIWs
Considering the importance of STEM fields in the U.S. economy, USCIS has provided additional guidance on the assessment of STEM applicants applying for National Interest Waivers (NIWs).
USCIS will still require applicants to meet the requirements set forth in the seminal case, Matter of Dhanasar, but the agency will consider other factors specific to STEM fields. For example, officers are advised to review a list of critical and emerging technology subfields, such as the list provided by the National Science and Technology Council, to identify if the proposed field is a critical and emerging technology field. After reviewing such list and all the other evidence submitted, the officer can determine if the particular STEM area is important to U.S. national interests.
For the first prong set forth in Dhanasar, the evidence must show that a STEM field has both substantial merit and national importance. The guidance recognizes that fields that aim to advance STEM technologies and research typically have substantial merit in connection to U.S. science and technology.
As for the second prong set forth in Dhanasar — well-positioned to advance the proposed endeavor — USCIS will give considerable weight to petitions where the applicant's advanced degree (particularly a PhD) in the STEM field is tied to the proposed endeavor and the applicant's work to advance a critical and emerging technology or other related STEM field is important to U.S. competitiveness or national security. However, evidence of an advanced degree alone is not a basis to satisfy the second prong. Evidence of the applicant's education should be corroborated with other documentary evidence, such as letters of support from the applicant's field, and when applicable, letters from interested government agencies or quasi-governmental entities. In fact, USCIS specifically mentions such letters, which, presumably, will be particularly persuasive. Thus, applicants are encouraged to include letters from interested government agencies or quasi-governmental entities in their petitions.
With respect to the third prong, the applicant bears the burden to demonstrate that factors in favor of granting the NIW outweigh those that support the requirement of a job offer through a labor certification. Here, USCIS will consider: (1) the applicant's advanced STEM degree (especially a PhD); (2) the applicant's ability to engage in work furthering a critical and emerging technology or other STEM area important to U.S. competitiveness; and (3) whether the applicant is well-positioned to advance the proposed STEM field of national importance. USCIS will give considerable weight to the petition if the endeavor can potentially support U.S. national security or advance U.S. economic competitiveness.
Twenty-Two Additional Fields Qualify for STEM F-1 OPT
As of January 21, 22 additional fields of study qualify for STEM Optional Practical Training (OPT). OPT allows foreign nationals in F-1 status, with employers enrolled in the E-Verify system, to apply for two additional years of practical training/work authorization. Foreign nationals in F-1 status in nonqualifying fields are granted only one year of OPT when they complete their degree program. The following are the 22 additional fields of study:
- General forestry
- Forest resources production and management
- Human-centered technology design
- Cloud computing
- Climate science
- Earth systems science
- Economics and computer science
- Environmental geosciences
- Geography and environmental studies
- Mathematical economics
- Mathematics and atmospheric/oceanic science
- General data science
- General data analytics
- Business analytics
- Data visualization
- Financial analytics
- Other data analytics
- Industrial and organizational psychology
- Social sciences, research methodology and quantitative methods
The addition of these additional fields complies with this administration's objective towards a more welcoming immigration system.
Initiatives to Increase J-1 Exchange Visitors
Involved in Academic Scholarship
The Administration also issued an initiative aiming to increase the STEM-focused educational and cultural exchange visitors. It provides that J-1 undergraduate and pre-doctoral students will be eligible for a 36-month extension of post-graduate academic training to gain practical experience related to their degree, up from the typical 18 months allotted. The extension will apply to the current and the 2022–23 academic years.
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H-1B Lottery Season:
May the Odds Be in Your Favor
With the H-1B registration period now closed, USCIS has just finished selecting H-1B registrants for the 2023 fiscal year for visas that become available October 1, 2022. Employers will have a 90-day window to complete and file the H-1B petition on behalf of the beneficiary if selected. The beneficiary must possess at least a bachelor's degree or the equivalent by the time of filing the H-1B petition — not registration.
Even if not initially selected in the lottery, employers and beneficiaries should be aware that supplemental selections may take place. In the last two years, additional selections from those who were registered in March were conducted in the summer. (Employers are advised to periodically check their USCIS portal or contact their immigration attorney on the status of additional selections.) Beneficiaries not selected should explore alternate pathways should they wish to maintain status in the United States. Most F-1 students graduating in the spring become eligible for work through Optical Practical Training (OPT) for up to 12 months. If studying a STEM field, it is possible to receive an additional 24-month OPT extension. There are other immigrant and nonimmigrant options that might be available to nonselected beneficiaries that should be carefully discussed with an experienced immigration attorney.
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New Public Charge Rule
The Department of Homeland Security issued a Notice of Proposed Rulemaking on February 24, updating the Department's application of the "public charge rule" using "fair and humane treatment" of foreign nationals requesting visas or green cards. The Department's proposed rule would return to its longstanding interpretation of the "public charge" regulation, a rule used to decide whether immigrants who have received certain public benefits may receive U.S. visas or green cards.
Under the "public charge" provision of U.S. immigration law, foreign nationals cannot receive U.S. visas or LPR status if they are found likely to become "primarily dependent on the government for subsistence" through cash assistance benefits or hospitalization for long-term care at the government's expense. DHS had been employing the same guidance based on rules that went into effect in 1999, barring certain applicants from receiving immigrant visas where they received cash assistance from the government for long-term care at the government's expense or cash assistance for income maintenance such as Temporary Assistance for Needy Families (TANF).
In 2019, under the Trump Administration, the government expanded the "public charge" definition to bar applicants from certain immigration statuses if they had received a much wider range of common government benefits, including housing and rental assistance, nonemergency Medicaid benefits, and Supplemental Nutrition Assistance Program (SNAP). The wider interpretation caused foreign nationals to be fearful of accessing benefits, even those that Congress intended them to have. In March 2021, the Biden Administration formally withdrew the Trump era 2019 public charge regulation. DHS Secretary Alejandro Mayorkas stated the 2019 public charge rule was "not consistent with our nation's values."
Under DHS's proposed rule, DHS is returning to its previous understanding of "public charge," where individuals will not be penalized for accessing health benefits or supplemental government services available to them. DHS will, however, still consider the following as penalties under the new rule: cash assistance for income maintenance under state, tribal, and local programs, or the Temporary Assistance for Needy Families (TANF) program, as well as supplemental security income (SSI), and long-term institutionalization at the government's expense. However, the government will not consider receipt of the following as a penalty: noncash benefits such as food assistance programs, most Medicaid benefits, housing benefits, disaster assistance, pandemic assistance, benefits received via tax credits or deductions, or Social Security, government pensions, or other earned benefits. As always, DHS will not consider past receipt of public benefits for categories of foreign nationals exempt from the "public charge" rule, including refugees, asylees, VAWA self-petitioners, and foreign nationals applying for TPS, SIJ status, or T and U visas. The proposed rule is not expected to go into effect at least for a few months.
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New Guidance Issued for
Certain Work Permit Applications
The Department of Homeland Security has updated the validity periods for employment authorization documents (EADs) for certain immigration categories. Under the new guidelines, issued February 7, DHS extended the maximum validity period for first-time employment authorization documents to two years for asylees/refugees, noncitizens with withholding of deportation or removal, and VAWA self-petitioners, or up to the end of the authorized deferred action or parole period to applicants in these filing categories. EADs for adjustment of status applicants already had been extended to two years.
In order to work lawfully in the United States, foreign nationals must obtain employment authorization that depends on their immigration status. Some immigration statuses automatically provide employment authorization "incident to status" for the principal H, L, E, O, etc. visa holder. Other immigration statuses require the foreign national to affirmatively apply for and obtain permission to work before employment can begin. If USCIS grants the authorization, the foreign national receives an employment authorization document (EAD) as evidence of their ability to work lawfully in the United States. USCIS also has discretion to assign validity periods for certain categories of employment authorization.
Before the February policy change, initial and renewal EADs were usually valid for one year for asylees/refugees, noncitizens with withholding of removal, and VAWA self-petitioners. Initial and renewal EADs were issued for foreign nationals with deferred action or parolees for periods shorter than the duration of their underlying deferred action or parole period. As a result, deferred action recipients and parolees were required to file multiple EAD applications. USCIS extended the validity period for these initial EADs to ease the burden on the agency and the public, given the current processing times. USCIS anticipates this policy change will reduce the number of times foreign nationals in these categories must reapply for EADs and prevent future gaps in their employment authorization.
The policy change applies to all EADs issued after February 7 for foreign nationals in the named categories. Employment authorization documents issued before that date were not affected.
On a somewhat related note, USCIS had announced that it will consider E and L spouses to be employment authorized incident to their valid E or L nonimmigrant status. In a recent notice, USCIS has advised that it is starting to modify Form I-94 validity period documents to distinguish E and L spouses from E and L children, making the form evidence of employment authorization.
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Settlement Offers Pathway to Green Card for Certain TPS Beneficiaries with Removal Orders
On March 21, 2022, USCIS reached a settlement that provides that until at least January 19, 2025, DHS should generally exercise prosecutorial discretion to reopen and dismiss removal orders for TPS beneficiaries who meet the following criteria:
- Currently possess Temporary Protected Status (TPS);
- Have a removal order issued by the Executive Office of Immigration Review (EOIR) or legacy INS;
- Have traveled on advance parole since the removal order was issued; and
- But for the removal order, are otherwise prima facie eligible for adjustment of status with USCIS, including but not limited to an approved or pending I-130 filed by an immediate relative.
The settlement is significant because eligible foreign nationals can now apply to adjust their status to permanent residency.
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U.S. Citizens' I-130s for Ukrainian, Ethiopian, & Afghan Immediate Relatives May Be Filed Locally
The Biden Administration announced on March 17 that U.S. citizens living overseas with immediate family members, but have not yet filed I-130 petitions, may file at a local U.S. embassy or consulate to process the immigrant visa. Eligible immediate relatives consist of spouses, unmarried children under the age of 21, and parents who fled Afghanistan after August 2, 2021; Ethiopia after November 1, 2020; or Ukraine after February 1, 2022. Local filing can expedite the overall processing of these cases.
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Matter of Laparra-DeLeon
BIA Issues Narrow Holding
Limiting Ability to Reopen Removal Orders
On January 18, the Board of Immigration Appeals (BIA) issued a ruling in Matter of Laparra-DeLeon, holding that a properly served noncitizen has received sufficient notice of a hearing, even if that respondent was served a noncompliant "notice to appear" that did not specify the time or place of the hearing This decision will limit the ability of some noncitizens to reopen removal orders for failing to appear at a removal hearing. Noncitizens who failed to attend their immigration court hearings can still pursue motions to reopen based on lack of notice or, alternately in some cases, based on exceptional circumstances. Alternately, noncitizens ordered removed in absentia can also seek reopening based on a joint motion with the DHS.
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NEWS IN BRIEF
TPS Designated for Ukraine, Afghanistan, and South Sudan: On March 2, DHS announced its redesignation for Temporary Protected Status (TPS) for South Sudan for a period of 18 months. On March 3, and on March 16, DHS made its announcements for TPS designations for Ukraine and Afghanistan, which were also designated for 18-month initial periods. For Ukrainian nationals, to be eligible for TPS, they must be present in the U.S. since March 1, 2022. For Afghan nationals, they must be present in the U.S. since March 15, 2022.
Biden Administration Lifts Immigration Visa Sanctions on Laos: The Biden Administration on February 8 lifted another Trump-era restriction that will open up a pathway for an estimated 2,000 Laotians to be reunited with their families.
USCIS Urges Eligible Applicants to Switch Employment-Based Categories: On February 18, USCIS issued an announcement encouraging eligible applicants to consider requesting the transfer of their underlying basis of their adjustment of status to the first or second employment-based preference categories. The overall employment based annual limit for FY 2022 is approximately twice as high as usual, because it includes some additional 140,000 unused family-sponsor visa numbers from FY 2021.
Department of State Proposes Fee Increase on Certain Nonimmigrant Visas: The Department of State released a proposed rule on December 29 proposing fee increases for tourist visas, employment-based visas, student and exchange visas, crew and transit visas, foreign media representatives, border crossing cards, and fees for the waiver of the J-1 visa two-year foreign residency requirement.
New CBP Process for Issuance of I-94s for Land Entrants: CBP issued a general notice that it is now issuing electronic rather than paper I-94s at land ports of entry except in limited circumstances. (Electronic I-94s have been issued for entry by air for years now.) A Form I-94 is needed by all visitors except U.S. citizens, returning resident aliens, aliens with immigrant visas, and most Canadian citizens visiting or in transit. Travelers are issued an I-94 during the admission process at the port of entry. CBP advises that travelers planning to enter via a land border may apply for an I-94 in advance, saving time while at the port of entry later.
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