Big Implications for Immigration Law

KKTP Case Argued
Before U.S. Supreme Court

On December 6, 2021, the Supreme Court of the United States heard argument in Patel v. Garland, an important case about the power of courts to hear immigration cases. At issue is whether federal courts can review denials of green card applications and other forms of discretionary immigration relief when factual issues are in dispute. KKTP was appointed by the lower court to represent the Patel family and continues to serve as lead counsel for the family in the Supreme Court. More information about the case can be found on KKTP's website.

A decision from the Supreme Court is expected by July 2022.

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Recommendations for DOS

Current State of Visa Backlog
and Processing Delays

Today, individuals, families, and U.S. businesses have experienced crisis-level immigrant and nonimmigrant visa backlogs and visa processing delays at the Department of State (DOS). These backlogs and delays have had significant consequences. Families have been separated. Individuals have lost their chance at the American Dream. U.S. businesses have been unable to bring in and bring back foreign talent to fill seasonal and permanent positions, thereby affecting our nation's economic recovery from the COVID-19 pandemic. DOS itself also has suffered. Because U.S. embassies and consulates around the world were shut down due to the pandemic, DOS encountered significant financial difficulties as a result of a decrease in DOS's fee revenue, coupled with an eight-fold increase in the consular immigrant visa backlog.

The following is excerpted and condensed from a policy brief prepared by the American Immigration Lawyers Association (AILA) to offer sensible policies and procedures that DOS can adopt to ensure the continued efficient function of DOS beyond the global pandemic. We encourage businesses and families to discuss these ideas with their members of Congress.

Here are the numbers:

There has been a sharp reduction in the issuance of immigrant visas (IVs) and nonimmigrant visas (NIVs). The average number of IVs issued per month during the pandemic is just over 11,000, a far cry from the pre-pandemic average of close to 39,000. In 2019, the monthly average of immigrant visa cases pending at the National Visa Center (NVC) waiting for an interview was 60,866. Two years later, those numbers have skyrocketed, with the NVC reporting 506,221 immigrant visa applications awaiting interviews in June 2021. As the NVC confirmed in February 2021, it continues to schedule cases only for posts that can conduct interviews. While things appear to be trending in the right direction, the restrictions brought on by the pandemic have created an enormous IV backlog that continues to rise. Nonimmigrant visa issuance also fell sharply during this time with monthly averages for issuances falling from over 721,305 to about 144,224 per month.

Resume stateside processing of visa renewals.

DOS has the authority to renew nonimmigrant visas from within the United States, and did so routinely for nondiplomatic C, E, H, I, L, O, and P visa categories until July 16, 2004. In suspending the stateside reissuance policy for nondiplomatic visa categories in 2004, DOS cited a new law requiring biometric identifiers as part of the visa issuance process and its inability to capture biometrics in the U.S. as the motivation for its decision. Seventeen years later, the capture of biometrics should no longer be a problem. At a time when the immigrant visa backlog is more than eight times the normal backlog and encompasses more than half million documentarily qualified applications, reinstituting U.S. nonimmigrant visa reissuance for the categories above would be a tremendous step in allowing consular posts to focus on reducing the backlog and other key priorities.

Automatically extend visas that have expired during the pandemic by 24 months.

DOS should further consider providing 24-month automatic extensions for nonimmigrant visa holders who were either stranded abroad or required to return home for urgent business or family emergencies during the pandemic, provided that they have a valid I-797 notice from USCIS or a valid DS-2019 or I-20.

Maximize staffing on IV processing at consular posts.

Filling long-standing vacancies in DOS at the ambassadorial, Deputy Assistant Secretary (DAS), and Assistant Secretary (AS) levels to restore proper management and operations at both agencies is necessary to successfully tackle the pandemic-related backlogs. In addition to staffing leadership positions, it will be necessary to increase staffing at consular posts and, to a lesser extent, at the Visa Office. DOS should use all proven historical methods to quickly increase consular staffing, including deputizing staff to act as consular officers and calling back experienced former consular officers and other DOS officials. DOS should also recruit recent graduates and consider offering, over time, to forgive student debt in exchange for their service.

Revise regulations to allow virtual immigrant and nonimmigrant visa interviews.

DOS must quickly finalize its proposal allowing the waiver of certain in-person appearance and oath requirements for immigrant visa applicants. DOS should revise current regulations to authorize virtual interviews for initial nonimmigrant visa applicants to aid in tackling the backlog while minimizing physical contact, allowing staff from anywhere in the world to interview applicants safely. Security concerns can still be addressed since the officer will be able to see the applicant and compare the applicant to the passport picture. Higher-risk cases could continue to require in-person interviews. [See below: DOS has extended the waiver of certain in-person interviews.]

Leverage U.S.-based consular officers to adjudicate visa applications.

In addition to in-country foreign service officers (FSOs), new FSOs, deputized civil servants, and retirees could be trained as supplemental personnel to engage in remote visa interviews and handle other aspects of the visa issuance process from within the United States, resulting in reduced appointment wait times and avoiding space constraints at consular posts abroad. This would be an inexpensive and faster way to eliminate the backlog, as lack of space to physically distance applicants and personnel at consular posts cannot be quickly addressed.

Leverage Interagency Coordination with U.S. Customs and Border Protection (CBP).

Admit all U.S. lawful permanent residents (LPRs) returning to the United States from abroad without conducting an abandonment analysis if they last departed the United States on or after December 31, 2019, or who had a valid reentry permit on that date and discourage SB-1 returning resident visa applications at consular posts. Current regulations impose a presumption of abandonment for LPRs who have been outside the United States for more than one year. Adopting a policy allowing all LPRs to be admitted without a CBP abandonment analysis or the need for an SB-1 returning resident visa application would avoid unnecessary consular applications.

Automatically extend immigrant visas from six months to 18 months.

By law, immigrant visas issued at consular posts are typically valid for up to six months; however, there are circumstances and procedures by which these visas can be reissued. The current scheme allows for the reissuance of an immigrant visa that was unable to be used for reasons beyond the applicant's control and for which the applicant was not responsible, if reissued within the same fiscal year. In similar circumstances, but where the initial immigrant visa was issued in a prior fiscal year, DOS recaptures the visa number to the year it was issued and requires the applicant to reapply for a new visa and pay a new fee. This makes no sense, even though this policy is clearly aligned with the law. As a practical matter, requiring immigrant visa holders whose visas expired in FY2020 due to the pandemic to reapply for new immigrant visas will add to the consular burdens. To avoid the administrative burden of having to reissue those visas it would be prudent to include, among the Administration's COVID-relief priorities, a legislative provision that would extend, by operation of law, the validity of all immigrant visas issued on or after June 30, 2019, through June 30, 2022. This action will prevent unnecessary bureaucratic processing at consular posts and free up consular officers to focus on eliminating the immigrant visa backlog and resuming routine nonimmigrant visa processing.

Recapture and avoid the loss of unallocated visas.

Given the magnitude of the IV backlog and continued procedural hurdles, it is unlikely that DOS will be able to process all available IVs before the end of FY2021. As such, it is likely that hundreds of thousands of IVs may be permanently lost, even though many individuals have been waiting years for an IV. In FY2020, over 100,000 family-based and diversity preference category visas went unused. It is imperative that DOS administratively recapture those lost visas. Moreover, looking forward, DOS must take active steps to ensure that all visa numbers available for FY2021 are fully allocated and do not get wasted simply due to processing delays. Congress should also take action to recapture those visas unused during the pandemic in addition to the approximately 200,000 visas lost years past. Finally, Congress should enact a statutory fix to ensure that unused visas are properly reallocated moving forward to realize its intent that all available IVs are properly allocated.

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DOS Authorizes Consular Officers to
Waive Interviews for Certain Nonimmigrants

On December 23, the State Department authorized consular officers to waive the in-person interview requirement, through the end of 2022, for those applying for H-1, H-3, H-4, L, O, P, and Q visas. Such applicants must meet certain conditions: possess a petition approved by USCIS, apply for the visa in their country of nationality or residence, and have never been refused a visa unless the refusal was overcome or waived. Applicants also must have no apparent or potential ineligibility. First- time applications who have traveled to the U.S. on ESTA are also eligible for the interview waiver. J, F, and M nonimmigrants are also eligible. Applicants are encouraged to check the website of the relevant U.S. embassy or consulate to confirm the level of services currently offered and to find guidelines for applying for a visa without an interview.

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USCIS Temporarily Waiving 60-Day Rule for
Report of Medical Exam and Vaccination Record

In response to the processing delays caused by the COVID-19 pandemic, the USCIS announced that it is temporarily waiving the requirement that civil surgeons sign Form I-693 (Report of Medical Examination and Vaccination Record) no more than 60 days before an application seeking an immigration benefit is submitted. This policy change will be in effect until September 30, 2022, for those applications that have not yet been adjudicated.

Since the USCIS office closures in 2020, applicants have experienced extreme processing delays. USCIS has recognized that these delays are beyond an applicant's control. Therefore, the new policy change will allow applicants to submit their applications with a completed Form I-693 regardless of whether the civil surgeon signed the medical exam more than 60 days before. These applicants will not need to provide another medical examination as long as the completed Form I-693 is accurate.

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Employment Authorization

USCIS Updates EAD Policies for Certain
H, E, & L Nonimmigrant Dependent Spouses

In early November, the USCIS announced new policies regarding employment authorization for certain H, E, and L nonimmigrant dependent spouses. First, these individuals are granted automatic extensions to their work authorization. Second, E and L spouses are granted work authorization "incident to status." In other words, these individuals will not be required to apply for an Employment Authorization Document (EAD) through USCIS and will automatically be issued I-94 records that permit employment incident to their statuses. Such I-94 records, however, need to be implemented.

The new policies are a positive change for H, E, and L nonimmigrant dependent spouses.

Automatic Extensions of EADs
for H-4, L-2, and E Spouses

The new policies allow H-4, E, and L dependent spouses to qualify for automatic extension of their existing EAD if they properly filed an I-765 application to renew their H-4, E, or L-based EAD prior to its expiration, and the H-4, L-2, or E-2 spouse have an unexpired I-94 showing a valid nonimmigrant status. The EAD will be automatically extended until the I-94 expiration date, approval/denial of the I-765 renewal application, or 180 days from the date of the expiration of the previous EAD — whichever occurs earlier.

Notably, the automatic extension of the EAD for H-4, L-2, and E spouses will only apply to those who have an I-94 document indicating valid underlying H-4, L-2, or E status after the EAD expires. As a result, spouses with expired statuses and a pending I-539 to extend their H-4, L-2, or E status with USCIS cannot benefit from the automatic EAD extension.

L-2 and E Spouses Will Be
Employment Authorized Incident to Status

The new policies consider L-2 and E-2 dependent spouses to be employment authorized "incident to status." The old policies required L-2 spouses and certain H-4 spouses to apply for and obtain EAD cards to lawfully work in the United States. Given the increase in processing delays in recent years, many L-2 or E-2 spouses experienced long gaps in work authorization while they waited for their work-permit applications to be adjudicated. Under the new rule, a valid admission to the United States as a L-2 or E-2 dependent spouse will allow such spouses to be automatically work authorized without having to affirmatively apply for an EAD. Paradoxically, however, these dependents are temporarily blocked from being considered "work authorized incident to status" for lack of a sufficiently annotated Form I-94.

During the four-month period while DHS develops an administrative solution for annotating Forms I-94 for L-2 and E dependent spouses, these individuals will continue to need an EAD to begin or continue employment. Furthermore, the new USCIS policy confirms that, while L-2 and E dependent spouses will no longer be required to obtain an EAD, they may apply for one if desired.

This specific rule applies only to L-2 and E spouses — H-4 spouses, or H-4, L-2, or E dependent children are not included.

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African-Country COVID-19
Travel Ban to Be Lifted December 31

President Biden issued another travel ban Proclamation on November 26, to be lifted on December 31. The ban suspending and limiting the entry of certain immigrants and nonimmigrants who were physically present in countries where the new COVID-19 variant, omicron, has been detected. Individuals who were physically present in Botswana, Eswatini, Lesotho, Malawi, Mozambique, Namibia, South Africa, and Zimbabwe 14 days prior to their date of intended arrival to the United States are suspended from entering the United States until the end of the month.

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NEWS IN BRIEF

H-1B FY2023 Season: Time to Start Process Well in Advance of March 2022 Registration Deadline: Employers who seek to register their employees for the FY2022 H-1B lottery are encouraged to gather necessary documents now to avoid any delays in registering and processing your paperwork.

Extension of Travel for U.S. Citizens with Expired Passports: CBP has announced that permission to use expired U.S. passports to return to the U.S. has been extended to March 31, 2022. Expired passports cannot be used to travel from the U.S. to an international destination or to travel to a foreign country for any length of stay longer than an airport connection en route to the United States or to a U.S. territory.

USCIS Withdraws Salary-Based H-1B Selection Regulation: In October 2020, USCIS promulgated a proposed rule that would have modified the H-1B cap selection process by replacing the random selection process with a wage-level-based selection process. This proposal has been withdrawn.

ICE Officers to Pilot Body Cameras: DHS announced that ICE law enforcement officers in select cities will begin wearing body worn cameras for pre-planned operations. The body-worn camera will be mounted on an officer's or agent's outerwear. Footage may be used to assess police conduct and for noninvestigative purposes.

DHS Suspends Certain Work Restrictions for Hong Kong F-1 Students: DHS notice suspending certain regulatory requirements for F-1 nonimmigrant students who are Hong Kong residents (regardless of country of birth) and who are experiencing severe economic hardship.

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