Legal Blogs and Updates

Department of State Posts a Disappointing July 2023 Visa Bulletin

The July 2023 Visa Bulletin posted by the Department of State (DOS) includes backlogs in the Employment-Based Preference Categories (EB-1, EB-2, and EB-3).  For Indian nationals in EB-3 category, the July Visa Bulletin included a significant backslide, retrogressing from June 15, 2012 (in the June Visa Bulletin) to January 1, 2009.  EB-3 for the rest of the world retrogressed from June 1, 2022 (in the June Visa Bulletin) to February 1, 2022.  The EB-1 backlog applicable to Indian and Chinese national has not budged, hanging on to a February 1, 2022, priority date for months.

Contact us with questions related to backlogs in the Employment-Based Preference Categories.

Updates to the Foreign Affairs Manual Relating to E Visas May Change the Treatment of Spouses and Children and Result in Expiration Dates Different from Principal Applicant

On May 1, 2023, the Department of State (DOS) updated provisions of the Foreign Affairs Manual (FAM) relating to the derivative spouses and children of E visa applicants.  The updated language distinguishes between the treatment of derivatives from E Treaty countries and those from non-Treaty countries, instructing the consular officers to apply reciprocity standards applicable to the nationality of the specific spouse or child (rather than the standards applicable to the principal applicant).  If no treaty exists, the reciprocity schedule of principal will apply.  Below are examples of how the policy would work:

• A UK principal with a UK spouse would both get 60 months.
• A UK principal with a Brazilian spouse will both get 60 months since the spouse is not a national of a treaty country.
• A UK principal with a French spouse, the principal would get 60 months, but the spouse would get 25 months as a national of a treaty country with a shorter validity period than the principal.
• A UK E-1 principal with an Israeli spouse, the principal would get 60 months, but the spouse would get 52 months as a citizen of a treaty country with a shorter validity period than the principal.
• A UK E-2 principal with an Israeli spouse, the principal would get 60 months, but the spouse would get 24 months as a citizen of a treaty country with a shorter validity period than the principal.
• An Australian E-3 with a Nigerian spouse; they both get 24 months because Australia is the only country with an E-3 treaty.

The FAM notes that the spouse and/or children of principal who are nationals of countries with an E treaty agreement are issued visas valid for the maximum validity authorized by the reciprocity schedule of their nationality OR for the length of the principal’s visa, whichever is shorter. For example, if the Israeli E-2 principal would get 24 months, their UK spouse and/or children would receive the same, not the 60 months available to UK nationals.

This change is significant given that the FAM previously stated that the spouse and children of an E visa applicant would receive the same visa validity and number of entries as the principal applicant. This could create situations requiring extra monitoring because a spouse’s or child’s status could expire earlier than the principal applicant.

Contact us with questions about E visas for principal applicants and their derivative family members.

Expansion of Premium Processing to Include Applicants Seeking to Change to F, M, or J Nonimmigrant Status

In June 2023, USCIS expanded Premium Processing for applicants filing Form I-539, Application to Extend/Change Nonimmigrant Status and seeking to change status to F-1, F-2, M-1, M-2, J-1, or J-2 nonimmigrant status.  The premium processing will occur in phases, and nonimmigrants requesting premium processing should not file before these dates:

• Beginning June 13, USCIS began to accept Form I-907 requests, filed via paper form or online, for applicants seeking a change of status to F-1, F-2, M-1, M-2, J-1, or J-2 status, who have a pending Form I-539, Application to Extend/Change Nonimmigrant Status.
• Beginning June 26, USCIS will accept Form I-907 requests, filed either via paper form or online, for applicants seeking a change of status to F-1, F-2, M-1, M-2, J-1, or J-2 status, when filed together with Form I-539.

Premium processing service is available for change of status requests only; it is not available for individuals seeking an extension of stay in M-1 or M-2 status.

USCIS will reject premium processing requests received before the dates listed above.

Contact us if you have questions about eligibility for Premium Processing.

Certain Nonimmigrants May Be Eligible for an Employment Authorization Document Based on Compelling Circumstances

Nonimmigrants with an approved I-140 petition in the employment-based 1^st, 2^nd, or 3^rd preference categories, who cannot apply for an adjustment of status because their priority dates are not current, may be eligible for an Employment Authorization Document (EAD) if they can demonstrate “compelling circumstances.” 

To be eligible, the individual must be in the United States in E-3, H-1B, H-1B1, O-1, or L-1 nonimmigrant status, including in any applicable grace period, on the date the application for employment authorization (Form I-765) is filed.  The validity period for an EAD based on compelling circumstances is one year and can be renewed in one-year increments.

Compelling circumstances are generally situations outside a worker’s control that would justify the government exercising discretion to grant employment authorization, on a case-by-case basis, given the totality of the circumstances.  While United States Citizenship and Immigration Services (USCIS) has not defined compelling circumstances, it has provided examples, including a serious illness or disability faced by the worker or a dependent that would necessitate a move to a new geographic area; and significant disruption to the employer (beyond the long wait time for an immigrant visa).

However, requesting an EAD based on compelling circumstances is risky.  While individuals eligible for a compelling-circumstances EAD must have lawful nonimmigrant status when they apply, such individuals will generally lose that status once they engage in employment pursuant to the EAD. While such a foreign national will no longer be maintaining nonimmigrant status (and therefore will not be eligible to adjust status), he or she will generally not accrue unlawful presence during the validity period of the EAD or during the pendency of a timely filed and non-frivolous application.

USCIS indicates in its final rule that it “intends to adjust its policy guidance to confirm that holders of compelling circumstances EADs will be considered to be in a period of authorized stay,” but it has yet to do so.

Contact us with questions about EADs based on compelling circumstances.

Department of Homeland Security to End COVID-19 Flexibility Applicable to In-Person Form I-9 Inspection Requirement

During the COVID-19 pandemic, employers were permitted to inspect I-9 documents remotely.  That flexibility will end on July 31, 2023, and employees whose documents were inspected remotely must complete in-person physical documentation inspections by August 30, 2023.

Employers may choose to designate an authorized representative to complete Forms I-9 and conduct an in-person physical document inspection on their behalf. 

Contact us with questions about this option.

Department of State Implements Increased Fees for Consular Services

On June 17, 2023, after approximately a two-week delay, a final rule went into effect raising most nonimmigrant visa application processing fees and the fee for a Border Crossing Card for Mexican citizens who are 15 and older.  The new fees include:

• Non-petition-based NIVs ((B, C, D, F, I, J, M, TN/TD, S, T, U) will be raised from $160 to $185.
• H, L, O, P, Q, and R category NIVs will be raised from $190 to $205.
• E category NIVs will be raised from $205 to $315.
• Border Crossing Cards for Mexican citizens who are 15 and older will be raised from $160 to $185.

Contact us with questions about the new fees.

Certain Afghan and Ukrainian Parolees Are Employment-Authorized Incident to Parole

United States Citizenship and Immigration Services (USCIS) issued updated guidance, effective June 8, 2023, to clarify that parolees considered employment-authorized incident to parole include the following:

• Afghan parolees whose unexpired Form I-94 contains a class of admission of “OAR” or “PAR” and indicates Afghanistan as the country of citizenship on the document;
• Ukrainian parolees whose unexpired Form I-94 contains a class of admission of “UHP;” and
• Ukrainian parolees whose unexpired Form I-94 contains a class of admission of “DT” issued between Feb. 24, 2022, and Sept. 30, 2023, and indicates Ukraine as the country of citizenship on the document.

These parolees may present to their employers an unexpired Form I-94 to prove their identities and employment authorization for the purposes of Form I-9. This satisfies the Form I-9 requirement for up to 90 days from the date of hire (or, in the case of reverification, the date employment authorization expires). After 90 days (or when the Form I-94 expires, if sooner), parolees must present an unexpired EAD or unrestricted Social Security card and an acceptable List B identity document from the Form I-9 Lists of Acceptable Documents (such as a state-issued driver’s license or identification card).

Ukrainian and Afghan parolees must still file Form I-765 to receive a physical EAD.

Contact us with questions about work authorization.

Temporary Protected Status Designations for Four Countries are Extended

On June 13, 2023, the Department of Homeland Security (DHS) announced the rescission of the Trump Administration’s terminations of Temporary Protected Status (TPS) designations for El Salvador, Honduras, Nepal, and Nicaragua.  TPS for these countries has been extended by 18 months, beginning on September 10, 2023, and ending on March 9, 2025.  This extension allows existing TPS beneficiaries to retain TPS through March 9, 2025, so long as they otherwise continue to meet the eligibility requirements for TPS.

Contact us with questions about TPS.