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The Biden Administration recently announced: “USCIS will increase the maximum validity period of initial and renewal Employment Authorization Documents (EADs) to 5 years for certain noncitizens, including … applicants for … adjustment of status. The increased validity period will reduce the frequency with which noncitizens must file for to renew their work authorization. This is anticipated to also reduce the associated workload and processing times, which will allow USCIS to concentrate efforts on initial work authorization caseload.” What does this announcement mean? This is great news! Increasing the validity of adjustment of status-based EADs to 5 years reduces the administrative burden of needing to file EAD extensions as frequently. This means less work for foreign nationals and immigration attorneys. Also, longer validity for adjustment of status-based EADs could result in a smaller workload for USCIS. This could potentially mean that USCIS will be able to review and approve EADs faster. When will this become effective? USCIS has announced that this is effective immediately. The policy change will apply to all adjustment of status-based EAD applications that are pending or filed September 27, 2023 or later. Does the 5-year validity extend to Advance Parole (AP)?‍ Yes. Advance Parole allows Foreign Nationals to travel internationally and re-enter the U.S. while their adjustment of status applications remain pending. USCIS is now issuing Advance Parole for a validity period of 5 years.

Dear Alpha Global Community, We understand that many of you have been closely watching the Visa Bulletin, and like us, you may have hoped for more forward movement in the EB-3 unskilled category for October 2024 due to the start of the new federal fiscal year. Unfortunately, this month’s bulletin did not bring the advancements we would have liked to see. The U.S. Department of State has cited high demand and visa exhaustion as key factors impacting the employment-based visa categories. This is why there has been no forward movement in the final action dates of the EB-3 Other Workers category for this month. While this may be discouraging, we want to reassure you that visa bulletin movement can be unpredictable, and there may still be opportunities for advancement in future months as evidenced by the forward movement we saw in dates for filing of employment-based visa applications. Even with the current retrogression, we remain confident that EB-3 unskilled is one of the best available paths to getting your green card. The demand for this category speaks to its value. We know the waiting can be difficult, but your dream of living and working in the U.S. is still within reach. We encourage you to stay positive and patient during this time. While these circumstances are beyond our direct control, we want to emphasize that this situation is not something we take lightly. At Alpha Global Biz, our Government Relations Department continues to actively advocate for improvements in the U.S. immigration system because we know how important this journey is for you and your families. If you have any questions or need more support, don’t hesitate to contact our team. We’re here to help any way that we can. Warm regards, Alpha Global Biz Team

Public Charge Update Last week, the Supreme Court announced that the Department of Homeland Security (DHS) can move forward with its final changes to the public charge ground of inadmissibility. The regulations are over 800 pages long and represent a vast expansion of the public charge ineligibility. SUMMARY/BOTTOM LINE: Do Not Panic. First, the rules do not go into effect until February 24, 2020 so anyone who used these services prior to that date or has a current application in the system is unaffected. Second, mere use of the benefits does not lead to an automatic denial. Instead, use of these programs is considered a “negative factor” in a long list of positive and negative factors to be analyzed by officers. Third, please do not read the newspapers or listen to the media on this. The people who write these stories have no, or limited background knowledge of immigration and their goal is always click bait and panic. NOTE: This rule has nothing to do with the requirement to have health insurance which is still currently blocked. What Is The Public Charge? “Likely at any time to become a public charge” is ground for USCIS officers domestically and Visa officers abroad to block entry of a visa applicant who they believe will use government benefits. The law is in the Immigration and Nationality Act § 212(a)(4). The law itself is hundreds of years old but after a 1999 regulation by USCIS, it has largely been dormant. Prior to the 1999 regulation, upwards of 15-20% of all immigrant petitions were rejected due to the public charge inadmissibility. Under the law, officers look at the ‘totality of the circumstances” – (your age, your income, your personal financial situation) to determine whether you are likely to come to the U.S. and use government benefits. Before the new regulation, prior use of three cash assistance programs – Supplemental Security Income (SSI), Temporary Assistance to Needy Families (TANF) (welfare), and state general relief or general assistance—as well as a Medicaid program that covers institutionalization for long-term car, were seen as the only “negative” factors in the “totality of the circumstances” test. What Are the Rules Now? The term “likely at any time to become a public charge” has been expanded and new positive and negative factors have been added to the “Totality of the circumstances” test. First, it is to be applied to those who are more likely than not to receive any of these benefits for more than 12 months in the aggregate within any 36-month period. Second, DHS has expanded the list of identified programs that can be considered when applying the public charge “totality of the circumstances” test. Use of non-emergency Medicaid; Supplemental Nutrition and Assistance Program (SNAP, formerly food stamps); Section 8 Housing Choice Voucher Program; Section 8 Project-Based Rental Assistance; and Public Housing AFTER February 24, 2020 will now be considered. Benefits received by the applicant’s U.S. citizens children or other family members are not considered in determining whether the applicant is likely to become a public charge. How Will the Officer Analyze My Situation? In determining public charge inadmissibility, the regulation shifts attention away from the petitioning sponsor’s income as reported on the affidavit of support and re-directs it to the five statutory factors: the applicant’s age, health, family status, assets/resources/financial status, and education/skills. Adjudicators will assign weight—negative and positive, as well as heavily negative and heavily positive—to these five factors to determine whether the applicant passes the public charge test. Are There New Forms? Yes, all adjustment of status applicants will need to be complete a declaration of self-sufficiency form and support it with documentary evidence called a Form I-944. The form will be filed with any I-485 application. When Does This Go Into Effect? The new public charge rule and procedure will affect I-485 applications filed or postmarked (or, if applicable, submitted electronically) on February 24, 2020. Applications and petitions already pending with USCIS on the effective date of the rule (postmarked and accepted by USCIS) will be adjudicated based on the current public charge standard. So for cases and people who used these services prior to February 24, 2020, it will have no effect. There is a chance though that people prior to February 24, 2020 may have to submit the I-944 form. Will This Effect Both Adjustment of Status and Consular Processing? Although the published rules refer to public charge inadmissibility adjudications by USCIS, the Department of State is expected to adopt these same standards to apply to those applying for immigrant and nonimmigrant visas abroad. In fact, the Department of State in several posts have already been using the public charge. So If Use One of These Government Programs, Will I Be Rejected as a Public Charge? Not necessarily. This is about the “Totality of the circumstances.” If you, for example, used Medicaid, that would count as a point against you BUT if you spoke English, only used it for a brief period, and have other evidence that you are “self-sufficient” those will be points in your favor to overcome your use of Medicaid. If you have a strong credit score, are authorized to work, and have strong savings, those will be points in your favor. Each case will be unique in how it is analyzed and our law firm partners will ensure that all applicants are well-prepared. I used Obamacare or had an emergency and received medical assistance. Does this count against me? No. The final rule does not include receipt or potential receipt of the following benefit programs: Emergency medical assistance Disaster relief National school lunch or school breakfast programs Foster care and adoption Head Start Child Health Insurance Program Earned Income Tax Credit or Child Tax Credit As time goes on and the program further develops, we’ll be able to provide more answers to more questions. In the meantime, we ask that you be patient.

There’s Nothing Fair About the High-Skilled Fairness Act ‍ On July 10, the House quietly passed H.R. 1044, the Fairness for High-Skilled Immigrants Act of 2019, a well-intentioned piece of bipartisan legislation aimed at resolving a legitimate problem: a decades-long backlog in the issuance of employment-based green cards for citizens of China and India. Backed by the Silicon Valley lobby, the bill proposes to lift the existing 7% per-country caps on green card issuance. While this may seem, at first blush, like a reasonable solution, the actual result of the legislation would be to create multi-year backlogs for nationals of other countries, limiting most employment-based immigration for several years primarily to nationals of India and China. This could, in effect, cripple our current employment-based immigration system and it would be done not by President Donald Trump or Stephen Miller, but by a bipartisan coalition of Republicans and Democrats. The Immigration and Nationality Act (INA) currently allows for 140,000 foreign nationals each year to permanently immigrate to the United States. These much-needed immigrants contribute to American society and often represent persons of extraordinary ability, outstanding professors and researchers, multinational managers or executives, people whose employment is in the “national interest,” skilled workers, and even unskilled workers to fill jobs. Given the unemployment rate in the United States and our aging population, America will need more of these foreign nationals, not less. However, the INA states that immigrants from any one country can claim no more than 7% of the 140,000 employment-based green cards each year, meaning that immigrants from larger countries such as India and China must wait decades longer to receive their green cards while immigrants from the rest of the world have no wait for visas. By one estimate, Indians applying for certain employment-based green cards would have to wait 150 years to receive their green card. Enter Silicon Valley Close to 71 percent of the workforce in Silicon Valley are immigrants, and the vast majority are Indian who come on the H-1B visa. These companies are understandably frustrated by the slow pace of green cards for Indian nationals. In response, big name companies such as Amazon, Intel, Hewlett-Packard, IBM, Microsoft, and business groups that all rely on Indian workers drafted this legislation that, they believe, will fix their problems in the short term but at the expense of everyone else. The bill also has unintended consequences for these companies’ own employees, such as the end of three-year H-1B extensions (triggered by the per country backlogs) under section 104(c) of the American Competitiveness in the 21st Century Act. Their bill does have a “do no harm” provision to protect everyone currently waiting for green cards and it will be phased in over a three-year period, but ultimately, Indian nationals who once only received 7% of employment based green cards will now receive the vast majority and American employers who are seeing critical shortages will pay the price. This law though would fit neatly into President Trump’s agenda which has included the Travel Ban, a proposed asylum ban, crippling our immigration courts, and increasing administrative and procedural backlogs against legal immigrants by ensuring that everyone would have an unreasonably long wait for green cards. According to Daniel Costa, director of Immigration Law and Policy Research at the Economic Policy Institute in Washington, D.C., the wait times for everyone—including Indians and Chinese—will even out to be a seven or eight year wait for employment visas. Most employers are not going to wait seven or eight years for an employee and will abandon these applicants. Jobs will remain unfilled, America will lose talent to Canada and Europe, and Stephen Miller and Trump will accomplish their goal of keeping immigrants out of the United States with the help of their unexpected allies—the Democrats. A Better Piece of Legislation There is a better way. The Believe Act, an alternative solution to the Chinese and Indian backlog, suggests that its sponsor, Sen. Rand Paul (R-Ky.), understands the unintended consequences of H.R. 1044. Paul’s solution, which involves increasing the number of green cards annually and a combination of measures from not counting spouses and children of the immigrant against the cap to providing transitional status and employment authorization to those in line for a green card, would solve the problem for Chinese and Indian workers without punishing workers from other countries. New legislation does not happen in a vacuum, and H.R. 1044 is an example of the chaos that can ensue when legislators, while guided by the best of intentions, are not sufficiently knowledgeable about the complexities of the INA, and how new legislation would interact with existing law and existing backlogs. We need immigrants in Silicon Valley and everywhere else in America and we need immigrants from all nations—large and small. Yet the support and drafting of this bill—which does not include increases in the current limitations—demonstrates our failure to deal holistically with our immigration issues. Appeasing one section of the country to the significant detriment of all others though is wrong, especially when better alternatives are before Congress.

How does the immigration plan affect non-immigrant visa holders, potential immigrants and “Dreamers? First, regarding the first provision of the outline dealing with border security, the White House is requesting $25 billion to build a “wall” and enhance border security. In reality, there are very few experts who believe the administration will build an actual wall. It is widely considered impossible to construct an actual physical wall along the entire length of the border considering the terrain is too difficult along many areas of the border. In any event, if the administration receives $25 billion to enhance border security, it is safe to assume that crossing the border into the United States legally or illegally will become much harder. Second, regarding the second provision of the outline dealing with DACA legalization, the President introduced two new concepts to the DACA debate: 1) the White House is not only offering to legalize the status of DACA recipients, but he is also offering to provide them with a path to Citizenship; and 2) his outline includes DACA eligible immigrants, which could be over a million more immigrants than those who have registered under DACA. What makes an immigrant eligible for DACA is that the immigrant entered into the US illegally when they were a minor. This provision for DACA eligible immigrants opens the door to significant fraud, as there is no way the government can know when an illegal immigrant entered the country, unless they are illegal because they overstayed their visas. Third, regarding the third provision of the outline dealing with protecting the nuclear family, the President intends to limit family sponsored immigration to sponsorships of immediate spouses and minors. This will dramatically reduce the number of eligible petitions, essentially limiting family-based sponsorships to spouses, as very few people have legally migrated to the US and left behind their children. Essentially, typical family based petitioners will need to find an employment based sponsorship or otherwise not be eligible for any other immigrant petition. The provision also proposes to eliminate the backlog for family sponsored visas. This would be a very positive as the backlog has grown due to slower processing which seems to have started at the beginning of this administration’s term in office. Fourth, regarding the fourth provision of the outline dealing with the visa lottery, the President intends to eliminate the visa lottery and use the lottery’s allocation of visa to further reduce the family-based sponsorship visa processing backlog. This provision would force immigrants relying on the visa lottery to pursue an alternative legal approach to immigration, which would be either Family Based (not likely if the changes above are approved) on or Employment Based sponsorship. It would also reduce the backlog for family-based sponsorship visas.

We have been hopeful for what President Biden may do for immigrants as the new President of the United States. Last week, an immigration reform bill entered Congress. If this bill is passed, it would be a great win for immigration in the United States and the EB-3 Unskilled (Other Workers) Visa program in particular. Here are some highlights from the bill: Section 3101—Recapture of immigrant visas lost to bureaucratic delay. This section would recapture unused employment-based green card numbers from fiscal years 1992 to 2020 and would increase the number of green card immigrant visas issued per fiscal year from 140,000 to 170,000. This would mean visa retrogression wouldn’t happen again for a very long time. Section 3102—Reclassification of spouses and minor children of lawful permanent residents [LPRs] as immediate relatives. This section would reclassify spouses and minor children of LPRs—green card holders—as “immediate relatives,” meaning that immigrant visa numbers would be immediately available to complete the green card sponsorship process. This doubles the number of EB-3 available because spouses and children no longer count. Section 3104—Promoting family unity. This section would repeal the 3- and 10-year bars for noncitizens who depart the United States after accumulating 180 days or 1 year, respectively, of unlawful presence in the country. Many visa holders have unwittingly overstayed the duration of their admission to the United States only to learn that they could be subject to a bar to reentry to the United States if they depart the country. This provision would repeal this result. This would be open up a new market for those who were unauthorized. Section 3403—Eliminating per-country caps for employment-based immigrants. This provision would benefit individuals in some particular groups, such as Indian or Chinese nationals, who have been subject to lengthy wait times to receive green cards. Section 3404—Increased immigrant visas for other workers. This section would increase the number of immigrant visas in the employment-based third preference category of “other workers” from 10,000 to 40,000. Section 3405—Flexible adjustments to employment-based immigrant visa program. This section would authorize the secretary of homeland security, in consultation with the secretary of labor, to increase the EB-3 unskilled numbers during times of high employment. Section 3410—Visa extensions for individuals pursuing green cards. This provision would provide for additional extensions of nonimmigrant visa status in one-year increments to persons in F-1, H-1B, L, and O visa status, if their immigrant visa petitions or labor certifications have been pending for more than one year. This will help us with clients waiting for their LC to be approved.

When COVID19 struck, it lead to a complete shutdown of international borders and, in many ways, the entire immigration process. USCIS officers who manage adjustment of status cases and Consular Officers who manage consular processing cases abroad could not go into work leading to a significant backlog of cases. U.S. State Department embassies and consulates abroad have seen their visa interview backlogs grow from 75,000 at the start of 2020 to 473,000 by February of this year, Consular Affairs Acting Deputy Assistant Secretary for Visa Services Julie M. Stufft said at a briefing. The ballooning backlogs are a result of the Covid-19 pandemic and closures that were necessary to protect staff and the public, both in the U.S. and overseas, according to the agencies responsible for adjudicating applications and issuing documents. What the Biden administration is facing right now is figuring out how to deal with all of those after-effects of both COVID19 but also of President Trump’s push to slow down immigration. The State Department though is pushing for a re-opening of consular sections and USCIS is gradually moving but it will take time. New variants of COVID19, a slow vaccine rollout for most of the world, and loosening restrictions has led to a potential 4th COVID19 wave which will hamper the ability of USCIS or the State Department to immediately issue visas and deal with its backlog of cases.

On June 8, 2021, the U.S. Supreme Court ruled on whether individuals could use their Temporary Protected Status (TPS) to adjust status if they entered the country unlawfully. TPS is a temporary status given to eligible nationals of designated countries who are present in the United States. The status, afforded to nationals from some countries affected by armed conflict or natural disaster, allows persons to lie and work in the United States for limited times. Currently, persons from twelve countries – Haiti, El Salvador, Syria, Nepal, Honduras, Yemen, Somalia, Sudan, Nicaragua, Myanmar, South Sudan, and Venezuela – have temporary protected status. The right of those to adjust status has been unclear for many years. Different states and regions of the country had different rules. The Supreme Court therefore was forced to step in to resolve the conflicting legal issues. They ruled that so long as an individual entered the country via some legal status – such as with a student visa or a tourist visa – that they could adjust status. There are over 400,000 people from 12 countries with TPS status. This ruling further confirms and clarifies the ability of those on TPS to adjust status. The ruling may also force Congress to act more on TPS protections in the near future.

Why does USCIS constantly change their timelines and cause delays? USCIS’s timelines are constantly changing and foreign nationals across the board are seeing processing delays for various reasons. One of those reasons has been the sweeping changes as well as technical adjustments by the Trump Administration since 2017. The other has been the COVID19 pandemic which has crippled USCIS operations. The Trump Administration instituted more than 400 executive actions that affected visa processing and vetting. Under the Trump administration, I-140 and I-485 applications were halted and delayed because USCIS was directed to add additional vetting and other policies which significantly slowed processing. Leadership at both USCIS and the State Department encouraged adjudicating officers to issue blanket denials of cases, issue more requests for evidence, and to generally slow the immigration process. Other policies under the Trump administration included requiring repeated biometrics of children and spouses, requiring in-person interviews, and rejecting various applications contrary to regulations. COVID19 also impacted USCIS has they had to close their offices and work from home which led to inefficiencies and other issues. The Biden Administration has vowed to undo many of these policy changes but such action will take a significant amount of time. Rules require time to undo given the legal and constitutional constraints required by law. Therefore, USCIS’s timelines will likely continue fluctuating. Do These Same Issues Effect the Department of Labor (DOL)? The same issues in terms of processing times posted on the DOL website are the same as the USCIS website in terms of accuracy. Applicants can generally access processing times for DOL here. When accessing the link, the Department of Labor has a section titled “PERM PROCESSING TIMES”. This section is updated at random by the Department of Labor. The date that the chart was last updated is presented beside the title of the section. Within this section, there is a chart that presents the current processing queue. It presents which cases are under Analyst Review, which shows which cases are under initial review by the Department of Labor. It presents which cases are under Audit Review, which presents cases that were audited at the date displayed. Lastly, it presents which cases are being reviewed that are Reconsideration Request to the CO. Despite the information presented on this website, the dates reflected are not necessarily accurate. The dates are inaccurate at times because officers move at different speeds and are not legally obligated to follow the timelines that are outlined on the websites. The dates listed on the Department of Labor’s website should be used as a mere guideline due to this discrepancy. Finally, it’s important to note that the DOL process is an entirely employer-driven process. They are the ones that complete and file the labor certifications.

EAD Holders Need to Report to Work Immediately Immigration attorneys and clients across the United States in all visa categories are reporting a surge of USCIS and Consular interview notices with short time frames for the interview. Our clients and others are reporting interview notices requiring them to interview within a week or even a few days. Both Consular Affairs for the U.S. Department of State and USCIS have increased their staffing and are attempting to conduct as many interviews as possible because of their extensive backlogs of cases and also fear of any future variant that may disrupt their operations. For AOS Only: Many of these interview notices with only a week notice for the interview are requiring individuals to bring one to two months of pay stubs from their employer. Therefore, it is URGENT that if you have an EAD card that you should immediately report to work. USCIS can deny your I-485 application if they see that you have an EAD card and never reported to work on the grounds that they do not believe you will work in the job that sponsored you. Interview notices can be received at any time and if you go to your interview having had an EAD but did not go to work, that can be the basis of a denial. For Consular Only: Some of the interview notices require an interview before an applicant is able to complete their medical exam. Consular Affairs is well aware of the difficulties in obtaining a medical exam and should your interview occur before you can obtain a medical exam, Consular Affairs will place your case in administrative processing until you receive your medical exam results (which you will mail to the US Embassy or Consulate that interviewed you).