Immigration News

The United States Citizenship and Immigration Services (USCIS) recently issued a temporary order to increase the automatic extension period for certain Employment Authorization Document (EAD) renewal applications.  Please see below for an explanation of what this means, how it works, when the extension goes into effect, and why the government chose to automatically extend certain EAD renewal applications.   What is the automatic extension and how does it work? This automatic extension allows the 180-day extension given to eligible EAD renewal applications to be a 540-day extension. This means that a person with an eligible EAD renewal application (Form I-765) can now continue to work for their employer for 540 days after the expiration of their EAD.   The extension is automatic so long as you filed within the same category under which you received your initial EAD and filed for renewal prior to the date of expiration on your current EAD. You do not have to do anything to receive this benefit other than fall within an eligible category and to have an EAD renewal pending. You will not receive any updated receipt notice, but the date on your previously received notice will suffice as proof of qualification.   To summarize, you must meet all three requirements below to qualify for the 540-day automatic extension: You must have filed the EAD renewal application before the expiration of your current EAD; You must be applying for the renewal in the same category as your current EAD, or renewing EAD based on Temporary Protected Status; and You must be applying under a qualifying work authorization category, which includes: Adjustment of status applicants (C09); E-1, E-2, and E-3 spouses with an unexpired I-94 (A17); L-2 spouses with an unexpired I-94 (A18); H-4 spouses with an unexpired I-94 (C26); Temporary Protected Status (A12 or C19); Refugees and asylees (A3 and A5); Asylum applicants (C08); and Approved applicants under Violence Against Women Act (VAWA) (A31).   Note that F-1 STEM OPT EAD extensions are NOT eligible for this 540-day automatic extension.   When will the automatic extension go into effect? The 540-day automatic extension will apply to eligible EAD renewal applications that are filed and pending on May 4, 2022, plus EAD renewal applications filed between May 4, 2022 and October 26, 2023.   Why did the U.S. Government do this? The U.S. government rolled out this extension for two reasons: First, to mitigate the gap in work authorization that foreign nationals who are waiting for EAD renewal applications are experiencing; and second, to help U.S. employers maintain stability in their workforces. Simply put, EAD renewal applications are taking too long to process, and USCIS is trying to mitigate the harm this is causing to foreign nationals and employers.

Background The Visa Bulletin is issued every month by the Department of State. It shows which green card applications can be filed, and which filed applications are ready for green card issuance. Retrogression happens when there is an increase in demand, and the government must create a “cut-off” date for which green card applications can be filed and which green cards can be issued. If you have a pending green card application but your priority date (i.e. your place in line) has retrogressed, this means that your green card cannot be issued yet. During retrogression, you will still receive your EAD/AP and you can legally remain in the U.S. as an “AOS applicant”. Q: I have my EAD but my priority date has retrogressed. Can I delay starting work until my priority date becomes current again, or until I receive my green card? No, we do not allow clients to delay their start date. You have an I-140 approval and green card based EAD, and you must start work using the EAD. Your sponsor is facing a chronic labor shortage and needs you to start work as soon as possible. Failure to timely start working for your sponsor could result in your sponsor withdrawing their sponsoring of your EB-3 petition, which will impact your pending green card application. In addition, USCIS can inquire whether you have the intent to work the unskilled job before they issue your green card. This inquiry can happen during a 485 interview or during a random visit from the USCIS immigration officer at your worksite or home. The best evidence you can provide of your intent is proof that you have already started working in the unskilled role. Q: I am currently on F-1. My I-140 is approved and my I-485 is pending. Can I wait until I receive my green card to drop my F-1 status and start working for my sponsor?  ‍ No, we do not allow clients to delay their start date. You have an I-140 approval and green card based EAD, and you must start work using the EAD. The pending I-485 grants you a period of authorized stay in the U.S. (as an “AOS Applicant”) while your I-485 is pending. Because your I-140 is already approved, and I-485 is receipted and pending, our attorney has advised that you are allowed to drop the F-1 status and start working for your sponsor. Your sponsor is facing a chronic labor shortage and needs you to start work as soon as possible. Failure to timely start working for your sponsor could result in your sponsor withdrawing your sponsoring of your EB-3 petition which will impact your pending green card application. ‍ Q: What if I start working for my sponsor using my EAD, but my green card application is later denied? ‍ If you have an approved I-140, unless you have an inadmissibility concern (such as status violations or criminal record), most likely there will not be issues with the I-485 application. If there were risks with your I-485 application, this would have been flagged to you by your attorney before I-485 was filed. In the extremely rare event that your I-485 is denied, you will then need to depart the U.S. for Consular processing. Because the risk of I-485 is rare – and any risk should have been flagged to you by your attorney at the I-485 filing stage – we require clients to start working for their sponsors once their I-140 is approved and EAD is issued. Your sponsor has a chronic labor shortage and needs you to start working as soon as possible.  ‍ Q: What if I start working for my employer on EAD but I still do not receive my green card after 1 year of work? ‍ If you work for your employer for 1 year on EAD and your green card is still pending, we recommend that you continue working for your sponsor to avoid issues with your pending green card application. USCIS may ask whether you have the intent to work the unskilled job to issue your green card, and the best evidence you can provide is proof that you are already working in the role. ‍Q. Could I switch sponsors after my 1 year of work if I still haven’t received my green card? ‍ We generally do not recommend switching employers while the I-485 is still pending. However, after you complete your 1 year with your sponsor, if your I-485 is still pending, you may be able to switch to a new position that is in a “same or similar occupation”. Please reach out to an immigration attorney for a legal evaluation and risk assessment after completing 1 year of work. If your attorney advises that you can switch to a different employer in a “same or similar occupation”, they will need to submit a Supplement J form to the government. Please note that this legal work is an additional fee, and it is not included in your contract with Alpha Global.

Introduction to Consular Processing What is a visa? You need a valid visa to enter the U.S. With Alpha Global Biz you will be applying for an employment-based, EB-3 unskilled immigrant visa. What is the difference between non-immigrant and immigrant visas? A non-immigrant visa (such as an F-1 student visa or B-2 tourist visa) is issued by a U.S. Consulate to a foreign national who only intends to stay in the U.S. temporarily, and who will leave the U.S. at the end of their temporary trip (such as study or tourism). An immigrant visa is issued by a U.S. Consulate to a foreign national who intends to live permanently in the U.S. and receive a green card. An EB-3 Unskilled visa is an employment-based, immigrant visa. Can I get my EB-3 Unskilled visa as soon as USCIS approves the I-140? It depends. If your priority date is current in the U.S. Visa Bulletin, NVC will notify you to complete the DS-260 and your EB-3 visa interview can be scheduled. If your priority date is not current, your visa interview cannot be scheduled yet and you must wait before you can receive your visa. Is premium processing available for the immigrant visa process?   No. The I-140 petition can be filed with premium processing with USCIS, but there is no premium processing for the NVC and Consular immigrant visa process. Visa Bulletin and impact to immigrant visa processing What is the U.S. Visa Bulletin? The Visa Bulletin is issued every month by the Department of State. It shows which green card applications can be filed, and which filed applications can move forward to green card issuance, based on when the LC was filed. The Visa Bulletin also lets you estimate how long it will take before you get your green card. What is a priority date, and why does it matter? The priority date is the date your Labor Certificate was filed. Think of the priority date as your place in line, because it determines when your green card application can be filed and when your green card can be issued. If your priority date is not current for green card filing on the Visa Bulletin (meaning that your priority date is after the cutoff date), the employer can file the I-140 petition, but you will not yet be able to file your actual green card application. What is retrogression? When the number of green card applications exceeds the expected number of filings, the Visa Bulletin may go into retrogression, or reflect cut-off dates for your priority date (your place in the green card line) that move backward. This happens as the government tries to balance the demand to stay within the visa cap for each category of visa. Immigrant visa process for your spouse and children Can my children obtain a green card? Applicants for green cards may include their unmarried children under the age of 21 on their green card applications. To decrease the risk of children “aging out” (i.e., turning 21 before approval of the green card), the U.S. government created the Child Status Protection Act (CSPA) which locks in the child’s age in what is known as the “CSPA age”. To qualify for CSPA: Your child must be unmarried; and The I-140 must be filed before your child turns 21. If the above qualifications are met, then the CSPA age is calculated by applying this formula: ‍ Age at time of visa availability – Pending time of I-140 = CSPA Age Let’s apply this formula to an example. Let’s say you have a child who is 20 years and 2 months old when your I-140 was filed. Your priority date did not become current under the “Dates for Filing” chart in the Visa Bulletin until 12 months after I-140 filing. This means that your child’s “age at time of visa availability” is 21 years and 2 months old. (20 years and 2 months + 12 months = 21 years and 2 months) Let’s also say that it took 5 months from I-140 filing to I-140 approval, meaning “pending time of I-140″ is 5 months. Now apply the CSPA formula: 21 years and 2 months – 5 months = CSPA age of 20 years and 9 months. This means that, in this example, your child has not aged out and would be eligible to apply for a green card. Immigrant visa interview What documents do I need to bring to my visa interview at the U.S. consulate? The list will include such documents as a valid passport, birth certificates, your I-140 approval notice, your DS-260 confirmation, and your sealed immigration medical exam. Do I need an immigration medical exam before my visa interview? Yes. Each consulate provides instructions and referrals to qualified immigration medical doctors in your country. You will need to bring proof of your vaccination history to the exam. Once the exam is complete, the doctor’s office will give you the exam report in a sealed envelope. You will bring that sealed envelope to your visa interview. After immigrant visa interview How long until I receive my immigrant visa after the interview? Consular procedures can differ by country. But, in general, the Consulate will issue a visa to be placed in your passport, either at the appointment or to be picked up a few days afterwards. The Consulate will give you a sealed envelope to present to CBP at the airport where you arrive in the U.S. What is administrative processing? When you attend your visa appointment at the U.S. Consulate, your visa request can either be approved, denied, or you can be issued administrative processing. Administrative processing means that the government needs additional time to review your background before issuing the visa. There could be a host of reasons why administrative processing is issued, ranging from your name matching the name of a person of interest, to you working on sensitive technology (ex: drone research). Also, administrative processing is relatively common and, on its own, does not mean that you will not receive the visa. Most

Immigration has long been a cornerstone of the U.S. economy, contributing significantly to job creation, innovation, and consumer demand. The U.S. economy relies on immigrants to fill essential labor market gaps, particularly as the nation grapples with demographic and economic challenges. Understanding the EB-3 Visa Quota The current structure of the U.S. immigration system, including the employment-based visa categories and their quotas, was established by the Immigration Act of 1990. This legislation introduced the employment-based visa preference categories that remain in use today, including the EB-3 category, which is designated for skilled workers, professionals, and unskilled workers. The Immigration Act set the overall annual limit for employment-based visas at 140,000, distributed across five preference categories (EB-1 through EB-5). Within this framework, the EB-3 unskilled category was allocated a maximum of 10,000 visas annually. This quota, which includes both principal applicants and their dependents, has been in place since the act’s implementation on October 1, 1991. The Impact of Including Dependents in the EB-3 Quota A critical issue with the EB-3 unskilled category is not just the limited number of available visas but also the fact that it is not exclusively reserved for principal applicants. The 10,000 annual visas must also account for the spouses and minor children of these workers. This means that when a worker receives an EB-3 visa, the visas for their dependents are included within the same 10,000 quota. This inclusion has several significant implications: · Fewer Visas for Principal Applicants: With dependents included in the quota, the actual number of visas available to new principal applicants is significantly lower. For example, if each principal applicant brings an average of two dependents, only about 3,333 workers could be granted visas annually under this quota. · Longer Waiting Times: The inclusion of dependents contributes to longer waiting periods and increases backlogs in the EB-3 category. As more dependents consume the quota, fewer visas are left for new applicants, leading to extended wait times. · Policy Considerations: Some experts suggest that removing dependents from the visa quota calculation could alleviate these backlogs. If dependents were exempt, the full 10,000 visas could be allocated solely to principal applicants, potentially reducing waiting times and making the system more efficient. Action and Advocacy Alpha Global Biz is the largest independent third-party provider of EB-3 employee sponsor consulting and case management services in the U.S., focuses on unskilled labor solutions for U.S. businesses. The current EB-3 visa quota of 10,000 annually, which includes both principal applicants and their dependents, is woefully insufficient. There is an urgent need to reassess and potentially expand the quota to better reflect the realities of the U.S. labor market and the demand for low-skilled labor. Alpha Global’s Government Relations Team is consistently advocating for policy changes that benefit the EB-3 Unskilled category. Our work includes: · Advocating for Transparency and Efficiency: We are pushing for increased transparency and processing improvements at the Department of Labor. Our main efforts at the DOL include urging Acting Secretary Su to direct the agency to fully utilize the existing technology and resources at maximum capacity to streamline case processing and achieve its full potential. · Visa Retrogression Strategy: Our team is calling for a less aggressive visa retrogression approach from the State Department to avoid bottlenecks that harm workers and employers. This strategy should ensure smoother, more predictable visa processing and methods for the public to forecast and better understand retrogression. · Congressional Lobbying for Visa Reforms: We continue lobbying Congress to enact meaningful immigration reforms, including visa recapture mechanisms for unused visas and increasing visa caps to better align with labor market needs. We’ve made progress in gaining bipartisan support for discussions on visa recapture, and we’re seeing a more open dialogue between stakeholders on addressing retrogression’s impact. Additionally, we collaborated with leaders in the House Committee on Education and the Workforce to submit Questions for the Record for Acting Secretary Su. DOL answered our inquiries on pages 16-19, specifically regarding the Department of Labor’s utilization of processing technology, advancing our efforts to better understand and propose solutions to assist the agency in processing. Alpha Global Biz will continue to advocate for the EB-3U program and helping our clients achieve the American Dream.