<![CDATA[Smal Immigration Law Office - Blog: USA Immigration Law Updates]]>Wed, 06 Nov 2024 10:50:29 -0600Weebly<![CDATA[In August 2024 USCIS Updated Policy Manual: F-1 Students OPT and STEM OPT Eligibility]]>Mon, 09 Sep 2024 18:15:12 GMThttps://law-visa-usa.com/blog-usa-immigration-law-updates/in-august-2024-uscis-updated-policy-manual-f-1-students-opt-and-stem-opt-eligibilityThe F-1 nonimmigrant visa status allows noncitizens to study in the United States at U.S. colleges and universities. F-1 students may be eligible for off-campus employment under the following programs: Curricular Practical Training; Optional Practical Training (OPT); and Science, Technology, Engineering, and Mathematics Optional Practical Training Extension (STEM OPT). General eligibility requirements for off-campus F-1 employment include that the training be related to the student’s area of study and be authorized by the Designated School Official and U.S. Citizenship and Immigration Services (USCIS). On August 27, 2024, USCIS updated its Policy Manual to clarify guidance for F-1 students concerning eligibility for post-completion OPT and the period during which F-1 students may apply for STEM OPT extensions.
F-1 students may be eligible for employment authorization under OPT prior to completing their course of study (pre-completion OPT) or after completing their course of study (post-completion OPT). Under post-completion OPT, an F-1 student may be eligible for up to 12 months of practical training (employment) at each level of education.
Specifically, the policy manual update confirms that F-1 students may be eligible for post-completion OPT after completion of an associate’s, bachelor’s, master’s, or doctoral degree program. The section of the policy manual on post-completion OPT eligibility for F-1 students indicates that the student must, “[h]ave completed a course of study or be in an associate’s, bachelor’s, master’s, or doctoral degree program and have completed all course requirements for the degree (excluding thesis or equivalent).” The policy manual also notes that for post-completion OPT, F-1 students may work as a volunteer or unpaid intern “as long as this practice does not violate any labor laws, and the employment is related to the program of study” and that F-1 students employed under post-completion OPT must work at least 20 hours per week.
An F-1 student who meets certain requirements may be eligible for an additional 24 months of employment authorization based on a STEM OPT extension. One requirement for STEM OPT extensions is that the F-1 student must have earned a bachelor’s, master’s, or doctorate degree in a field designated as a STEM field by the Department of Homeland Security. The USCIS updates to the policy manual correct the period during which students may apply for STEM OPT extensions and include other technical corrections. The STEM OPT Extension section for F-1 Practical Training in the policy manual includes the eligibility requirements for F-1 students to apply for STEM OPT extensions based on previously obtained STEM degrees as well as future STEM degrees. In terms of future STEM degrees, the policy manual indicates that if an F-1 student enrolls in a “new academic program and earns another qualifying STEM degree at a higher educational level, the student may be eligible for one additional 24-month STEM OPT extension, for a total of two lifetime STEM OPT extensions.” Therefore, if an F-1 student completes a STEM OPT extension based on a qualifying bachelor’s degree, the F-1 student may subsequently apply for an additional STEM OPT extension based on a qualifying master’s degree.
The updated guidance from USCIS further details eligibility requirements for OPT and STEM OPT for F-1 students and U.S. employers. The USCIS policy manual can also be used as guidance for employers in determining how F-1 students can maintain, extend, and potentially gain future eligibility for U.S. employment authorization under the OPT and STEM OPT programs.

USCIS Policy Manual.

]]><![CDATA[DHS Announces Expedited Asylum Processing at Canada-US Border to Deter Unauthorized Migrants]]>Sun, 25 Aug 2024 22:52:28 GMThttps://law-visa-usa.com/blog-usa-immigration-law-updates/dhs-announces-expedited-asylum-processing-at-canada-us-border-to-deter-unauthorized-migrantsDHS Announces Expedited Asylum Processing at Northern Border to Deter Unauthorized Migrants

The Department of Homeland Security (DHS) has announced measures to reduce unauthorized migration across the U.S. border with Canada:
  • Starting August 14, 2024, asylum officers conducting threshold screening interviews (TSI) for noncitizens who are processed pursuant to the U.S.-Canada Safe Third Country Agreement (STCA) are considering credible testimony, documents, and other reliable evidence available at the time of the TSI. Additional documentary evidence may not be submitted after the interview concludes, DHS announced, noting that “[a] lack of documentary evidence alone does not preclude noncitizens from establishing that they qualify for an exception to the STCA.”
  • Additionally, DHS has reduced the time period for noncitizens to consult with attorneys or representatives before their TSIs from 24 hours to “a minimum of four hours beginning at the time the noncitizen is provided an opportunity to consult with a person of the noncitizen’s choosing and continuing only during the hours of 7 a.m. and 7 p.m. local time.”
“DHS carefully reviewed its implementation of the Safe Third Country Agreement with Canada and concluded that it could streamline that process at the border without impacting noncitizens’ ability to have access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection,” the agency said. Migrants crossing the northern border without authorization and taken into U.S. custody increased from 2,200 in 2022 to a record 16, 500 so far in fiscal year 2024.

Read more at:]]><![CDATA[August 19 2024 NEW Parole In Place Process Online Form I-131F]]>Mon, 19 Aug 2024 15:02:50 GMThttps://law-visa-usa.com/blog-usa-immigration-law-updates/august-19-2024-new-parole-in-place-process-online-form-i-131fStarting Aug. 19, 2024, you may file Form I-131F, Application for Parole in Place for Certain Noncitizen Spouses and Stepchildren of U.S. Citizens, online with the applicable filing fee. There is no fee waiver available for Form I-131F.

Each requestor, including noncitizen stepchildren, must file a separate Form I-131F requesting parole in place, and each requestor must have their own USCIS online account. A parent or legal guardian may create an online account for their minor child if the purpose is to submit a form on behalf of the minor. If a parent or legal guardian is not available, a primary caregiver or legal assistance provider may also help a child create their own USCIS online account. Information on creating a USCIS online account is available on the How to Create a USCIS Online Account page.

UPDATE effective 08/26/2024:

Administrative Stay of Keeping Families Together - as of August 26, 2024, temporarily can't file a I-131F, application for Parole In Place.

On Aug. 26, 2024, the United States District Court for the Eastern District of Texas, in Texas v. Department of Homeland Security, issued an administrative stay, preventing the Department of Homeland Security (DHS) from granting parole in place under Keeping Families Together for 14 days.

To comply with the district court’s administrative stay, USCIS will, until further notice:

Not grant any pending parole in place requests under Keeping Families Together.

Continue to accept filings of Form I-131F, Application for Parole in Place for Certain Noncitizen Spouses and Stepchildren of U.S. Citizens.

Continue to schedule biometric appointments and capture biometrics at Application Support Centers (ASCs).

The district court’s administrative stay order does not affect any applications that were approved before the administrative stay order was issued at 6:46 p.m. Eastern Time on Aug. 26, 2024. Individuals granted parole in place under this process before the administrative stay order was issued may still file for any other immigration benefit for which they may be eligible, including employment authorization and adjustment of status to that of a lawful permanent resident.

Please note: You can only apply for employment authorization after your Form I-131F is approved. If you file your Form I-765, Application for Employment Authorization, before USCIS approves your Form I-131F request under this process, USCIS will reject or deny your Form I-765.

Biometric Appointments
USCIS continues to schedule biometric appointments consistent with the administrative stay order issued by the district court on Aug. 26, 2024. All individuals with biometric appointments should plan to appear at their appointment at the scheduled date, time, and ASC indicated on their notice. Individuals should not arrive on a different date, unless they have rescheduled their appointments. Individuals who were turned away at an ASC will have their appointment rescheduled by USCIS.

As a reminder, individuals must print their biometric appointment notice and bring it with them to their appointment. In addition, if individuals are unable to attend the appointment, they can reschedule using the online rescheduling request process, as long as rescheduling takes place before the initial appointment expires. For more information, see the Preparing for Your Biometric Services Appointment page.



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Who is eligible to apply for Parole in Place under this new program?

Q. What are the eligibility criteria for Keeping Families Together?
A. To be considered for this process as a noncitizen spouse of a U.S. citizen, you must:
  • Be present in the United States without admission or parole;
  • Have been continuously physically present in the United States since at least June 17, 2014, through the date of filing your request;
  • Have a legally valid marriage to a U.S. citizen on or before June 17, 2024;
  • Have no disqualifying criminal history and otherwise not deemed to be a threat to public safety, national security, or border security; and
  • Submit biometrics and undergo required background checks and national security and public safety vetting.
To be considered for this process as a noncitizen stepchild of a U.S. citizen, you must:
  • Have been under the age of 21 and unmarried on June 17, 2024;
  • Be present in the United States without admission or parole;
  • Have been continuously physically present in the United States since at least June 17, 2024, through the date of filing your request;
  • Have a noncitizen parent who entered into a legally valid marriage with a U.S. citizen on or before June 17, 2024, and before your 18th birthday;
  • Have no disqualifying criminal history and otherwise not deemed to be a threat to public safety, national security, or border security*; and
  • Submit biometrics and undergo required background checks and national security and public safety vetting.
*NOTE: Consistent with the Sept. 30, 2021, Guidelines for the Enforcement of Civil Immigration Law (PDF), a noncitizen who poses a threat to border security will be generally disqualified from receiving parole in place pursuant to this process. However, there is an exception for stepchildren who entered the United States unlawfully after Nov. 1, 2020, and who otherwise meet the criteria for parole in place under this process.
All such requests for parole in place are considered on a case-by-case basis for urgent humanitarian reasons or a significant public benefit, in the exercise of discretion, taking into account the totality of the circumstances of each individual request.


Application for Parole in Place must be filed only ONLINE using a new online form I-131F.
Application fee is $580 per person.
Approval is not guaranteed because it is a discretionary and decided on a case-by-case basis.
If approved, will be granted parole under 212(d)(5) for 3 years.
Under section 212(d)(5)(A) of the Immigration and Nationality Act (INA) to allow certain noncitizen “applicants for admission” to be present in the United States on a temporary, case-by-case basis for urgent humanitarian reasons or a significant public benefit.
If approved, can apply for adjustment of status (aka Green Card) if eligible.
If approved, can apply for a work permit under c(11).

Applying for Employment Authorization

After you are granted parole in place under Keeping Families Together, you may apply for discretionary employment authorization from USCIS. To apply for an Employment Authorization Document (EAD) as a parolee, you must submit Form I-765, Application for Employment Authorization, using the (c)(11) category code with either the required fee or a fee waiver request.
To file Form I-765 online, eligible applicants will access their USCIS online account at my.uscis.gov.

Leaving the United States
A grant of parole in place through Keeping Families Together does not authorize parole back into the United States if you decide to depart. If you depart the United States after being granted parole in place, your period of parole will automatically terminate. If you depart the United States without first obtaining an Advance Parole Document, you run a significant risk of not being able to return to the United States and you may also be ineligible for future immigration benefits.
CAUTION: Travel outside of the United States, even with advance parole, may have severe immigration-related consequences, including with respect to potential inadmissibility or execution of an outstanding order of removal. Parole into the United States is not guaranteed even if you have been granted advance parole prior to leaving the country. You are still subject to immigration inspection at a U.S. port of entry to determine whether you may be paroled into the United States and whether you are eligible for the immigration status you seek. For further information, see our Travel Documents page. Consultation with a qualified attorney or accredited representative is strongly advised prior to any travel outside of the United States.
Subsequent Filing of Form I-130 or Form I-360 Petition
A grant of parole in place does not establish eligibility for future immigration benefits, including an immigrant petition or lawful permanent resident status. To establish eligibility for lawful permanent resident status, the petitioning U.S. citizen spouse or parent of a parolee must file Form I-130, Petition for Alien Relative, or in the case of certain widow(er)s and their children, parolees must file Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant.
USCIS will determine eligibility for those petitions in a separate adjudication. For purposes of Form I-130 based on marriage, you must demonstrate that you entered into a bona fide marriage with the beneficiary, and for a Form I-130 for a stepchild, you must demonstrate a bona fide stepparent-stepchild relationship.
There are additional requirements for Form I-360 for certain widow(er)s and their children, including filing deadlines, residence requirements, and marital status requirements. A stepchild may remain eligible for an immigrant petition despite their parent’s marriage to a U.S. citizen being terminated through death of either parent or divorce, so long as a bona fide stepparent-stepchild relationship continues to exist following the death or divorce.
Subsequent Filing of Form I-485
A grant of parole in place does not by itself establish eligibility for adjustment of status to lawful permanent resident under INA section 245(a). A grant of parole in place satisfies the requirement under INA section 245(a) that the applicant has been inspected and paroled by an immigration officer.
However, it does not satisfy any other requirements for adjustment of status, including the requirement to have an approved immigrant petition with a visa immediately available and establishing that the noncitizen is not inadmissible under any applicable ground in INA section 212(a), 8 U.S.C. 1182(a).
If granted parole in place, the noncitizen would need a qualifying family member to file Form I-130 on their behalf, or file Form I-360 on their own behalf (if not previously filed; see above). The noncitizen would also need to file Form I-485, Application to Register Permanent Residence or Adjust Status, and possibly Form I-601, Application for Waiver of Grounds of Inadmissibility, if needed.

С сегодняшнего дня 19 августа 2024 открылась программа, о которой было объявлено в июне. Подача заявления на пароль возможна только онлайн: форма I-131F и госпошлина 580 на человека. Это не заявление на грин карту, а заявление на тип гуманитарного пароля для тех, кто въехал в США без визы. Если пароль утвердят, затем можно будет подавать на разрешение на работу и на грин карту.

Form I-131F guide is here.

Form I-131F.

Additional information.

Hope you find this information helpful!

If you need help, please email to schedule a consultation or use our online scheduler.



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]]><![CDATA[Humanitarian Parole Process Paused for Cubans, Haitians, Nicaraguans, and Venezuelans]]>Thu, 15 Aug 2024 04:51:21 GMThttps://law-visa-usa.com/blog-usa-immigration-law-updates/humanitarian-parole-process-paused-for-cubans-haitians-nicaraguans-and-venezuelansParole Process Paused for Cubans, Haitians, Nicaraguans, and Venezuelans

The Department of Homeland Security DHS has temporarily paused the issuance of advance travel authorizations (ATAs) for Cuban, Haitian, Nicaraguan, and Venezuelan beneficiaries while it reviews the supporter application process.

U.S. Citizenship and Immigration Services (USCIS) said it continues to accept Form I-134A, Online Request to be a Supporter and Declaration of Financial Support, but no requests will be confirmed until the review of the supporter application process is complete.

“Beneficiaries who have already received an ATA should check their myUSCIS account for updates before making travel arrangements and prior to travel. Individuals with a valid ATA are permitted to travel. ATA processing will restart as soon as possible once this thorough review concludes,” USCIS said.

The U.S. government may grant advance travel authorization to up to 30,000 noncitizens each month to seek parole on a case-by-case basis under the processes for Cubans, Haitians, Nicaraguans, and Venezuelans. Effective May 17, 2023, under the new review process, USCIS randomly selected about half of the monthly total of Forms I-134A, Online Request to be a Supporter and Declaration of Financial Support, regardless of filing date, from the entire pending workload to review. We will review the other half of the monthly total of Forms I-134A based on when the case was submitted under the first-in, first-out method, which prioritizes the oldest Forms I-134A for review. This is intended to maintain a meaningful and equitable opportunity for all beneficiaries of a Form I-134A to move forward through the process and seek advance travel authorization.

Eligible beneficiaries must:
  • Have a supporter in the United States;
  • Undergo and clear robust security vetting;
  • Meet other eligibility criteria; and
  • Warrant a favorable exercise of discretion.

USCIS posted here.

]]><![CDATA[If you have a I-485 Green Card pending and plan to travel abroad, you need an Advance Parole travel document]]>Sat, 03 Aug 2024 17:32:33 GMThttps://law-visa-usa.com/blog-usa-immigration-law-updates/if-you-have-a-i-485-green-card-pending-and-plan-to-travel-abroad-you-need-an-advance-parole-travel-documentThose who have filed an I-485 application adjustment of status must obtain advance parole before they travel outside the US while their I-485 application. Section 212(d)(5)(A) of the Immigration and Nationality Act (INA) authorizes the Secretary of Homeland Security, at his or her discretion, to “parole into the United States temporarily under such conditions as he [or she] may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission into the United States.” Travelling outside the US without advance parole will result in abandonment of the application. It may also result in a finding of inadmissibility at the port of entry.

Nonimmigrants who are in H-1B or L-1 status do not need to apply for advance parole and can return to the US on the underlying H-1B or L-1 visa in their passports. Those in H-1B or L nonimmigrant status who travel on advance parole may be paroled to resume in H-1B and L status under USCIS policy established in the USCIS so called Cronin memo. Nonimmigrants in valid V-1 or V-2/V-3 status or K-3/K-4 status who have an I-485 application pending also do not need advance parole.

It is thus important for the adjustment applicants to obtain advance parole BEFORE departing the US by filing Form I-131. The processing times for an advance parole can be very long and can vary from one USCIS service center to another. These processing times are published on https://egov.uscis.gov/processing-times/. They are not exact processing times as the USCIS qualifies them by stating that 80% of cases are completed within the published processing time. Hence, the processing time may take longer or shorter than the published processing time.

Advance parole can also be granted to one who has been paroled pursuant to INA 212(d)(5) or to one who has been granted deferred action under the Deferred Action for Childhood Arrivals (DACA). The instructions to From I-131 provides details under which travel permission is granted under various situations. It should also be noted that if an individual who has been unlawfully present and is subject to the 3 or 10 year bar upon departing the United States, leaving the US under advance parole is not considered a departure for triggering the 3 or 10 year bars under INA 212(a)(9)(B) pursuant to Matter of Arrabally and Yerrabelly.

Expedited Processing of Advance Parole:

The USCIS has published criteria at https://www.uscis.gov/forms/filing-guidance/expedite-requests to expedite the processing of a number of applications including the I-131 application for advance parole. These include
  • Severe financial loss to a company or person, provided that the need for urgent action is not the result of the petitioner’s or applicant’s failure to timely file the benefit request or to timely respond to any requests for evidence;
  • Emergencies or urgent humanitarian situations;
  • Nonprofit organization (as designated by the Internal Revenue Service (IRS)) whose request is in furtherance of the cultural or social interests of the United States;
  • Government interests, including cases identified by the government as urgent because they involve the public interest, public safety, national interest, or national security interests; and
  • Clear USCIS error.
The USCIS has included certain travel related requests under “emergencies or urgent humanitarian situations” as follows:

Expedited processing of a travel document may be warranted when there is an unexpected need to travel abroad, for example,  for a funeral. Expedited processing of a travel document may also be warranted when there is a pressing or critical need to travel outside the United States for a planned event, but processing times prevent USCIS from issuing the travel document by the planned date of departure. When there is a request to expedite processing of a travel document for a planned event, we will consider whether the applicant timely filed Form I-131 or timely responded to a request for evidence.

Unfortunately, a desire to travel solely for vacation generally does not meet the definition of a pressing or critical need to travel.

The best way to contact USCIS is by contacting the customer support number at 800-375-5283 once the I-131 receipt notice has been issued with the appropriate case number. There are other suggested ways too, set forth at https://www.uscis.gov/contactcenter in addition to calling the telephone number such as contacting USCIS’s chatbot, Emma. Submitting documents in support of the request in the USCIS online account is also required prior to contacting the USCIS.

Emergency Advance Parole:

An alternate way to request faster processing of advance parole is by requesting an emergency appointment if there is a pressing need to travel in less than 15 days. See https://www.uscis.gov/greencard/greencardprocesses/traveldocuments/emergencytravel for further details. The USCIS includes the following examples that qualify for emergency parole:
  • An applicant who has a pressing or critical need to travel to obtain medical treatment in a limited amount of time.
  • An applicant who has a pressing or critical need to travel due to the death or grave illness of a family member or close friend.
  • An applicant who timely applied for a travel document and requested expedited processing, but their case remains pending, and they now must travel within 15 days for a pressing or critical professional, academic, or personal commitment.
The emergency advance parole will be issued for only 30 days although the previously filed I-131 application will continue to process even if the emergency parole is granted for 30 days. The applicant must have gone through the biometrics procedure. Even if there is already a pending I-131 application that was previously filed, the requestor must submit a completed I-131 application during the appointment at the local USCIS office along with supporting documentation that is listed under the USCIS’s above mentioned expedited criteria.

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]]><![CDATA[How a Child Can Automatically Acquire USA Citizenship After Birth (INA 320)]]>Mon, 22 Jul 2024 15:56:03 GMThttps://law-visa-usa.com/blog-usa-immigration-law-updates/how-a-child-can-automatically-acquire-usa-citizenship-after-birth-ina-320USCIS Policy Manual Chapter 4 was recently updated: Automatic Acquisition of Citizenship after Birth (INA 320).

In July 2024, USCIS updated their Policy Manual, and published this Memorandum.

PA-2024-21: Children’s Acquisition of Citizenship Provisions

• Affirms that applicants who already filed an application for a Certificate of Citizenship and were
denied, but became eligible following a change in USCIS policy, may file a motion to reopen the
prior USCIS denial of their application.
• Clarifies that a U.S. citizen parent may meet the requirement of physical presence in the United
States (or outlying possession) before the child’s birth regardless of immigration status.
• Clarifies that in cases where a child is born out of wedlock to two U.S. citizen parents and cannot
acquire U.S. citizenship from the father, the mother meets the requirement by demonstrating 1
year of continuous physical presence in the United States or one of its outlying possessions
before the child’s birth.
• Affirms that, for purposes of acquiring citizenship at birth, USCIS requires that a parent must be
recognized as a legal parent of the child by the relevant jurisdiction at the time of the child’s
birth.
• Clarifies that a child acquires citizenship under statutes requiring all conditions to be met while
the child is under 18 years of age if the last condition was satisfied on the day of the child’s 18th
birthday. Similarly, a child is eligible to obtain citizenship under INA 322 if USCIS approves the
application and the child takes the oath (if required) on the day of the child’s 18th birthday.
• Confirms that USCIS accepts a valid and unexpired U.S. passport or a Consular Report of Birth
Abroad (CRBA) as evidence of U.S. citizenship. However, USCIS also determines whether the
applicant properly acquired U.S. citizenship and if necessary, may request that DOS revoke the
U.S. passport or cancel the CRBA before USCIS adjudicates an application for a Certificate of
Citizenship.
• Clarifies processes when USCIS, in addition to applicant’s claim of U.S. citizenship, adjudicates
claims to U.S. citizenship for applicant’s parents or grandparents (sometimes called “nested
claims of U.S. citizenship”). When adjudicating applications for a Certificate of Citizenship, if an
applicant’s parent or parents’ U.S. citizenship is unknown or unclear, the officer must determine
the applicant’s parents’ (and, if necessary, grandparents’) U.S. citizenship status before
adjudicating the applicant’s citizenship claim.
• Clarifies that for purposes of an application for naturalization filed under the provision for
children of a U.S. citizen who subjected them to battery or extreme cruelty, a stepchild’s
relationship with the U.S. citizen stepparent does not need to continue to exist at the time of the
application for naturalization.
• Adds new guidance on how to calculate physical presence in U.S. territorial waters and
provides several updates to Nationality Charts 1, 2, 3, and 4.

Please remember that a child MUST meet all the requirements to automatically become a US citizen.

Please remember that a form N-600 can be only filed ONCE.

Please remember that if a US passport or CRBA (Consular Report of Birth Abroad) was issued by the Department of State4, it can be revoked if later applied for a N-600, and it was denied.

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A. General Requirements: Child Automatically Acquiring Citizenship after Birth[1]The Child Citizenship Act of 2000 (CCA) amended INA 320 and removed INA 321 to create only one statutory provision and method for children in the United States to automatically acquire citizenship after birth. According to INA 320, a child born outside of the United States automatically becomes a U.S. citizen when all of the following conditions have been met on or after February 27, 2001:[2]
  • The person is a child[3] of a parent who is a U.S. citizen by birth or through naturalization (including an adoptive parent);[4]
  • The child is under 18 years of age;[5]
  • The child is a lawful permanent resident (LPR);[6] and
  • The child is residing[7] in the United States in the legal and physical custody of the U.S. citizen parent.[8]
B. Legal and Physical Custody of U.S. Citizen ParentLegal custody refers to the responsibility for and authority over a child. For purposes of this provision, USCIS presumes that a U.S. citizen parent has legal custody of a child and recognizes that the parent has lawful authority over the child, absent evidence to the contrary, in all of the following scenarios:[9]
  • A biological child who currently resides with both biological parents who are married to each other, living in marital union, and not separated;
  • A biological child who currently resides with a surviving biological parent, if the other parent is deceased;
  • A biological child born out of wedlock who has been legitimated and currently resides with the parent;
  • An adopted child with a final adoption decree who currently resides with the adoptive U.S. citizen parent;[10]
  • A child of divorced or legally separated parents where a court of law or other appropriate government entity has awarded primary care, control, and maintenance of the child to a parent under the laws of the state or country of residence.
USCIS considers a U.S. citizen parent who has been awarded “joint custody” to have legal custody of a child. There may be other factual circumstances under which USCIS may find the U.S. citizen parent to have legal custody to be determined on a case-by-case basis.
C. Children of Armed Forces Members or U.S. Government Employees (or their Spouses)[11]On March 26, 2020, the Citizenship for Children of Military Members and Civil Servants Act was enacted into law.[12] This Act provides that, under certain conditions, children of U.S. armed forces members or U.S. government employees (or their spouses)[13] who are residing outside the United States acquire citizenship under INA 320.[14] This applies to such children who were under the age of 18 on that date.[15] 
A child born outside of the United States acquires automatic citizenship under INA 320 in cases where the child is an LPR and is in the legal and physical custody of his or her U.S. citizen parent who is:[16]
  • Stationed and residing outside of the United States as a member of the U.S. armed forces;[17]
  • Stationed and residing outside of the United States as an employee of the U.S. government;[18] or
  • The spouse residing outside the United States in marital union[19] with a U.S. armed forces member or U.S. government employee who is stationed outside of the United States.[20]
In cases involving the child of a U.S. armed forces member residing outside the United States, the child must be authorized to accompany and reside with the U.S. armed forces member as provided by the member’s official orders.[21] If the spouse of the U.S. armed forces member is the qualifying U.S. citizen parent, the spouse must be authorized to accompany and reside with the U.S. armed forces member as provided by the member’s official orders.[22] 
The official orders that authorize a child and, if applicable, his or her U.S. citizen parent, to accompany and reside with the member of the U.S. armed forces outside of the United States are a statutory requirement for that child to acquire citizenship under INA 320. If the child (and, if applicable, U.S. citizen parent) being added to the orders is the last action for the child to qualify for acquisition, then the date of the order becomes the date of acquisition. There is no statutory requirement for children of U.S. government employees or their spouses to be included on the employee’s official orders. 
The child of a U.S. armed forces member or a U.S. government employee (or his or her spouse) must meet the general requirements under INA 320(a)(1)-(2) in addition to being an LPR residing in the legal and physical custody of his or her U.S. citizen parent. All statutory requirements must be met before the child reaches the age of 18, including, if applicable, the issuance of the official orders for the child (and, if applicable, the U.S. citizen parent) to accompany and reside with the U.S. armed forces member who is stationed outside the United States.
D. Acquiring Citizenship Before the Child Citizenship Act of 2000The Child Citizenship Act (CCA) applies only to those children born on or after February 27, 2001, or those who were under 18 years of age as of that date. Persons who were 18 years of age or older on February 27, 2001, do not qualify for citizenship under INA 320. For such persons, including adopted children,[23] the law in effect at the time the last condition was met before reaching 18 years of age is the relevant law to determine whether they acquired citizenship.
Former Section 321 of the Immigration and Nationality Act
In general, former INA 321 applies to children who were already 18 years of age on February 27, 2001, but who were under 18 years of age in 1952, when the current Immigration and Nationality Act became effective.
In general, a child born outside of the United States to two noncitizen parents, or one noncitizen parent and one U.S. citizen parent who subsequently lost U.S. citizenship, acquires citizenship under former INA 321 if:
  • The child’s parent(s) meet one of the following conditions:​
    • Both parents naturalize;​
    • One surviving parent naturalizes if the other parent is deceased;​
    • One parent naturalizes who has legal custody of the child if there is a legal separation of the parents; or​
    • The child’s mother naturalizes if the child was born out of wedlock and paternity has not been established by legitimation.
  • The child is under 18 years of age when his or her parent(s) naturalize; and
  • The child is residing in the United States pursuant to a lawful admission for permanent residence at the time the parent(s) naturalized or thereafter begins to reside permanently in the United States.
As originally enacted in 1952, this section did not apply to adopted children of naturalized citizens.[24] Beginning on October 5, 1978, however, INA 321 became generally applicable to an adopted child if the child was residing in the United States at the time the adoptive parent or parents naturalized and the child was in the custody of his or her adoptive parents pursuant to a lawful admission for permanent residence.[25]
E. Application for Certificate of Citizenship (Form N-600)1. Submission of ApplicationA person born outside the United States who automatically acquires U.S. citizenship is not required to have evidence of such status. However, if the person seeks documentation of U.S. citizenship status, the person may file an Application for Certificate of Citizenship (Form N-600) with USCIS.[26]
The Secretary of Homeland Security has jurisdiction over the administration and enforcement of the INA within the United States, and the Secretary of State has jurisdiction over claims of U.S. citizenship made by persons who are abroad.[27] Therefore, generally, an Application for Certificate of Citizenship is submitted by persons who claim U.S. citizenship and are present within the United States. However, USCIS accepts a Form N-600 filed by a person who does not live in the United States, but USCIS does not adjudicate the application on the merits until the person is present in the United States in order to ensure that USCIS has jurisdiction over the application.[28]
A person who is at least 18 years of age may submit the Application for Certificate of Citizenship on the person’s own behalf. There is no filing fee for Form N-600 for current or former members of the U.S. armed forces if they are filing on their own behalf. A U.S. citizen parent or a legal guardian must submit the application for a child who has not reached the age of 18 years.[29]
USCIS issues proof of U.S. citizenship in the form of a Certificate of Citizenship if the Application for Certificate of Citizenship (Form N-600) is approved and the person takes the Oath of Allegiance, if required to do so.[30]
USCIS does not mail Certificates of Citizenship outside the United States except when a military member is issued a Certificate of Citizenship under INA 320[31] or a military member’s dependent child naturalizes under INA 322(d).
2. U.S. Passport or Consular Report of Birth Abroad as Evidence of CitizenshipA person may also apply for a U.S. passport with the U.S. Department of State (DOS) to serve as evidence of their U.S. citizenship.[32] A parent or legal guardian of a U.S. citizen child born outside the United States may also apply to the local U.S. embassy or consulate for a Consular Report of Birth Abroad (CRBA or Form FS-240).[33] A U.S. passport is valid for a limited time as established by DOS policies and standards on passport issuance.[34] Once a passport is expired, it is no longer conclusive evidence of citizenship.[35] Neither a CRBA nor a Certificate of Citizenship expires.
A valid, unexpired U.S. passport or a CRBA serves as evidence of a person’s U.S. citizenship.[36] An applicant for a Certificate of Citizenship may submit a valid and unexpired U.S. passport or a CRBA as evidence of U.S. citizenship.[37] The officer must review the valid U.S. passport or CRBA and the documentation submitted with the application and contained in the record to determine if it was issued properly.
The officer approves the Application for Certificate of Citizenship if the applicant is a U.S. citizen and meets all requirements.
3. Request to Revoke U.S. Passport or Cancel Consular Report of Birth AbroadIf the officer determines that the applicant is not a U.S. citizen or has evidence indicating that a U.S. passport or CRBA submitted as evidence was obtained or issued illegally, fraudulently, or erroneously, the officer reviews the case with USCIS counsel. Then, if appropriate, the officer may request that DOS revoke the U.S. passport or cancel the CRBA.[38]
Only DOS has the authority to revoke a U.S. passport or cancel a CRBA.[39] DOS may revoke a U.S. passport or cancel a CRBA in cases where the passport or CRBA was obtained or issued illegally, fraudulently, or erroneously.[40]
USCIS provides the following information to DOS in the passport revocation or CRBA cancellation request:
  • The applicant’s complete biographic information, including name and any known aliases;
  • The applicant’s last known address;
  • All previous unexpired U.S. passport numbers and alien registration numbers (A-numbers);
  • A copy of the CRBA or of the biographical page of the U.S. passport submitted as evidence (if available);
  • An explanation for requesting revocation or cancellation, including reasons for the request, analysis of the facts and dates used in determining that the passport or CRBA should be revoked or cancelled, and evaluation of evidence indicating that the applicant did not acquire U.S. citizenship;
  • Copies of all documentary evidence in support of the request, including certified translations of any documents written or originally prepared in a foreign language; and
  • The contact information of the USCIS office making the request.
Adjudication of Application with Revocation or Cancellation Request
After reviewing the case on the merits and requesting a revocation of a U.S. passport or a cancellation of a CRBA from DOS, the officer generally may not complete the adjudication of the Application for Certificate of Citizenship until DOS responds.
If DOS notifies USCIS that it does not intend to revoke the passport or cancel the CRBA, USCIS approves the Application for Certificate of Citizenship.[41] However, in cases with unusual or complex circumstances, USCIS may further consult with DOS.
If USCIS has evidence indicating that a U.S. passport submitted as evidence was obtained or issued illegally, fraudulently, or erroneously, and the passport was valid at the time of filing, but is expired at the time of adjudication, the officer should review the case with USCIS counsel and DOS before adjudicating.[42]
If DOS revokes the U.S. passport or cancels the CRBA, the officer denies the application in cases where the applicant does not otherwise meet the eligibility requirements for issuance of a Certificate of Citizenship.
4. Photographs and SignatureUSCIS may require the applicant (person seeking the Certificate of Citizenship), regardless of age, to appear at a local Application Support Center (ASC)[43] for photograph and signature submission.[44] A parent or legal guardian may sign for a child under the age of 14.[45] The parent or legal guardian of the person for whom the Certificate of Citizenship is sought does not submit any photographs in connection with the Form N-600.
USCIS does not submit information collected in connection with Form N-600 to the Federal Bureau of Investigation (FBI) for a background check.
Photograph Submission Outside the United States
A person seeking a Certificate of Citizenship who is residing outside the United States only needs to submit two passport-style photographs with the properly submitted application. USCIS does not schedule overseas applicants for an ASC appointment. USCIS coordinates with military service members who are stationed outside of the United States, if necessary, to secure photographs.
Failure to Appear for the ASC Appointment
USCIS may consider the Form N-600 abandoned in cases where the person seeking a Certificate of Citizenship fails to appear for the ASC appointment, unless, by the appointment time, USCIS receives a change of address or rescheduling request that USCIS concludes warrants excusing the failure to appear.[46]
If USCIS denies the application due to abandonment, the person eligible for the Certificate of Citizenship, or the parent or legal guardian of the person eligible for the Certificate of Citizenship, or the parent or legal guardian who filed on behalf of a child seeking a Certificate of Citizenship, may submit a motion to reopen or reconsider by filing a Notice of Appeal or Motion (Form I-290B).[47]
USCIS does not deny an application for abandonment for failure to provide photographs if USCIS has evidence that the applicant is a member of the U.S. armed forces who is permanently or temporarily outside the United States and unable to provide photographs or appear to submit a photograph and signature for reasons related to the individual’s military service. USCIS coordinates with military service members in these circumstances.
F. Documentation and EvidenceThe applicant must submit the following required documents unless such documents are already contained in the USCIS administrative record or do not apply:[48]
  • The child's birth certificate or record.
  • Marriage certificate of child's parents, if applicable.
  • Proof of termination of any previous marriage of each parent if either parent was previously married and divorced or widowed, for example:​
    • Divorce Decree; or​
    • Death Certificate.
  • Evidence of United States citizenship of parent:​
    • Birth Certificate;​
    • Naturalization Certificate;​
    • Consular Report of Birth Abroad (FS-240);​
    • A valid unexpired U.S. passport; or​
    • Certificate of Citizenship.
  • Documents verifying legitimation according to the laws of the child's residence or domicile or father's residence or domicile if the child was born out of wedlock.
  • Documentation of legal custody in the case of divorce, legal separation, or adoption.
  • If applicable, official orders (that is, a Permanent Change of Station (PCS)) from the respective department that authorized the child of the U.S. armed forces member, or the child of the spouse of such member and the spouse,[49] to accompany the U.S. citizen parent.
  • Copy of Permanent Resident Card or Alien Registration Receipt Card or other evidence of lawful permanent resident status, such as an I-551 stamp in a valid foreign passport or travel document issued by USCIS.
  • Copy of the full, final adoption decree, if applicable.[50]
  • Evidence of all legal name changes, if applicable, for the child and U.S. citizen parent.
An applicant does not need to submit documents that were submitted in connection with:
  • An immigrant visa application retained by the American Consulate for inclusion in the immigrant visa package; or
  • An immigrant petition or application and included in a USCIS administrative file.
If necessary, an officer may continue the application to request additional documentation to make a decision on the application. 
G. Citizenship Interview and WaiverIn general, an applicant must appear in person for an interview before a USCIS officer after filing an Application for Certificate of Citizenship. This includes the U.S. citizen parent or parents if the application is filed on behalf of a child under 18 years of age.[51] USCIS, however, may waive the interview requirement if all the required documentation necessary to establish the applicant's eligibility is already included in USCIS administrative records or if the required documentation is submitted along with the application.[52]
H. Decision and Oath of Allegiance1. Approval of Application, Oath of Allegiance, and Waiver for Children under 14 Years of AgeIf an officer approves the Application for Certificate of Citizenship, USCIS administers the Oath of Allegiance before issuing a Certificate of Citizenship.[53]
However, the INA permits USCIS to waive the taking of the Oath of Allegiance if USCIS determines the person is unable to understand its meaning.[54] USCIS has determined that children under the age of 14 are generally unable to understand the meaning of the oath. 
Accordingly, USCIS waives the oath requirement for a child younger than 14 years of age. If USCIS waives the oath requirement, USCIS issues a Certificate of Citizenship after the officer approves the application.
2. Denial of ApplicationIf an officer denies the Certificate of Citizenship application, the officer must notify the applicant in writing of the reasons for denial and include information on the right to appeal in the notice.[55] An applicant may file an appeal within 30 calendar days after service of the decision (33 days if the decision was mailed).
Footnotes
[^ 1] See INA 320. See Appendix: Nationality Chart 3 - Derivative Citizenship of Children [12 USCIS-PM H.3, Appendices Tab].
[^ 2] February 27, 2001 is the effective date for these CCA amendments.
[^ 3] For the definition of a child, see Chapter 2, Definition of Child and Residence for Citizenship and Naturalization [12 USCIS-PM H.2].
[^ 4] For cases based on an adoptive relationship, the requirements of INA 101(b)(1)(E), INA 101(b)(1)(F), or INA 101(b)(1)(G) must be met. For guidance on citizenship for adopted children, see Volume 5, Adoptions, Part F, Citizenship for Adopted Children [5 USCIS-PM F].
[^ 5] USCIS considers a child to be under the age of 18 years even if the last condition for acquisition of citizenship falls on the day of the child’s 18th birthday. See Matter of L. M. and C. Y. C., 4 I&N Dec. 617 (BIA 1952).
[^ 6] A person is generally considered to be an LPR once USCIS approves the adjustment application or once the person enters the United States with an immigrant visa. See INA 245(b). For certain classifications, however, the effective date of becoming an LPR is a date that is earlier than the actual approval of the status (commonly referred to as a “rollback” date). See Part D, General Naturalization Requirements, Chapter 2, LPR Admission for Naturalization, Section A, LPR at Time of Filing and Naturalization [12 USCIS-PM D.2(A)]. A person who is born a U.S. national and is the child of a U.S. citizen may establish eligibility for a Certificate of Citizenship without having to establish LPR status.
[^ 7] For the definition of residence, see Chapter 2, Definition of Child and Residence for Citizenship and Naturalization, Section F, Definition of U.S. Residence [12 USCIS-PM H.2(F)].
[^ 8] See INA 320. See 8 CFR 320.2. Certain children of U.S. armed forces members or U.S. government employees (or their spouses) who are residing outside the United States may acquire citizenship under INA 320. See Section C, Children of Armed Forces Members or U.S. Government Employees (or their Spouses) [12 USCIS‑PM H.4(C)]. See INA 320(c) (added by the Citizenship for Children of Military Members and Civil Servants Act, Pub. L. 116-133 (PDF) (March 26, 2020)).
[^ 9] See 8 CFR 320.1.
[^ 10] If the requirements of INA 101(b)(1)(E), or INA 101(b)(1)(F), or INA 101(b)(1)(G) are met. See Volume 5, Adoptions, Part E, Family-Based Adoption Petitions [5 USCIS-PM E]. See Volume 5, Adoptions, Part C, Child Eligibility Determinations (Orphan) [5 USCIS-PM C]. See Volume 5, Adoptions, Part D, Child Eligibility Determinations (Hague) [5 USCIS-PM D]. For information on citizenship for adopted children, see Volume 5, Adoptions, Part F, Citizenship for Adopted Children [5 USCIS-PM F].
[^ 11] For information about USCIS policies pertaining to this group of children before March 26, 2020, see Appendix: History of Acquiring Citizenship under INA 320 for Children of U.S. Citizens who are Members of the U.S. Armed Forces, U.S. Government Employees, or their Spouses [12 USCIS-PM H.4, Appendices Tab].
[^ 12] See Pub. L. 116-133 (PDF) (March 26, 2020) (codified at INA 320(c)).
[^ 13] Spouses must be U.S. citizens if the child seeks to acquire citizenship under INA 320 based on the child’s residence with that spouse.
[^ 14] The Citizenship for Children of Military Members and Civil Servants Act, Pub. L. 116-133 (PDF) (March 26, 2020), did not redefine “residence in the United States” for these children. Instead, it created an exception to the U.S. residence requirement by providing that INA 320(a)(3) is deemed satisfied in applicable cases.
[^ 15] These provisions do not affect children who have already been recognized by USCIS or the Department of State as having acquired U.S. citizenship under INA 320 through the issuance of a Certificate of Citizenship or passport.
[^ 16] This provision would also apply to a child adopted by a U.S. citizen parent if the child satisfies the requirements applicable to adopted children under INA 101(b)(1) and INA 320(b).
[^ 17] See INA 320(c)(2)(A)(i). For a list of qualifying military branches, see Part I, Military Members and their Families, Chapter 2, One Year of Military Service during Peacetime (INA 328), Section B, Honorable Service [12 USCIS-PM I.2(B)] and Section C, National Guard Service [12 USCIS-PM I.2(C)]. Service is not required to be “honorable” for the purposes of INA 320(c)(2)(A)(i) and a Request for Certification of Military or Naval Service (Form N-426) is not required as evidence.
[^ 18] See INA 320(c)(1)(A). An “employee of the U.S. government” means a person employed by the U.S. government and does not include a person employed under contract with the U.S. government. Because there is no statute or regulation defining employee or “employee of the Government of the United States” in the citizenship and naturalization context, the common law definition of employee applies. See Clackamas Gastroenterology Assoc., P.C., v. Wells, 538 U.S. 440, 448 (2003). See Nationwide Mutual Ins. Co. v. Darden, 503 U.S. 318, 322-23 (1992). The concept of “control” is the key to determining whether a person is an employee under the common law. See Nationwide Mutual Ins. Co. v. Darden, 503 U.S. 318, 323 (1992). Further, the plain language of the Citizenship for Children of Military Members and Civil Servants Act, Pub. L. 116-133 (PDF) (March 26, 2020), does not include persons employed under contract with the Government of the United States, in contrast to INA 316(b), which applies more specifically to persons “employed by or under contract with the Government of the United States.” 
[^ 19] Temporary orders, such as to serve in a combat zone or for mission support performance, do not affect the marital union between a military member and his or her spouse and would not impact acquisition of citizenship provisions under INA 320(c).
[^ 20] See INA 320(c)(2)(A)(ii) (spouses of U.S. armed forces member) and INA 320(c)(1)(B) (spouses of U.S. government employees).
[^ 21] See INA 320(c)(2)(B). For guidance on “official orders,” see Part I, Military Members and their Families, Chapter 9, Spouses, Children, and Surviving Family Benefits, Section A, General Provisions for Spouses, Children, and Parents of Military Members, Subsection 2, Documenting “Official Orders” [12 USCIS-PM I.9(A)(2)].
[^ 22] See INA 320(c)(2)(A)(ii).
[^ 23] For more information about adopted children who did not qualify under the CCA because they were at least 18 years of age on February 27, 2001 (were born on or before February 27, 1983), see Volume 5, Adoptions, Part F, Citizenship for Adopted Children, Appendix: How Previous Citizenship Provisions Apply to Adopted Children [5 USCIS-PM F, Appendices Tab].
[^ 24] See Section 321(b) of INA of 1952, Pub. L. 82-414 (PDF), 66 Stat. 163, 245 (June 27, 1952).
[^ 25] See Section 5 of the Act of October 5, 1978, Pub. L. 95-417 (PDF). The 1978 amendment limited this benefit to a child adopted while under 16 years of age. This restriction was removed in 1981 by the Act of December 21, 1981, Pub. L. 97-116 (PDF).
[^ 26] See 8 CFR 341.1. However, certain adopted children automatically receive a Certificate of Citizenship without having to file Form N-600. If an adopted child is admitted on an IR-3 or IH-3 visa (because the child’s adoption was finalized before entering the United States), is residing in the United States in the U.S. citizen parent’s legal and physical custody before the child reaches the age of 18, and otherwise fulfills the conditions of INA 320, USCIS automatically issues the child a Certificate of Citizenship. For additional information, see the USCIS Adoption webpage.
[^ 27] See INA 103(a)(1) and INA 104(a)(3).
[^ 28] See INA 341(a).
[^ 29] See 8 CFR 320.3(a).
[^ 30] See Section H, Decision and Oath of Allegiance [12 USCIS-PM H.4(G)]. See Part J, Oath of Allegiance, Chapter 2, The Oath of Allegiance [12 USCIS-PM J.2].
[^ 31] See 8 U.S.C. 1443a.
[^ 32] See 22 CFR 50.4.
[^ 33] See 22 CFR 50.5. See 8 FAM 101.1-2, Introduction to Consular Reports of Birth Abroad.
[^ 34] See 8 FAM 101.1, Introduction to U.S. Passports and Consular Reports of Birth Abroad.
[^ 35] See 22 U.S.C. 2705.
[^ 36] See Matter of Villanueva (PDF), 19 I&N Dec. 101 (BIA 1984) (Unless void on its face, a valid U.S. passport issued to a person as a citizen of the United States constitutes conclusive proof of the person’s U.S. citizenship). See 22 U.S.C. 2705 (A valid U.S. passport or CRBA has the same force and effect as proof of U.S. citizenship as Certificates of Naturalization or Certificates of Citizenship issued by USCIS). See 22 CFR 50.2.
[^ 37] A U.S. passport or CRBA does not serve as evidence of citizenship for noncitizen nationals.
[^ 38] See 22 U.S.C. 211a. See 22 CFR 51.60. See INA 361. See Rules Governing the Granting, Issuing, and Verifying of United States Passports, 31 FR 10603 (PDF) (Aug. 5, 1966). See Chapter 3, United States Citizens at Birth (INA 301 and 309), Section D, Application for Certificate of Citizenship (Form N-600), Subsection 3, Request to Revoke U.S. Passport or Cancel Consular Report of Birth Abroad [12 USCIS-PM H.3(D)(3)].
[^ 39] The process to request cancellation of a CRBA to DOS is the same as that for a passport revocation. The same process should be followed to request the revocation of a parent’s or grandparent’s U.S. passport or CRBA, when USCIS, while adjudicating an Application for Certificate of Citizenship, determines that it was issued illegally, fraudulently, or erroneously.
[^ 40] See INA 361.
[^ 41] See Matter of Villanueva (PDF), 19 I&N Dec. 101 (BIA 1984).
[^ 42] An expired U.S. passport may not be accepted as sufficient evidence of citizenship. In these cases, officers may need to request other evidence of U.S. citizenship.
[^ 43] Military service members may appear at any stateside USCIS ASC with or without an appointment. See Part I, Military Members and their Families, Chapter 6, Required Background Checks, Section C, Ways Service Members may Meet Fingerprint Requirements [12 USCIS-PM I.6(C)].
[^ 44] See 8 CFR 103.2(b)(9). See Volume 1, General Policies, and Procedures, Part C, Biometrics Collection and Security Checks, Chapter 2, Biometrics Collection [1 USCIS-PM C.2].
[^ 45] See 8 CFR 103.2(a)(2). See Volume 1, General Policies, and Procedures, Part B, Submission of Benefit Requests, Chapter 2, Signatures [1 USCIS-PM B.2].
[^ 46] See 8 CFR 103.2(b)(13)(ii). See Volume 1, General Policies and Procedures, Part C, Biometrics Collection and Security Checks, Chapter 2, Biometrics Collection [1 USCIS-PM C.2(A)].
[^ 47] See Notice of Appeal or Motion (Form I-290B). See 8 CFR 103.5 and 8 CFR 341.5(e). Although a person may file a motion to reopen or a motion to reconsider a denial due to abandonment, such a denial may not be appealed to the Administrative Appeals Office. See 8 CFR 103.2(b)(15). Moreover, any subsequent Application for a Certificate of Citizenship is rejected, and the applicant is instructed to submit a motion to reopen or reconsider. See 8 CFR 341.5(e). See 8 CFR 320.5(c).
[^ 48] See 8 CFR 320.3(b).
[^ 49] For guidance on “official orders,” see Part I, Military Members and their Families, Chapter 9, Spouses, Children, and Surviving Family Benefits, Section A, General Provisions for Spouses, Children, and Parents of Military Members, Subsection 2, Documenting “Official Orders” [12 USCIS-PM I.9(A)(2)].
[^ 50] For more information see Volume 5, Adoptions, Part F, Citizenship for Adopted Children, Chapter 3, Eligibility, Documentation and Evidence, Section B, Child Residing in the United States [5 USCIS-PM F.3(B)].
[^ 51] See 8 CFR 320.4.
[^ 52] See 8 CFR 341.2. See Section G, Documentation and Evidence [12 USCIS-PM H.5(G)].
[^ 53] See 8 CFR 320.5(a) and 8 CFR 337.1. See INA 337. See Part J, Oath of Allegiance, Chapter 2, The Oath of Allegiance [12 USCIS-PM J.2].
[^ 54] See INA 337(a). See 8 CFR 341.5(b).
[^ 55] See 8 CFR 320.5(b) and 8 CFR 103.3(a).



]]><![CDATA[Options for Foreign Students on F-1 visa in the USA: OPT, work visa, green card]]>Mon, 22 Jul 2024 15:40:11 GMThttps://law-visa-usa.com/blog-usa-immigration-law-updates/options-for-foreign-students-on-f-1-visa-in-the-usa-opt-work-visa-green-cardPost graduation work opportunities: OPT

Optional Practical Training (OPT) is a method for international students to obtain post-graduation work experience. The standard amount of OPT time is up to 12 months. For students holding a degree in certain Science, Technology, Engineering, or Math (STEM) subjects, the total OPT time can be up to 36 months.
However, it is important to note that OPT is not necessarily guaranteed. Unfortunately, young people living away from home for the first time can often get distracted or side-tracked with the plethora of activities on a college campus. Regrettably, there are many instances of international students falling out of immigration status or missing certain OPT filing deadlines, because of poor communication with the Designated School Official (DSO) within a university's international students office. That is why we recommend international students to remain in close contact with the DSO and update the DSO on issues such as poor grades, illness, the need to transfer universities, or the desire to apply for OPT to avoid these issues.
In addition, it is worth noting that the three-year STEM OPT opportunity may be available for subjects that are not traditional STEM fields. For example, recently there is a trend for Master of Business Administration (MBA) with sufficient quantitative content to also qualify the student for three-year STEM OPT. In fact, if a student has a STEM undergrad degree and a STEM MBA degree, one could have up to six years of OPT work experience.

Post graduation work opportunities: Work visas and green card

For some graduates, the available OPT time may be insufficient and they may prefer to obtain a longer-term work visa. In this case, it is important to pay attention to the annual filing deadlines for the H-1B Specialty Occupation work visa lottery, which occurs once a year in March. Winning the H-1B lottery is certainly not guaranteed (i.e. average odds may be around 25-30%); however, the chances of winning can be increased if the student has a US master's degree or higher. That is because, beyond the regular cap of 65,000 H-1B visas, there is an additional pool of 20,000 H-1B visas for those with a US masterʼs degree or higher,  potentially increasing the lottery odds to around 50%.



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]]><![CDATA[U.S. Supreme Court Reaffirms That Federal Courts Don't Have  Authority to Review Visa Denials]]>Fri, 12 Jul 2024 20:44:00 GMThttps://law-visa-usa.com/blog-usa-immigration-law-updates/us-supreme-court-reaffirms-that-federal-courts-dont-have-authority-to-review-visa-denialsIn a 6-3 ruling in U.S. Department of State et al v. Munoz et al (Case Number 23-334), the Supreme Court of the United States (SCOTUS) reaffirmed the doctrine of consular nonreviewability ruling against a U.S. citizen’s spouse who argued that the federal government violated her due process rights by denying her Salvadoran spouse an immigrant visa based on an approved family-based petition. The doctrine of consular nonreviewability holds that because the INA fails to authorize judicial review of consular decisions denying visas, federal courts do not have the authority to review visa denials.
In Munoz, SCOTUS held that U.S. citizens do not have a constitutional fundamental liberty interest in their non-citizen spouse’s ability to be admitted to United States, moreover, that U.S. citizens are not constitutionally entitled to review of denied visas as they could not raise this issue indirectly in their spouse’s case.
Ms. Munoz, a U.S. citizen, and her non-citizen spouse of over 10 years, Mr. Munoz, were forced to live apart for several years. Mr. Munoz was denied a visa following several interviews and without any explanation other than a broad reference to section 212(a)(3)(A)Iii) of the Immigration and Nationality Act (INA), which makes an individual inadmissible if the consular officer “knows, or has reasonable ground to believe” that the individual seeks to enter the United States to engage in unlawful activity. Ms. Munoz eventually guessed (correctly) that the Consulate believed her husband was a member of MS-13, a transnational criminal gang, due to his tattoo. Mr. Munoz asked the Consulate to reconsider its visa denial, but the Consulate denied this request. The couple then filed a federal lawsuit against the Consulate and the Department of State (DOS), arguing, inter alia, that the government had abridged Ms. Munoz’s constitutional liberty interest in her husband’s visa application by failing to give a sufficient reason he was inadmissible under the cited INA provision. The District Court granted summary judgment in favor of DOS after DOS admitted the denial was in fact based on a consular officer’s determination that Mr. Munoz had religious tattoos that looked like gang logos. Thereafter, the Ninth Circuit Court of Appeals vacated the judgment, which brought the case next to the U.S. Supreme Court.
In its ruling, SCOTUS indicated that the “’the Due Process Clause specially protects’ only ‘those fundamental rights and liberties which are, objectively, deeply rooted in this Nation’s history and tradition.’” While Munoz invoked the fundamental right to marriage, SCOTUS concluded that Ms. Munoz was in fact claiming something different – the right to reside with her non-citizen spouse in the U.S. And that, SCOTUS concluded, is not a right deeply rooted in the nation’s history. Indeed, the country’s history instead recognizes instead the government’s sovereign authority to set the terms of admission and exclusion. SCOTUS also noted that while Congress has made some specific exceptions for spouses, Congress has not made spousal immigration a matter of right.
In its decision, SCOTUS distinguished an earlier case, Kerry v. Din, 576 U.S. 86 (2015) where in a concurring opinion, Justice Anthony Kennedy assumed that a U.S. citizen would have a liberty interest that would be burdened by a spouse’s visa denial and was therefore entitled to more information than a simple citation explaining the denial. In that case, Justice Kennedy was referring to the fact that a U.S. citizen should have some right to question a denial of a spouse’s visa because there could be “bad faith” denial.
Some advocates are concerned that SCOTUS’ opinion in Munoz could lead to unnecessary family separations and subject U.S. citizen spouses to arbitrary decisions by consular officers, denying them the opportunity to build their lives together with their spouses in the U.S. Moreover, this decision casts fear and uncertainty on non-citizen spouses who have an approved family-based petition who must leave the country temporarily to process their immigrant visas abroad – not knowing whether a consular officer may erroneously deny their visa. Ultimately, SCOTUS’ decision may force U.S. citizen spouses to leave the U.S. so they can live with their spouses abroad – without having had the ability to challenge a potentially erroneous visa denial by a consular officer.

https://www.supremecourt.gov/docket/docketfiles/html/public/23-334.html

https://supreme.justia.com/cases/federal/us/602/23-334/

]]><![CDATA[NEW Privacy Law Update: How to Contact USCIS in sensitive VAWA, I-751 abuse waiver, T, U cases]]>Thu, 04 Jul 2024 16:12:32 GMThttps://law-visa-usa.com/blog-usa-immigration-law-updates/new-privacy-law-update-how-to-contact-uscis-in-sensitive-vawa-i-751-abuse-waiver-t-u-casesInquiries for VAWA, T, and U Filings (Including Form I-751 Abuse Waivers)If you have a previously filed, pending, or approved VAWA, T, or U-related case, you may call the USCIS Contact Center at 800-375-5283 (TTY: 800-767-1833) to request information about your case or certain services, such as an address change.
USCIS must verify your identity and confirm your eligibility to receive information before providing any information or other requested service. Before calling the USCIS Contact Center, you should have your receipt notice(s) for the particular form(s) on which you would like to request information or other services for reference during the call. You should also have a copy of the pending or approved application or petition that you are calling about readily available, if possible. If the USCIS Contact Center is unable to provide information or to make the change that you requested, you may be scheduled for an in-person appointment at a USCIS field office.
Protected individuals may also send a secure message from their USCIS online account, and USCIS will call the person to complete the enhanced identity through the specialized verification process. Once a protected person’s identity has been verified through this process, the Contact Center can respond to the inquiry or provide assistance.
Petitioners and applicants may also send signed written inquiries or requests for biometrics appointments, including a new date or time or location, to:
  • For cases located at the Vermont Service Center (receipt number begins with EAC):
U.S. Citizenship and Immigration Services
Vermont Service Center
ATTN: Humanitarian Division
38 River Road
Essex Junction, VT 05479-0001
  • For cases located at the Nebraska Service Center (receipt number begins with LIN):
U.S. Citizenship and Immigration Services
Nebraska Service Center
ATTN: I-918
P.O. Box 87918
Lincoln, NE 68501-7918
If the inquiry is related to a Form I-751 waiver based on battery or extreme cruelty, then petitioners and/or their representatives must submit the signed inquiry to the appropriate service center by paper correspondence:
  • U.S. Citizenship and Immigration Services
    California Service Center
    ATTN: WS 13057
    P.O. Box 10751
    Laguna Niguel, CA 92607-1075
  • U.S. Citizenship and Immigration Services
    Nebraska Service Center
    P.O. Box 87918
    Lincoln, NE 68501-7918
  • U.S. Citizenship and Immigration Services
    Potomac Service Center
    6046 N Belt Line Rd. STE 114
    Irving, TX 75038-0020
  • U.S. Citizenship and Immigration Services
    Texas Service Center
    ATTN: SRMT/COA or SRMT/IRT
    6046 N Belt Line Rd. STE 751
    Irving, TX 75038-0020
  • U.S. Citizenship and Immigration Services
    Vermont Service Center
    ATTN: Humanitarian Division
    38 River Road
    Essex Junction, VT 05479-0001
Attorneys and accredited representatives may also send inquiries to the following email addresses: Note: To receive a response, the individual making the inquiry must have a properly executed Form G-28, Notice of Entry of Appearance as Attorney or Representative, filed on the specific case. We will not respond to emails from anyone who is not named on the Form G-28 on file for the case.

This new update is intended to help those individuals who have no attorney or legal representative and try to contact USCIS about their cases. In the past, it was possible to mail a letter, but the response time was very long and not always reliable. Let's hope this new system works!

If you have an attorney, attorneys have other way of contacting the USCIS offices.

https://www.uscis.gov/policy-manual/volume-1-part-a-chapter-7



]]><![CDATA[Work Visas and Green Cards for DACA Recipients and Undocumented College Students]]>Mon, 24 Jun 2024 18:16:28 GMThttps://law-visa-usa.com/blog-usa-immigration-law-updates/work-visas-and-green-cards-for-daca-recipients-and-undocumented-college-studentsWork Visas and Green Cards for DACA Recipients and Undocumented College Students

On June 18, 2024, President Biden announced actions to facilitate waivers of inadmissibility (ineligibility to enter the U.S.) for certain college-educated DACA recipients who apply for temporary visas for “high skilled” jobs. The administration will direct the U.S. Department of State to update its guidance for the issuance of certain waivers so that qualifying DACA recipients can travel abroad to obtain temporary work visas without facing a ten-year penalty they would otherwise face when they depart the U.S. for processing. This new guidance will remove obstacles for certain DACA recipients, who currently do not have an independent pathway to lawful permanent resident status, to obtain a temporary work visa status that can more readily lead to a path to employment-based sponsorship of their green cards.

To qualify, DACA recipients must have a degree from an accredited U.S. institution of higher education and a job offer from a U.S. employer in a related field.. Since DACA recipients either entered without authorization or were out of status when they received DACA protection, they are typically ineligible for a transition to a lawful status within the U.S.

Under current law, they are required to “consular process” outside the U.S. and obtain a work visa at a U.S. consulate. The individual’s departure from the U.S. could trigger removal bars (similar to those described above), requiring the individual to obtain a temporary waiver of inadmissibility from the government. These waivers, known as “d3 waivers” based on the section of the INA to which they relate, can take months to obtain and the outcome of such a waiver is not certain. These cumulative issues have chilled the interest of many employers and DACA recipients in pursuing these waivers.

In the coming weeks, the administration is expected to announce additional steps to streamline the availability of waivers. The U.S. Department of State will announce changes to its process for granting such waivers to DACA recipients through updates to the Foreign Affairs Manual, and DHS has indicated that it will adopt the State Department’s policy changes. These steps, if implemented, are very good news for many employers and the DACA recipients that they employ by providing a more efficient, robust and reliable process for transitioning DACA recipients to a more stable and lawful status in the U.S.

]]><![CDATA[New Law: Green Cards and Parole in Place for Certain Spouses and Step-children of US Citizens]]>Wed, 19 Jun 2024 15:46:29 GMThttps://law-visa-usa.com/blog-usa-immigration-law-updates/new-law-green-cards-and-parole-in-place-for-certain-spouses-and-step-children-of-us-citizensPicture
On June 18, 2024, President Joe Biden announced a new program that will allow certain spouses of United States citizens to apply for “parole-in-place" from the Department of Homeland Security (DHS). This program, which is not yet open for applications, will not only allow up to 550,000 people to receive temporary protections and work permits in the United States, but will generally allow them to apply for lawful permanent resident (LPR) status (also known as a green card) through their spouses without risking years of separation from their families.

PLEASE NOTE THAT THIS NEW RULE IS NOT THE LAW YET.  IT WILL BE PUBLISHED IN FEDERAL REGISTER AND BECOME THE LAW IN THE NEXT FEW MONTHS.

DO NOT FILE ANYTHING BASED ON THIS ANNOUNCEMENT YET.

Current U.S. law allows U.S. citizens to apply for their non-citizen spouses to obtain permanent residency, but the obstacles attached to this path have made it difficult and risky for many unauthorized immigrants to receive the legal status they are theoretically eligible for. The Biden administration’s new parole program solves the biggest of these problems. Even if the program itself is put on hold or reversed in future, those who have been granted parole under it will still have unlocked a far easier path to become permanent residents of the United States.
The Problem Being Addressed: Spouses of U.S. Citizens Who Could Not Become Citizens ThemselvesSpouses of U.S. citizens are generally eligible for an immigrant visa as an “immediate relative” of a citizen. This allows them to become legal permanent residents and, after a certain number of years, apply for U.S. citizenship. However, people who entered the United States “without inspection” (e.g. by crossing the U.S./Mexico border without prior approval) have a much harder path to permanent residency through their spouses. The only option generally available for them is so bureaucratically onerous, and risky, that many of them have been unable to receive the green cards for which they are theoretically eligible. As a result, some 1.2 million people are married to U.S. citizens without having formal immigration status themselves—even though, in theory, many should have a path to green cards.
Under federal law, some immigrants—namely, those who have already been “inspected and admitted” (generally, anyone who entered through an official port of entry) or “inspected and paroled” into the U.S.—can apply to adjust their status to permanent residency without having to depart the country to attend an immigrant visa interview at a U.S. embassy or consulate abroad. However, immigrants who entered without inspection do not have this option. They must leave the United States, go to a consulate abroad, and obtain a new immigrant visa to reenter.
Once they leave the United States to go to a consulate, however, they often trigger a years-long bar on legally reentering the country to be reunited with their families. This is because of a 1996 law that imposed bars of up to ten years on anyone who has been “unlawfully present” in the United States for more than one year, preventing them from receiving visas for which they would otherwise be eligible.
Immigrants married to U.S. citizens may apply for a waiver of the bar—thus allowing them to receive their immigrant visas and come back into the U.S. as permanent residents—if they can demonstrate that their citizen spouses would suffer “extreme hardship” from such a prolonged separation. Because approval of the waiver is not guaranteed, leaving the U.S. before the waiver has been approved is risky. Immigrants are allowed to apply for “provisional” waivers before leaving the U.S. to solve this problem. However, as of April 2024, the U.S. government was taking over 41 months—three and a half years—to adjudicate these waivers, in addition to the amount of time taken to adjudicate the underlying application for the immigrant visa and arrange a trip to the U.S. consulate.
The Solution: Parole-In-Place Allows People to Apply for Green Cards Without Leaving the U.S.U.S. immigration law allows the executive branch to grant “humanitarian parole” to certain people who otherwise lack a lawful basis to enter or remain in the U.S., when the government determines that a grant of parole would satisfy urgent humanitarian reasons or provide a significant public benefit. Humanitarian parole allows beneficiaries to temporarily enter or remain in the United States for a defined period, which can be anything from a few days to several years. Individuals who are granted parole are able to apply for work authorization if necessary to support themselves while in the United States. When humanitarian parole is granted to people who are already inside the United States, it is known as parole-in-place.
Someone who has been granted humanitarian parole, including parole-in-place, counts as having been “inspected and paroled” into the United States under federal law. This means that parolees who are eligible to apply for green cards through their spouses will be able to do so by applying for adjustment of status within the United States, without having to risk triggering reentry bars by leaving the country.
Importantly, even if someone’s particular grant of parole (including the protection from deportation and work permit that may be attached to it) expires or is revoked in future, they are still considered to have been paroled into the United States under immigration law. This means that even if the new parole program is struck down in court or is ended by a future president, those who have already been granted parole-in-place under the program will still be eligible to apply for green cards without leaving the country and risking separation.
Who Will Be Helped: Potentially Half a Million Immigrants and Their U.S. Citizen Spouses and ChildrenTo receive parole-in-place under the new Biden program, families will likely have to submit a new application using a form which has not yet been published. The June 18 announcement anticipates that applications will become available later this summer.
Without the form and accompanying Federal Register notice, the public does not know exactly who will be eligible for the new parole program. However, the June 18 announcement specified that the new program will be available only to people who:
  • Have continuously resided in the United States since June 17, 2014;
  • Were physically present in the United States on June 17, 2024;
  • Have been legally married to a U.S. citizen as of June 17, 2024;
  • Entered the United States without admission or parole and do not currently hold any lawful immigrant or nonimmigrant status;
  • Have not been convicted of any disqualifying criminal offense;
  • Do not pose a threat to national security or public safety; and
  • Merit a favorable exercise of discretion.
Applicants will have to provide documentation proving that they meet the above criteria alongside their application form and pay a fee. However, it is not yet known exactly what forms of documentation will be accepted and what the fee will be.

Importantly, while the DHS announcement states that the parole program will be available only to people who are otherwise eligible for permanent residency, the list of criteria provided by DHS does not specify this. If this is not an explicit criterion for the parole program, some immigrants might be able to benefit for parole protections and work permits who are not eligible to convert those protections to permanent residency. For example, some individuals may be barred from adjusting their status to permanent residency if they were previously deported and then reentered the country without inspection.
The White House estimates that approximately 500,000 spouses of U.S. citizens will meet these criteria and will thus be eligible to apply for the new parole program. Additionally, children of applicants who are stepchildren of U.S. citizens will also be eligible for parole with their parents, adding 50,000 more potential beneficiaries.
Parole-in-place will give these individuals a genuine opportunity to receive the permanent residency for which they have theoretically been eligible for years or decades—and allow them to work legally in the United States while waiting for their immigrant visas to be approved. It will give much needed peace of mind and permanent solutions for not only these individuals, but their U.S. citizen spouses and, often, their U.S.-born children.

Read here.

f you have any questions or want to schedule a consultation, or need help, please email an attorney, or use our scheduler at https://calendly.com/lubasmal/

Briefly in Russian:

18 июня 2024 президент Байден подписал новый закон, который позволит супругам и детям супругов американских граждан получить гуманитарный пароль и затем грин карты, не выезжая из страны. Это поможет тем, кто въехал в США нелегально, например EWI, получить вначале пароль на 3 года parole-in-place. А затем грин карты.

Условия:
- нет судимостей
- не является риском для национальной безопасности
- это решение офицера - который не обязан давать положительный ответ
- непрерывное проживание в США более 10 лет с 17 июня 2014 года
- физически находился в США на 17 июня 2024
- брак с американским гражданином, заключенный до 17 июня 2024 (если не заключен, вы не сможете воспользоваться этим законом).

ВНИМАНИЕ - ПОКА ЭТОТ ЗАКОН НЕ ВСТУПИЛ В СИЛУ - НЕ ПОДАВАЙТЕ НИКАКИХ ЗАЯВЛЕНИЙ. В конце лета это новое правило будет опубликовано в Федеральном Регистре, и тогда мы узнаем все детали, и будет возможно подать заявления.

Для помощи обращайтесь только к адвокатам, а не к паралигалам или нотариусам, которые не имеют права давать юридический совет и оказывать помощь, если не работают в офисе адвоката под его руководством.

Пишите на емейл или запись на консультацию через наш онлайн календарь тут: https://calendly.com/lubasmal



]]><![CDATA[USCIS Increases Automatic Extension of Certain EADs work permits from April 2024 to Sep 2027]]>Thu, 30 May 2024 05:00:00 GMThttps://law-visa-usa.com/blog-usa-immigration-law-updates/uscis-increases-automatic-extension-of-certain-eads-work-permits-from-april-2024-to-sep-2027USCIS Increases Automatic Extension of Certain EADs or Work Permits where an application for an extension was timely filed.

On April 4, 2024, U.S. Citizenship and Immigration Services (USCIS) announced a temporary final rule increasing the automatic extension period for certain employment authorization documents (EADs) to up to 540 days (from up to 180 days). The final rule is effective April 8, 2024, through September 20, 2027, except for the amendments to 8 CFR 274a.13(d)(5), which are effective from April 8, 2024, through October 15, 2025.
Noncitizens in certain employment eligibility categories who timely file Form I-765 (the Application for Employment Authorization) to renew their EADs may qualify for an automatic extension of their expiring EAD while their application remains pending. To be eligible for the automatic extension, (1) the Form I-765 must be properly and timely filed before the applicant’s current EAD expires (except certain applicants with Temporary Protected Status (TPS) or a pending TPS application); (2) the renewal application must be under a category that is eligible for automatic extension (the list of categories can be found here); and (3) the category on the applicant’s current EAD must match the “Class Requested” listed on the Form I-797C, Notice of Action, Receipt Notice.
The final rule increases the automatic extension period to up to 540 days for the following eligible EAD applicants: (1) applicants who timely and properly filed Form I-765 on or after October 27, 2023, if the application is still pending on April 8, 2024; and (2) applicants who timely and properly file their Form I-765 on or after April 8, 2024, and on or before September 30, 2025. As such, eligible renewal EAD applicants who meet one of these two categories may now receive up to 540 days of temporary work authorization while their renewal applications remain pending.

]]><![CDATA[EAD Work Permit Until August 2025 for Palestinians Gaza Covered by Deferred Enforced Departure DED]]>Fri, 12 Apr 2024 16:44:45 GMThttps://law-visa-usa.com/blog-usa-immigration-law-updates/ead-work-permit-until-august-2025-for-palestinians-gaza-covered-by-deferred-enforced-departure-dedEmployment Authorization for Palestinians Covered by Deferred Enforced Departure  The Department of Homeland Security posted a Federal Register notice establishing procedures for Palestinians covered by Deferred Enforced Departure (DED) to apply for DED-based Employment Authorization Documents (EADs) valid through Aug. 13, 2025. 

On Feb. 14, 2024, President Biden issued a memorandum on DED for Palestinians deferring for 18 months the removal of certain Palestinians present in the United States at the time of the announcement and allowing for employment authorization. Palestinians who enter the United States after Feb. 14, 2024, are not eligible for DED. 

Accompanying this announcement is a Special Student Relief notice for F-1 nonimmigrant Palestinian students so that eligible students may request employment authorization, work an increased number of hours while school is in session, and reduce their course load while continuing to maintain F-1 status through the DED period.  

The Federal Register notice describes eligible Palestinians and required documentation. It also has more information about DED for Palestinians and how eligible individuals may apply for DED-related EADs.  
More Information
For more information on DED, including additional information on eligibility, please visit USCIS’ Deferred Enforced Departure webpage.]]><![CDATA[Asylum I-589 New Filing Rules Effective May 9, 2024]]>Tue, 09 Apr 2024 14:56:51 GMThttps://law-visa-usa.com/blog-usa-immigration-law-updates/asylum-i-589-new-filing-rules-effective-may-9-2024On April 9, 2024, USCIS made the following announcement:

Effective May 9, 2024, we will reject affirmative asylum applications improperly filed at service centers instead of at the lockbox with jurisdiction over your place of residence. We announced this change in filing location on May 31, 2023, and finalized the associated revision to Form I-589, Application for Asylum and for Withholding of Removal, in the Federal Register, 88 FR 60703 (Sept. 5, 2023). We expect this change to help streamline asylum processing and improve adjudication efficiency by digitizing paper filings.
​
Certain categories of affirmative asylum applicants must continue to mail their applications directly to the Asylum Vetting Center.

Unaccompanied children (UCs) in immigration court proceedings must mail their applications to the lockbox.

Online filing is also available to affirmative asylum applicants who are not in immigration court proceedings and who do not have to submit their application to the Asylum Vetting Center.

​See the “Where to File” and “Special Instructions” sections of our Form I-589 webpage for more information and to learn where to file your application. You can also use our Filing Instructions Tool to determine where to file your Form I-589.

]]><![CDATA[Medical Exam USCIS I-693 Signed After November 1 2023 Remains Valid Indefinitely]]>Sat, 06 Apr 2024 00:35:58 GMThttps://law-visa-usa.com/blog-usa-immigration-law-updates/medical-exam-signed-after-november-1-2023-remains-valid-indefinitelyOn April 4, U.S. Citizenship and Immigration Services (USCIS) issued policy guidance in the USCIS Policy Manual stating that immigration medical examinations properly completed and signed by a civil surgeon on or after Nov. 1, 2023, on Form I-693, Report of Immigration Medical Examination and Vaccination Record, do not expire and retain their evidentiary value indefinitely. Previous rule was that all properly completed Forms I-693 retained their evidentiary value for two years from the date of the civil surgeon’s signature.    
USCIS has determined that a properly completed Form I-693 signed by a civil surgeon on or after Nov. 1, 2023, does not expire and can be used as evidence to show that the applicant is not inadmissible on health-related grounds indefinitely.

If an applicant’s Form I-693 was completed before Nov. 1, 2023, the prior policy still applies. Before Nov. 1, 2023, civil surgeons did not need to share or report certain information to the CDC electronically. USCIS has consulted with the CDC and determined that a properly completed Form I-693 signed by a civil surgeon before Nov. 1, 2023, continues to retain evidentiary value for two years from the date of the civil surgeon’s signature. 

This does not apply to Forms I-693 filed by Operation Allies Welcome parolees. Their Forms I-693 retain their evidentiary value for three years from the date of the civil surgeon signature, through policy and in consultation with CDC. For more information see the USCIS Policy Manual, Volume 8, Part B, Chapter 4. 
Even in cases in which an applicant’s Form I-693 is valid as outlined above, USCIS officers have discretion to request more evidence or a new or updated Form I-693 if they have reason to believe the applicant’s medical condition has changed since the civil surgeon signed the Form I-693, or that the Form I-693 submitted does not accurately reflect the applicant’s medical condition.   
More Information.

По новому закону медицинский осмотр, форма I-693, подписанный врачем после 1 ноября 2023, и поданный в USCIS при подаче заявления на Грин Карту, остается действительным и не истекает.
​Медосмотр подписанный врачем до 1 ноября 2023 истекает через два (2) года по старому закону.

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]]><![CDATA[Effective April 8 2024 USCIS Automatically Extends EAD Work Permit for 540 Days]]>Sat, 06 Apr 2024 00:18:07 GMThttps://law-visa-usa.com/blog-usa-immigration-law-updates/effective-april-8-2024-uscis-automatically-extends-ead-work-permit-for-540-daysOn April 8, 2024, USCIS will publish a temporary final rule that will provide automatic extensions of work authorization for certain employment authorization and document (“EAD”) renewal applicants.
Effective October 26, 2023, USCIS shortened the automatic extension for certain EADs from 540 days to 180 days.

USCIS has now determined that the 180-day automatic extension is not enough time, given the number of EAD renewal applicant. To avoid lapses and the issues that arise from individuals losing work authorization, DHS is temporarily amending existing regulations to increase the automatic extension period to 540 days, up from 180, for certain applicants.

The rule will apply to those applicants whose EAD applications were timely filed on or after October 27, 2023, if their application is still pending on April 8, 2024. The temporary final rule will also apply to EAD renewal applicants eligible to receive an automatic extension who timely and properly file their EAD application on or after April 8, 2024, and on or before Sept. 30, 2025.

The following EAD categories will qualify for the 540-day extension:
  • Adjustment of status applicants (C09);
  • Temporary Protected Status (TPS) (A12 or C19);
  • Refugees and asylees (A3 and A5);
  • Noncitizens who have properly filed applications for asylum and withholding of deportation or removal (C08);
  • Approved self-petitioners under the Violence Against Women Act (VAWA) and their qualified children (A31);
  • H-4 spouses with a valid H-4 I-94 (C26);
  • E-1, E-2, and E-3 spouses with a valid E spousal I-94 (A17), however, E-1, E-2 and E-3 spouses are employed incident to valid E-1S, E-2S and E-3S status and do not need to apply for an EAD;
  • L-2 spouses with a valid L-2 I-94 (A18), however, L-2 spouses are employment authorized incident to their L-2S status and do not need to file for an EAD.
Employers who have employees working pursuant to the automatic EAD extension will not need to do an I-9 update until the employee reaches the end date of their 540-day extension.

Read more here.

Начиная с 8 апреля 2024, USCIS автоматически продлевает разрешения на работу на 540 дней (вместо 180) для некоторых категорий, поданные после 27 октября 2023.

​
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]]><![CDATA[How to Submit Request to Expedite Application to USCIS]]>Mon, 25 Mar 2024 04:16:03 GMThttps://law-visa-usa.com/blog-usa-immigration-law-updates/how-to-submit-request-to-expedite-application-to-uscisIn March 2024, USCIS updated its Policy Manual on how to request USCIS to expedite adjudication of the application or petition.

USCIS Publicshed a Memo and updated the Manual. 

Immigration benefit requestors or their authorized representative may request that USCIS expedite the adjudication of their application, petition, request, appeal, or motion that is under USCIS jurisdiction.[1] USCIS considers all expedite requests on a case-by-case basis in the exercise of discretion and generally requires documentation to support such requests. The decision to expedite is within the sole discretion of USCIS.

As expediting an application, petition, request, appeal, or motion generally means that USCIS would adjudicate the requestor's benefit ahead of others who filed earlier, USCIS carefully weighs the urgency and merit of each expedite request.

A. Expedite Criteria or CircumstancesUSCIS may expedite adjudication of an application, petition, request, appeal, or motion at its discretion. USCIS considers the totality of the circumstances and evidence submitted in support of an expedite request.

Relevant criteria or circumstances that may be considered in determining whether to grant an expedite request include, but are not limited to, the following:
  • Severe financial loss to a company or person, provided that the need for urgent action is not the result of the petitioner’s or applicant’s failure to timely file the benefit request or to timely respond to any requests for evidence.[2]
  • Emergencies or urgent humanitarian situations.
  • Nonprofit organization (as designated by the Internal Revenue Service (IRS)) whose request is in furtherance of the cultural or social interests of the United States.
  • Government interests, including cases identified by the government as urgent because they involve the public interest, public safety, national interest, or national security interests.
  • Clear USCIS error.


1. Severe Financial Loss as a Basis for Expedited TreatmentA company can demonstrate that it would suffer a severe financial loss if it is at risk of failing, losing a critical contract, or required to lay off other employees. For example, a medical office may suffer severe financial loss if a gap in a doctor’s employment authorization would require the medical practice to lay off its medical assistants.
Job loss may be sufficient to establish severe financial loss for a person, depending on the individual circumstances. For example, the inability to travel for work that would result in job loss might warrant expedited treatment. The need to obtain employment authorization, standing alone, without evidence of other compelling factors, does not warrant expedited treatment.
In addition, severe financial loss may also be established where failure to expedite would result in a loss of critical public benefits or services.

2. Expedited Treatment Based on Emergency or Urgent Humanitarian Situations

In the context of an expedite request, an emergency or urgent humanitarian situation is a pressing or critical circumstance related to human welfare. Human welfare means issues related to the well-being of a person or group. Examples include, but are not limited to, illness, disability, death of a family member or close friend, or extreme living conditions, such as those caused by natural catastrophes or armed conflict.
USCIS considers requests related to a requestor’s individual welfare and requests that are related to the welfare of others. For example, to facilitate the well-being of an individual, USCIS may expedite a benefit request where a vulnerable person’s safety may be otherwise compromised. To facilitate the well-being of others, for example, USCIS may expedite employment authorization for healthcare workers during a pandemic.

Certain benefit requests, such as asylum applications, refugee applications, and requests for humanitarian parole, by their nature involve urgent humanitarian situations. Therefore, filing a humanitarian-based benefit, standing alone, without evidence of other time-sensitive or compelling factors, generally may not warrant expedited treatment under this criterion.[3]

Travel-Related Requests

USCIS considers expedited processing of an Application for Travel Document (Form I-131) when there is a pressing or critical need for an applicant to travel outside the United States.
Expedited processing of a travel document may be warranted when there is an unexpected event, such as the pressing or critical need to travel outside the United States to obtain medical treatment in a limited amount of time, or due to the death or grave illness of a family member or close friend.
Expedited processing of a travel document may also be warranted when there is a pressing or critical need to travel outside the United States for a planned event, but processing times prevent USCIS from issuing the travel document by the planned date of departure. When the need to expedite issuance of a travel document is related to a planned event, USCIS considers whether the applicant timely filed the Form I-131 or timely responded to a request for evidence.[4]

For example, a requestor may have applied for a travel document 5 months ago when they learned of the event, but their case remains pending, and they must travel for an event which is now in 45 days, such as for a:
  • Work or professional commitment (such as a meeting, conference, forum, seminar, or training);
  • Academic commitment (such as a study abroad program, research trip, forum, seminar, conference, or practicum); or
  • Personal commitment (such as a wedding or graduation).
The examples of travel-related emergencies provided above are not exhaustive. Officers should review travel-related expedite requests on a case-by-case basis to determine if the need to travel is pressing or critical.
A benefit requestor’s desire to travel solely for vacation generally does not meet the definition of a pressing or critical need to travel.

3. Nonprofit Organization Seeking Expedited Treatment

A nonprofit organization seeking to expedite a beneficiary’s benefit request must demonstrate an urgent need to expedite the case based on the beneficiary’s specific role within the nonprofit in furthering cultural or social interests (as opposed to the organization’s role in furthering social or cultural interests). Examples may include a medical professional urgently needed for medical research related to a specific “social” U.S. interest (such as the COVID-19 pandemic or other socially impactful research or project) or a university professor urgently needed to participate in a specific and imminent cultural program. Another example is a religious organization that urgently needs a beneficiary’s specific services and skill set to continue a vital social outreach program. In such instances, the religious organization must articulate why the respective beneficiary is specifically needed, as opposed to pointing to a general shortage alone.

4. Expedited Treatment Based on Government Interests

Government interests refer to interests of any federal, state, tribal, territorial, or local government of the United States.[5] This includes cases identified as urgent by the government because they involve public interest, public safety, national interest, or national security interests. The request must be made by a person who has authority to represent the agency or department, such as an official, manager, supervisor, or tribal leader, on the matter for which expedited treatment is being requested. The request must demonstrate that the interests are pressing and substantive.
Where a federal agency or department identifies an articulable federal government interest in accordance with these criteria, USCIS generally defers to that federal agency or department’s assessment.
If the request relates to employment authorization, the request must demonstrate that the need for the applicant to be authorized to work is critical to the mission of the requesting agency or department, and goes beyond a general need to retain a particular worker or person. For example, an applicant for employment authorization may warrant expedited processing based on government interests when the applicant is a victim or witness who is cooperating with the government and needs employment authorization because the respective agency is seeking back pay or reinstatement in court proceedings.

5. Clear USCIS Error

USCIS may consider an expedite request based on clear USCIS error when a requestor establishes an urgent need to correct the error. For example, an applicant who receives an Employment Authorization Document with incorrect information that prevents them from being able to work may request a replacement document on an expedited basis if USCIS caused the error.[6]

B. How to Request Expedited Processing

The process to request expedited processing may vary by form type and the office that has jurisdiction over the benefit request. USCIS provides specific information on submitting expedite requests on the Expedite Requests webpage.
Benefit requestors must demonstrate their need for expedited processing. Generally, USCIS requires documentation to support expedite requests. When additional documentation is needed, USCIS asks the requestor to submit supporting evidence.

1. Premium Processing

​A benefit requestor cannot request expedited processing for petitions and applications where premium processing service is available for their filing category unless they meet the exception for certain nonprofit organizations.

A benefit requestor that is designated as a nonprofit organization by the IRS seeking a beneficiary whose services are needed in furtherance of the cultural or social interests of the United States may request that the benefit it seeks be expedited without a fee, even if premium processing is available for that benefit.[7] USCIS retains discretion not to expedite the benefit request. The benefit requestor may also request premium processing for the benefit.

C. How USCIS Processes Requests for Expedited TreatmentUsing its discretion, USCIS considers expedite requests according to the criteria and circumstances described above. Not every circumstance that fits under the criteria or examples above necessarily results in expedited processing.[8]

Circumstances that Impact USCIS' Ability to Expedite

Some circumstances may prolong or inhibit USCIS’ ability to expedite certain benefit requests. Examples include, but are not limited to, when:
  • The benefit requestor must perform a certain action or submit additional documentation or evidence, such as attend a biometric services appointment, be interviewed, or complete any required immigration medical examination;[9]
  • There is a required background check that remains pending with a third-party agency;
  • An application or petition requires an on-site inspection;[10] or
  • An application or petition is dependent on the adjudication of a principal’s application or petition.

Responding to Expedite Requests

USCIS generally sends a response to expedite requests that are submitted through the Contact Center. However, to increase efficiency in processing expedite requests, USCIS generally does not provide justifications regarding expedite decisions.

Requestors in Removal Proceedings

Expedited processing of benefit requests for noncitizens with final orders of removal or noncitizens in removal proceedings is coordinated between USCIS and U.S. Immigration and Customs Enforcement (ICE).[11]

USCIS Policy Manual.
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]]><![CDATA[New USCIS Fee Exemptions Effective April 1, 2024]]>Mon, 25 Mar 2024 04:04:30 GMThttps://law-visa-usa.com/blog-usa-immigration-law-updates/new-uscis-fee-exemptions-effective-april-1-2024On January 31, 2024, USCIS Published its final rule on fee changes for applications, due to take effect on April 1, 2024 (“New Fee Rule”).

The New Fee Rule can be found in the Federal Register at 89 Fed. Reg. 6,194 (Jan. 31, 2024), and USCIS has published Frequently Asked Questions at https://www.uscis.gov/forms/filing-fees/frequently-asked-questions-on-the-uscisfee-rule.

USCIS also published a new fee schedule reflecting the New Fee Rule, available here: https://www.uscis.gov/g-1055. Several forms and instructions will also be updated as a result of the New Fee Rule. Although the New Fee Rule will result in increased fees for many applications, it eliminates most application fees for immigrant survivors of abuse, crime, and human trafficking (“survivors”), without the need to file a fee waiver request.

​The New Fee Rule also provides that applications filed online1 where a fee is required are eligible for a $50 discount. This practice alert will explain which categories and forms will be eligible for fee exemptions under the New Fee Rule; address changes to the fee waiver policy that also benefit survivors; and identify some unknowns that need clarification. 

USCIS also provided a new guidance how to prepare and submit Form I-912, Fee Waiver.

ALERT: On March 19, 2024, opponents of the New Fee Rule filed a lawsuit in Federal District Court in Colorado, challenging the regulation under the Federal Antideficiency Act and the Administrative Procedures Act. See Moody, et al. v. Mayorkas, et al., Case No. 1:34-cv-00762- REB (D. Colo. Mar. 19, 2024).

At the time of writing, the New Fee Rule is still set to take effect on April 1, 2024, but people should stay tuned for updates as this lawsuit progresses.

​Please read more here.]]><![CDATA[USCIS Updates Policy Manual on F, M Student Visa International Students’ Intent To Depart]]>Thu, 21 Mar 2024 04:41:08 GMThttps://law-visa-usa.com/blog-usa-immigration-law-updates/uscis-updates-policy-manual-on-f-m-student-visa-international-students-intent-to-departStudents studying in the United States in F or M visa status must have a foreign residence that they have no intention of abandoning. A new USCIS policy manual update has clarified that being the beneficiary of a PERM application or an immigrant visa petition does not mean the student cannot demonstrate their intention to depart after their temporary stay in the United States.

This was a particularly thorny issue before this clarification. For instance, students might be working in OPT or STEM OPT status for an employer that offers to sponsor them for a green card. Students would like to start a sponsorship soon in order to obtain a priority date, even if they might not be able to adjust status to permanent resident status for many years. The problem has been that being sponsored could mean they could not travel abroad and renew their F visas because they would be considered to have nonimmigrant intent. Indeed, they might be “trapped” in the United States until they manage to obtain H or L status (which allows dual intent).
​
USCIS acknowledges in the new guidance:
“The foreign residence requirement should be adjudicated differently for students than for other nonimmigrants. Typically, students lack the strong economic and social ties of more established applicants, and they plan longer stays in the United States. INA 101(a)(15)(F)(i) assumes that the natural circumstances of being a student do not disqualify the student from qualifying for nonimmigrant status. Considerations should include the student’s present intent, not what they might do after a lengthy stay in the United States.”
​
The new policy recognizes that students “are young” and may not be able to explain fully their plans or their post-graduation long-range plans. It should suffice that they have a present intent to leave the United States at the completion of their studies. Of course, nothing is guaranteed, and an officer adjudicating an F or M visa would have to look at all of the circumstances to determine the student’s present intent.

The new policy guidance also clarifies that students with STEM degrees may qualify for STEM OPT even if they will be working for a start-up company. Before this clarification, there were questions on whether a start-up with limited resources could provide the necessary training. What the guidance makes clear is that there is no presumption a start-up cannot sponsor STEM OPT. The company will need to show (among other things) that it has the ability to:
  • Adhere to the training program;
  • Remain in good standing with E-Verify; and
  • Provide compensation to the STEM student that is basically equivalent to the pay provided to similarly situated U.S. workers.
The new policy guidance put together all existing policies regarding students (including, among others, eligibility, transfers, on-and-off campus employment, practical training, and transfers) making finding information about these topics easier. Please see USCIS added 6 chapters and an appendix.

​
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]]><![CDATA[How to Apply for Re-Parole for Up To Two Years for Ukrainians in the USA]]>Wed, 28 Feb 2024 15:44:05 GMThttps://law-visa-usa.com/blog-usa-immigration-law-updates/how-to-apply-for-re-parole-for-up-to-two-years-for-ukrainians-in-the-usa
Eligible Ukrainians Can Now Apply for Re-Parole - Form I-131 with a Filing Fee.

С 11 октября 2024 новая форма заявления I-131 заменила старую форму (edition date 06/17/2024). Новая форма I-131 имеет 14 страниц вместо 5, и много новых опций. Будьте внимательны выбирая опцию для Украины как онлайн так и в бумажной форме. Смотрите на странице 4 в бумажной форме. Госпошлина за эту опцию re-parole for Ukraine $630 (или на $50 дешевле, если подается онлайн). 

Начиная с 27 февраля 2024 украинцы, находящиеся в США по гуманитарному паролю в связи с войной, могут подать заявление на продление пароля (форма I-131 с уплатой госпошлины). ПОСЛЕ того, как пароль продлят, если его утвердят, заявитель может подать заявление на новое разрешение на работу.
​
Важно подать ДО истечения пароля, но можно подать и позже Важно подавать не вместе, а по отдельности: 1) Form I-131, 2) Form I-765 - после утверждения I-131. 

Продление пароля полезно тем украинцам и членам их семей - кто НЕ получили ТПС, у кого нет заявления на грин карту на рассмотрение, и нет других вариантов для лагализации для легализации. Это важно сделать если вы хотите оставаться в легальном статусе, и у вас нет других вариантов.

Предпочтительно подавать онлайн.

Каждый член семьи подает отдльно со своего аккаунта. Заявления не зависят друг от друга.

Пароль продлят на два года с даты истечения текущего пароля.

Утверждение не гарантировано. 

Только ЕСЛИ утвердят пароль,можно будет подавать на разрешение на работу по этой категории. Или вы можете подавать на разрешение на работу по ТПС, если у вас есть статус TPS/

Помните, что с 1 апреля 2024 вступают в силу новые госпошлины.

​
Начиная с 27 февраля 2024 украинцы, находящиеся в США по гуманитарному паролю в связи с войной, могут подать заявление на продление пароля (форма 131 с уплатой госпошлины, которая в настоящее время 575). ПОСЛЕ того, как пароль продлят, если его продлят, заявитель сможет подать заявление на новое разрешение на работу.
Важно подать ДО истечения пароля. Важно подавать не вместе, а по отдельности: 1) Form I-131 - госпошлина $575, 2) Form I-765 - после утверждения I-131. Госпошлина $410.
С 1 апреля 2024 вступают в силу новые госпошлины.

Beginning Feb. 27, 2024, certain Ukrainian citizens and their immediate family members displaced by the war and paroled into the United States on or after Feb. 11, 2022, will be able to apply for a new period of parole (also known as re-parole) for up to two years. USCIS will consider these applications on a discretionary, case-by-case basis for urgent humanitarian reasons or significant public benefit. To apply for re-parole, eligible applicants should submit Form I-131, Application for Travel Document, with the appropriate filing fee through a USCIS online account to save time and reduce errors commonly found on paper-filed forms that can lead to delays. Once approved for re-parole, Ukrainians can then apply for an initial or renewal Employment Authorization Document with USCIS. 

To be eligible for re-parole under this process, you must demonstrate the following: 
  • That you are a Ukrainian citizen or their immediate family member who was paroled into the United States on or after Feb. 11, 2022; 
  • That there are continued urgent humanitarian reasons or significant public benefit for issuance of a new period of parole, including the urgent humanitarian reasons or significant public benefit factors identified above, as well as any additional factors; 
  • That you warrant a favorable exercise of discretion; 
  • That you are physically present in the United States; 
  • That you have complied with the conditions of the initial parole; and 
  • That you clear biographic and biometric background checks. 
You can find your initial date of parole on your Form I-94, Arrival/Departure Record, issued by U.S. Customs and Border Protection.
It is important that you file your application for re-parole before the end of your initial parole period. If circumstances allow, USCIS recommends filing your application for re-parole no later than 60 days before the last day of your initial parole period.  

Required Documents
You must use Form I-131 to request re-parole. You can submit Form I-131 online or on paper by mail. You do not need to file Form I-134, Declaration of Financial Support, or Form I-134A, Online Request to be a Supporter and Declaration of Financial Support, as a supporter is not required for re-parole. Regardless of whether you apply for re-parole online or on paper by mail, you must provide documentation to confirm your initial period of parole and identity, including your photo, name, and date of birth. Examples include: 
  • Form I-94; 
  • A copy of both sides of your USCIS-issued Employment Authorization Document (EAD), if you applied for and received one; 
  • A copy of both sides of your U.S. government-issued driver’s license or U.S. government- issued ID, if you applied for and received one; or 
  • A copy of the identity (biographical) page of your passport and copies of all admission and parole stamps in your passport for entries into the United States. Please note that children may be included in a parent’s Ukrainian passport; in such cases, the children’s information will not be on the identity page. 
If you submit any document containing information in a foreign language to USCIS, you must include a full English language translation that the translator has certified as complete and accurate and include the translator’s certification that they are competent to translate from the foreign language into English. 

Employment Authorization
If USCIS approves your application for re-parole, you can then apply separately for a new EAD, for the duration of your new period of parole, by submitting Form I-765, Application for Employment Authorization, to USCIS after they approve your re-parole.

If you file Form I-765 before grant of re-parole, USCIS may deny your Form I-765, and will not refund any associated fees. You can apply for an EAD through a USCIS online account.  

While their new EAD application is pending, parolees who have received re-parole may be able to show their new Form I-94 (issued following the grant of re-parole) as acceptable evidence of identity and employment authorization for a period of up to 90 days from the date they are hired (or for reverification of employment eligibility when the initial EAD expires).  To use the I-94 for this purpose, a parolee must have been:  
  • Granted re-parole as a certain Ukrainian citizen or an immediate family member;  
  • Have a most recent date of entry on or before Sept. 30, 2023; and  
  • Have a new I-94 with “UHP” listed as the class of admission.  
Within 90 days, the employee must present an unexpired EAD or unrestricted Social Security card and a List B identity document such as a state-issued driver’s license or identification card to meet the Form I-9 requirements.   

Have You Moved? 
As a condition of your parole, you must update your address with USCIS each time you move and within 10 days of moving. We strongly encourage you to change your address through your USCIS online account. This will help ensure you receive all correspondence and benefits from us in a timely manner and avoid possible delays.  
​
Frequently Asked Questions 
What do I need to know to complete the Form I-131 for re-parole? 
 On the online form, this will be the first question under the first section, called “Basis of Eligibility.” In the same section you must also select “yes” to the question, “Are you applying for re-parole?” 
  
On the paper form, this option is located in part 2, item 1.e. You also must write “Ukraine Re-Parole” at the top of the form if you file on paper and mail your form to the designated filing location. 
  
For detailed instructions on how to apply for re-parole under this process, visit the Re-Parole Process for Certain Ukrainians webpage. 
 

How much does it cost to apply for re-parole? 
The current Form I-131 filing fee is $575. There is no cost for biometric services. If you want to request a fee waiver, you must file Form I-131 on paper. You cannot apply for re-parole online if you are submitting a fee waiver request.  
  
Note: Our fees will be changing on April 1, 2024. Before filing, you should always check for the most up-to-date filing fee by visiting the Form I-131 page. 
 

Do I need to apply for a new EAD to be able to continue working? 
Yes. If your application for re-parole is approved, you may file Form I-765 through your USCIS online account. Do not file your Form I-765 until after we approve your re-parole application. Eligible parolees whose Form I-765 is approved will receive an EAD that they can present to their employer for Form I-9, Employment Eligibility Verification.  
  
If you are approved for re-parole, you may be able to use your updated I-94 as an acceptable identity and work authorization document for a limited time while USCIS adjudicates your Form I-765, if you were paroled on or before Sept. 30, 2023.  Individuals who receive a Form I-131 approval notice showing a new period of parole should visit the U.S. Customs and Border Protection Form I-94 website to view and print a copy of their new Form I-94. If USCIS approves your re-parole application, the updated I-94 will show a “class of admission” of “UHP.” 
  
For parolees who are granted re-parole and whose new, unexpired Form I-94 includes a UHP class of admission and a “Most Recent Date of Entry” on or before Sept. 30, 2023, the Form I-94 is an acceptable List A receipt that shows their identity and employment authorization for Form I-9, Employment Eligibility Verification. This satisfies the Form I-9 requirement for 90 days from the date of hire (or in the case of reverification, the date employment authorization expires). 
 
After the 90-day period, parolees must present an unexpired EAD, or unrestricted Social Security card and 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). We recommend filing Form I-765 as soon as we approve your re-parole application. USCIS will provide additional guidance to employers about completion of the Form I-9. 
  

My first EAD is expiring soon. Will USCIS waive the filing fee for my second EAD? 
No. While USCIS did not initially require a filing fee for most of the parolees who are now eligible to apply for this process, you must submit Form I-765 for your second EAD, and include the current filing fee of $410. Before you file, check for the most up-to-date filing fee by visiting the Form I-765 page.  
  
If you want to request a fee waiver, you must file Form I-765 on paper. You cannot apply for an EAD online if you are submitting a fee waiver request. 
 

If I request a fee waiver, will it affect my application? 
 
No. Requesting a waiver of the Form I-765 fee does not affect the adjudication of your employment authorization. 
 

Do I need to file any other forms to apply for re-parole? 
No. You only need to file Form I-131 with the required supporting documents to apply for re-parole.  
 

How soon can I file for re-parole? 
 
It is important that you file your application for re-parole before the end of your initial parole period. If circumstances allow, USCIS recommends filing your application for re-parole no later than 60 days before the last day of your initial parole period. We will be prioritizing cases based on parole expiration dates. 
 

What if my initial parole expires while my re-parole application is pending?  After your initial parole expires, you no longer are in an authorized period of stay unless you have been granted an immigration status, such as asylum or TPS, or are otherwise in an authorized period of stay, such as if you have a pending asylum, TPS, or Green Card application. We encourage you to file your re-parole application as soon as possible. 


Action Items 
  • Create your free USCIS online account today to apply for re-parole. By applying online, you can prevent common mistakes on your forms. If you already have an account, confirm that you have access to it. Through a USCIS online account, you can check the status of your case, access your notices from USCIS, communicate with us, and respond to requests for evidence. Even if you plan to apply for re-parole and for a new EAD by paper, you are still encouraged to create a USCIS online account to check on your case status and access USCIS notices. 
  • Update your address through your USCIS online account or follow the information provided on our How to Change Your Address webpage if you are filing on paper. This will help to ensure you receive all correspondence and benefits in a timely manner. 
  • Review and ensure completion of all attestation requirements through your USCIS online account, including:
    • An attestation that you have completed vaccine requirements or are eligible for an exception to vaccine requirements for measles, polio, and the first dose of an FDA-approved or -authorized COVID-19 vaccine or a WHO-Emergency use listed (EUL) COVID-19 vaccine. 
    • An attestation that you received a medical screening for tuberculosis, including an Interferon-Gamma Release Assay (IGRA) test, within 90 days. 
  • Gather all required documents. 
  • Timely apply for re-parole before your initial parole period ends.  
  • Learn more about the benefits of filing online today. 
Important Resources 
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]]><![CDATA[Immigration Court Backlog Reached a Breaking Point of 3.2 million cases]]>Mon, 05 Feb 2024 23:52:32 GMThttps://law-visa-usa.com/blog-usa-immigration-law-updates/immigration-courts-backlog-reached-a-breaking-point-of-32-million-cases ​Immigrants are now far more likely to face the complexities of the immigration court system alone, without an attorney. As of December 2023, only 30% of immigrants with pending cases have immigration attorneys, down from 65% just four years ago. There are not enough judged and immigration courts.

This new data comes from Syracuse University’s Transactional Records Access Clearinghouse (TRAC). On January 24, TRAC published data showing that representation rates at U.S. immigration courts have decreased significantly. These trends highlight concerns about migrants’ ability to obtain an attorney to navigate our immigration system.

Federal law generally provides immigrants the right to secure legal representation before federal immigration agencies, but immigrants must pay the cost—or secure the assistance of a pro bono (free) attorney, if they can find one. There is no right to have a free lawyer in Immigration Court.

he assistance of an attorney can be crucial to succeeding in one’s case. For example, in removal proceedings, immigrants not subject to immigration detention are five times more likely to obtain relief if they are represented. Attorneys also contribute to efficiencies in removal proceedings, including fewer hearings and more successful claims.

Cases before the immigration courts have grown substantially in the last decade. In 2013, there were 344,230 pending cases. Now the backlog stands at more than 3.2 million cases.

This is the result of many reasons. Recently, however, as undocumented migrant arrivals increase, a dramatic increase in newly filed cases during the past year--nearly 1.5 million—are causing concern about whether the supply of immigration attorneys can meet the current demand by asylum seekers.

In addition, many of those filing the asylum claims, don't see it necessary to consult or hire an attorney. Many migrants who spent US$15,000-$50,000 and more to travel to the USA to illegally cross the Southern border (many arriving from Asia or Europe), incorrectly assume that the lawyer will be provided to them for free, or take for granted that their status will be approved, or simply don't care as long as they are in the USA. Often, ethical attorneys refuse representation when the prospective clients have no legitimate claim for immigration benefits besides being interested in living in the United States. As a result, currently, only about 30% of immigrants with cases in Immigration Court have attorneys.

There is a deep and growing crisis at the Southern border, affecting our already ineffective immigration system, and creating many national security risks.


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]]><![CDATA[New USCIS Policy on I-539 Untimely Filed Extensions of Stay and Change of Status Requests]]>Sun, 28 Jan 2024 22:34:48 GMThttps://law-visa-usa.com/blog-usa-immigration-law-updates/new-uscis-policy-on-i-539-untimely-filed-extensions-of-stay-and-change-of-status-requestsOn January 24, 2024, U.S. Citizenship and Immigration Services (USCIS) is issued policy guidance in the USCIS Policy Manual to address when USCIS may, in its discretion, excuse untimely filed extensions of stay and change of status requests.

Generally, certain nonimmigrants present in the United States admitted for a specified period of time, or their petitioners, may request an extension of their admission period in order to continue to engage in those activities permitted under the nonimmigrant classification in which they were admitted.1 Also, certain nonimmigrants present in the United States, or their petitioners, may seek to change their status to another nonimmigrant classification if they meet certain requirements.

In general, USCIS does not approve an extension of stay or change of status for a person who failed to maintain the previously accorded status or where such status expired before the filing date of the application or petition. These requests must be filed while a nonimmigrant is still in status,

If certain conditions are met, however, USCIS, in its discretion, may excuse the failure to file before the period of authorized status expired. This guidance, contained in Volume 2 of the Policy Manual, is effective immediately and applies prospectively to applications or petitions filed on or after that date.

The guidance contained in the Policy Manual is controlling and supersedes any related prior guidance on the topic.

Policy Highlights

• Provides that USCIS, in its discretion and under certain conditions, may excuse the failure to timely file extensions of stay and change of status requests if the delay was due to extraordinary circumstances beyond the control of the person.

• Clarifies that extraordinary circumstances may include but are not limited to: where the delay was due to a slowdown or stoppage of work involving a strike, lockout, or other labor dispute; 
or where the primary reason for the late filing is due to a lapse in government funding supporting those adjudications.

Summary of Changes

Affected Section: Volume 2 > Part A > Chapter 4 > Section A, Extension of Stay or Change of Status • Adds a new italicized subsection “Requirements to Timely File a Request to Extend Stay or Change Status.” USCIS may also make other minor technical, stylistic, and conforming changes consistent with this update. Citation Volume 2: Nonimmigrants, Part A, Nonimmigrant Policies and Procedures, Chapter 4, Extension of Stay, Change of Status, and Extension of Petition Validity [2 USCIS-PM A.4]. 

Requirements to Timely File a Request to Extend Stay or Change Status
In general, USCIS does not approve an extension of stay or change of status for a person who failed to maintain the previously accorded status or where such status expired before the filing date of the application or petition.[5] USCIS, in its discretion, may excuse the failure to file before the period of authorized status expired where the requester demonstrates within the extension of stay or change of status request that:
  • The delay was due to extraordinary circumstances beyond the person’s control;
  • The length of the delay was commensurate with the circumstances;
  • The person has not otherwise violated their nonimmigrant status;
  • The person remains a bona fide nonimmigrant; and
  • The person is not the subject of removal proceedings and, in the case of extensions of stay, is also not the subject of deportation proceedings.[6]
In general, subject to its discretion, examples of what USCIS considers extraordinary circumstances beyond the control of the person may include, but are not limited to:
  • Where the person remained in the United States after the expiration of the period of admission due to a slowdown or stoppage of work involving a strike, lockout, or other labor dispute; or
  • Where the primary reason for the late filing is the inability to obtain a certified labor condition application or temporary labor certification due to a lapse in government funding supporting those adjudications.
If USCIS approves an untimely filed application or petition to extend an applicant’s or beneficiary’s stay, the approval is effective as of the date of the expiration of the prior nonimmigrant admission period.[7] When USCIS approves a late filed application for a change of status, the change of status takes effect on the approval date. USCIS considers the applicant or beneficiary of an approved untimely change of status request to have maintained lawful status during the period USCIS excused.[8]

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]]><![CDATA[USCIS Filing Fees Will Increase on April 1, 2024]]>Tue, 23 Jan 2024 18:29:28 GMThttps://law-visa-usa.com/blog-usa-immigration-law-updates/uscis-filing-fees-will-increase-in-2024
In 2020 when USCIS planned to increase its filing fees, the court blocked it. Since then, USCIS deferred its proposed filing fee increase until 2024.

This increase will come on top of the increased premium processing fees that will go into effect on Feb. 26, 2024. The premium processing fee increase is approximately 12%. Some of the proposed general filing fee increases went well beyond that.
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The USCIS' budget is fee-based and the increased fees were proposed to recover operating costs and decrease backlogs.

Effective April 1, 2024, the USCIS filing fees will increase. 

New schedule of fees is published in the Federal Register here.

Adjustment of Status (Form I–485) and Family-Based Fees

In this final rule, DHS provides that Form I–485, Application to Register Permanent Residence or Adjust Status, applicants will pay half of the regular Form I–765, Application for Employment Authorization, fee when it is filed with a Form I–485 for which the fee is paid if the adjustment application is pending. See8 CFR 106.2(a)(44)(i). DHS is setting the filing fee for a Form I–765 filed concurrently with Form I–485 after the effective date at $260. See8 CFR 106.2(a)(44)(i).The proposed rule also would have ($1,540). See88 FR 402, 494 (Jan. 4, 2023). In the final rule, DHS provides that, when filing with parents, children will pay a lesser fee of $950 for Form I–485. See8 CFR 106.2(a)(20)(ii).

Naturalization and Citizenship Fees

This final rule expands eligibility for paying half of the regular fee for Form N–400, Application for Naturalization. An applicant with household income at or below 400 percent of Federal Poverty Guidelines (FPG) may pay half price for their Application for Naturalization. See8 CFR 106.2(b)(3)(ii).

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Please see the Schedule of proposed fees below.

March 2024 Update:

ALERT: On March 19, 2024, opponents of the New Fee Rule filed a lawsuit in Federal District Court in Colorado, challenging the regulation under the Federal Antideficiency Act and the Administrative Procedures Act. See Moody, et al. v. Mayorkas, et al., Case No. 1:34-cv-00762- REB (D. Colo. Mar. 19, 2024).

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]]><![CDATA[Who is Eligible for a Visa Interview Waiver in 2024]]>Tue, 09 Jan 2024 17:37:11 GMThttps://law-visa-usa.com/blog-usa-immigration-law-updates/who-is-eligible-for-a-visa-interview-waiver-in-2024On December 21, 2023, the U.S. Department of State (DOS) announced that for 2024 it would continue to waive the requirement of consular interviews for certain nonimmigrant visa applications. However, the 2024 waiver requirements are very different from the 2023 requirements. The 2024 requirements, which took effect January 1, 2024, generally apply to the following:
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  • First-time H-2 visa applicants (temporary agricultural and nonagricultural workers).
  • Others applying for any nonimmigrant visa classification who
    • Were previously issued any nonimmigrant visa except a B visa, and
    • Are applying within 48 months of the expiration date of their most recent nonimmigrant visa.
For 2023, more limited categories were eligible for interview waivers, including students, academic (J) Exchange Visitors, and employment-based and other categories. However, waivers were available for first-time applications as well as renewal applications, and the 48-month time limitation did not apply.
For 2024, all nonimmigrant visa applications except B (Business or Visitor) are eligible for the waiver, but they are limited to renewals unless in the H-2 category, and the visa application must have been made no more than 48 months after the expiration date of the most recent nonimmigrant visa. The current authorization will be reviewed annually and will remain in place until further notice.

Additional eligibility requirements for the interview waiverTo be eligible for an interview waiver, applicants must also meet certain criteria, including that they:
  • apply in their country of nationality or residence.

  • have never been refused a visa (unless such refusal was overcome or waived).

  • have no apparent or potential ineligibility.
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Consular discretion remains
The State Department adds the caveat that consular officers have the discretion to require in-person interviews on a case-by-case basis or because of local conditions. The announcement reminds applicants to check the websites of the applicable embassy or consulate for more detailed information about visa application requirements to be sure that interview waivers are available. Conclusion The interview waiver policy plays an important part of the State Department's efforts to expedite the visa application process. The interview requirement can take time and can delay adjudication. Again, applicants should check with the applicable U.S. embassy or consulate to determine whether, and to what extent, the interview waiver policy has been implemented.

​Read more at the DOS website.

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]]><![CDATA[USCIS Premium Processing Fees Increase on February 26 2024]]>Fri, 05 Jan 2024 15:15:30 GMThttps://law-visa-usa.com/blog-usa-immigration-law-updates/uscis-premium-processing-fees-increase-on-january-26-2024USCIS has announced that fees will increase for all requests for Premium Processing. The increases will apply to all requests for premium processing that are postmarked on or after February 26, 2024. According to the USCIS, one reason for the increase is to account for inflation in 2021, 2022, and the first half of 2023.

The guaranteed premium processing time for most non-immigrant and immigrant employment-based petitions is 15 calendar days (45 days for certain Form I-140 Immigrant Petitions) and 30 days for Form I-539 and I-765 applications filed by individuals.

The following table, provided by the USCIS, shows the fees currently in effect as well as the fees that will apply starting February 26, 2024:

Read USCIS' announcement here.

If USCIS receives a Form I-907 postmarked on or after Feb. 26, 2024 with the incorrect filing fee, we will reject the Form I-907 and return the filing fee. For filings sent by commercial courier (such as UPS, FedEx, and DHL), the postmark date is the date reflected on the courier receipt.

ALERT: Starting June 26, 2024, 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.
As of June 13, 2023, USCIS has been accepting 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.


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