On April 2, 2025, U.S. Citizenship and Immigration Services (USCIS) announced that under a Trump administration executive order, it has updated the USCIS Policy Manual to state that it only recognizes two biological sexes: male and female.

Under this guidance, USCIS considers a person’s sex as “that which is generally evidenced on the birth certificate issued at or nearest to the time of birth. If the birth certificate issued at or nearest to the time of birth indicates a sex other than male or female, USCIS will base the determination of sex on secondary evidence.”

USCIS said it will not deny benefits solely because the benefit requestor “did not properly indicate his or her sex.” However, USCIS noted that it “does not issue documents with a blank sex field,” so “if a benefit requestor does not indicate his or her sex or indicates a sex different from the sex on his or her birth certificate issued at the time of birth (or issued nearest to the time of birth), there may be delays in adjudication.”

USCIS said it “may provide notice to benefit requestors if it issues a USCIS document reflecting a sex different than that indicated by the benefit requestor on the request.”

This guidance applies to benefit requests pending or filed on or after April 2, 2025, USCIS said, adding that the guidance in the Policy Manual “is controlling and supersedes any related prior guidance.”

In 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.

Supreme Court Ruled That Texas and Louisiana Lack Standing to Block Biden Immigration Enforcement Guidelines
On June 23, 2023, the U.S. Supreme Court ruled 8-1 in U.S. v. Texas that Texas and Louisiana lacked standing to block Biden administration immigration enforcement guidelines that prioritize national security, public safety, and border security threats over focusing on deporting anyone in the United States without authorization.
Justice Kavanaugh wrote, “The States have brought an extraordinarily unusual lawsuit. They want a federal court to order the Executive Branch to alter its arrest policies so as to make more arrests. Federal courts have not traditionally entertained that kind of lawsuit; indeed, the States cite no precedent for a lawsuit like this.” Justice also said that the Executive Branch “does not possess the resources necessary to arrest or remove all of the noncitizens covered by” federal law. “For the last 27 years since [the laws] were enacted in their current form, all five Presidential administrations have determined that resource constraints necessitated prioritization in making immigration arrests.” Justice Alito dissented.
Homeland Security Secretary Alejandro Mayorkas said that the Department of Homeland Security (DHS) would reinstate the guidelines, which were paused last summer by the Supreme Court. He said this would “enable DHS to most effectively accomplish its law enforcement mission with the authorities and resources provided by Congress.” Texas Gov. Greg Abbott said that Texas would “continue to deploy the National Guard to repel [and] turn back illegal immigrants trying to enter Texas illegally.”
US. v. Texas (June 23, 2023). https://www.supremecourt.gov/opinions/22pdf/22-58_i425.pdf
“The Supreme Court Sides With the Biden Administration in a Fight Over Immigration,” National Public Radio (June 23, 2023). https://www.npr.org/2023/06/23/1182015382/supreme-court-ruling-immigration

On June 14, 2023, U.S. Citizenship and Immigration Services (USCIS) released its policy guidance on the eligibility criteria for initial and renewal applications for employment authorization documents in compelling circumstances based on existing regulatory requirements at 8 C.F.R §204.5(p).
Specifically, for an applicant to be eligible for an initial employment authorization document (EAD) based on compelling circumstances, the applicant must meet the following requirements:

• The principal applicant is the beneficiary of an approved I-140, Immigrant Petition for Alien Worker in the 1st, 2nd, or 3rd employment-based preference category;
• The principal applicant is in valid E-3, H-1B, H-1B1, O-1, or L-1 nonimmigrant status or authorized grace period when the applicant files Form I-765, Application for Employment Authorization;
• The principal applicant has not filed an adjustment of status application;
• An immigrant visa is not available to the principal applicant based on the applicant’s priority date according to the Final Action Date Chart in U.S. Department of State’s Visa Bulletin when the Form I-765 is filed;
• The applicant and their dependents provide biometrics as required;
• The applicant and their dependents have not been convicted of a felony or two or more misdemeanors; and
• USCIS determines, as a matter of discretion, the principal applicant demonstrates compelling circumstances that justify the issuance of employment authorization.

The guidance from USCIS provides a non-exhaustive list of situations that could lead to a finding of compelling circumstances for principal applicants and their defendants. Some of them include: serious illness and disability, employer dispute and retaliation, other substantial harm to the applicant, or significant disruption to the employer.

This guidance also provides details on the type of evidence an applicant may submit to demonstrate one of the outlined compelling circumstances. A principal applicant who has an approved I-140, but to whom an immigrant visa is not available and who has lived in the United States for a long period of time, could provide evidence such as school or higher education enrollment records, mortgage records, or long-term lease records to support a finding of compelling circumstances. As an example, a compelling circumstance could be found where due to a job loss, the principal applicant’s family would be forced to sell their home for a loss, pull their children out of school, and relocate to their home country.

Recipients of a compelling circumstances EAD will be in a period of authorized stay in the U.S. and will not be maintaining their nonimmigrant status. Thus, recipients cannot extend their H-1B status in the U.S.

​Read more here and here.

U.S. Citizenship and Immigration Services (USCIS) is revising policy guidance in the USCIS Policy Manual to clarify that benefit requestors may select their gender on nearly all USCIS forms (or change a prior gender selection) without the need to specifically provide or match supporting documentation.
This update applies to both initial benefit requests as well as requests to change gender markers on USCIS-issued documents after the initial submission. This policy manual update does not apply to Form N-565, Application for Replacement Naturalization/Citizenship Document. Individuals requesting to change their gender marker on a previously issued Certificate of Naturalization or Certificate of Citizenship must submit Form N-565 with documents supporting their request to change their gender marker. See 8 CFR 103.2(a)(1).
Benefit requestors seeking to change their gender marker after their initial filing should refer to the Updating or Correcting Your Documents webpage. Currently, the only gender markers available are “Male” (M) or “Female” (F). DHS is working on options to include an additional gender marker (“X”) for another or unspecified gender identity. USCIS will update its forms and the Policy Manual accordingly.
This guidance, contained in Volumes 1, 11, and 12 of the Policy Manual, is effective immediately. 
​Memo and the new policy.

USCIS Updates Policy on Time Frames for Paper-Based Filings and Responses Ending on Saturdays, Sundays, or Federal Holidays 

​USCIS is updating the USCIS Policy Manual to address situations when the last day to file a benefit request or respond to a USCIS action falls on a Saturday, Sunday, or federal holiday. In these situations, USCIS will consider a filing or response submitted on paper timely if we receive it by the end of the next business day. While the receipt date for these cases will continue to reflect the date USCIS physically received the request, USCIS will consider the benefit request timely filed.

In some cases, benefit requestors must file a benefit request or submit a response to a USCIS action within a certain time period prescribed by statute, regulation, or form instructions. Examples include filing a paper-based benefit request on the last day before a requestor’s or beneficiary’s birthday or the last day of a qualifying time period for filing, or responding to a Request for Evidence or a notice of intent to deny, rescind, revoke or terminate within the specified time frame for a response.

USCIS is pursuing several ways to increase flexibility related to filing deadlines, including this Policy Manual update. This update is effective immediately and will apply to all benefit requests or responses to a USCIS action that we receive on paper on or after March 29, 2023. This update does not affect electronic filings or responses submitted electronically, which we consider received immediately upon submission. We are not applying this policy retroactively.
​
Visit the Policy Manual for Comment page to comment on this update. 

Briefly in Russian:

Если вы подали петицию или заявление в USCIS, или ваш ответ на RFE был получен в выходной или праздничный день, то дата получения будет продлена до следующего рабочегно дня, что имеет значение если ответ на RFE был получен в последний день deadline и этот день нерабочий. Дата received on останется тем днем когда заявление посланное по почте было реально получено в USCIS. 

On December 23, 2022, USCIS released a new edition of Form I-485, Application to Register Permanent Residence or Adjust Status (aka Application for a Green Card), because a new public charge ground of inadmissibility rule went into effect on December 23, 2022.

USCIS advised that any I-485 application filed on or after December 23, 2022, must use the new version of Form I-485. Failure to do so will result in the USCIS rejecting the filing.

While a new Form I-485 is required, the form I-864, Affidavit of Support remains the same.

On December 19, 2022, USCIS issued a follow-up Policy Alert regarding implementing the new public charge rule visa changes to the USCIS Policy Manual and provided a resources page for reference.

On September 8, 2022, the U.S. Department of Homeland Security (DHS) issued a new final rule to be published in the Federal Register on September 9, 2022, addressing the public charge ground of inadmissibility found at INA §212(a)(4). The final rule came into effect on December 23, 2022. The final rule announcement also noted that USCIS would issue a revised Form I-485.

The public charge ground of inadmissibility is found at §212 of the Immigration and Nationality Act, as amended (INA). INA §212 provides several grounds for a noncitizen being considered “inadmissible” to the United States. The public charge ground of inadmissibility applies to applicants for visas, admission, and adjustment of status, unless the noncitizen is exempt. 

INA §212(a)(4)(A) states that a noncitizen “likely at any time to become a public charge is inadmissible.” INA §212(a)(4)(B) states that, at a minimum, adjudicators should consider the applicant’s “age, health, family status, assets, resources, and financial status; and education and skills” when determining whether a noncitizen is likely to become a public charge. Additionally, an adjudicator “may also consider any affidavit of support” under INA §213(a) when applicable, noting that in cases where an affidavit of support is required, a noncitizen’s failure to provide a sufficient affidavit of support from the petitioner and any additional sponsor(s) makes the noncitizen inadmissible regardless of other factors.

For decades, USCIS interpreted the meaning of “likely to become a public charge” based on a 1999 Interim Field Guidance release. Under this guidance, a noncitizen would be considered likely to become a public charge if DHS determined that they were likely to become primarily dependent on the government for subsistence. For example, it would apply if the individual was likely to become dependent on direct cash assistance, like Supplemental Security Income (SSI) or Temporary Assistance for Needy Families (TANF), or to individuals who rely on Medicaid-financed “long-term institutionalization,” such as a nursing or psychiatric facility. A 2019 rule put into effect by the Trump Administration sought to change this longstanding guidance, which significantly expanded the policy to include anyone who used a broader array of public benefits for more than 12 cumulative months over any 36 months. The courts held up the 2019 rule, but the Biden Administration ultimately rescinded it. The “new” 2022 public charge rule essentially restores the status quo.

Under the new rule, “likely at any time to become a public charge” means likely at any time to become primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or long-term institutionalization at government expense. According to the preamble to the final rule, primarily dependent “connotes significant reliance on the government for support, and means something more than dependence that is merely transient or supplementary.”

For purposes of a public charge inadmissibility determination, “public cash assistance for income maintenance” means:

Supplemental Security Income (SSI);
Cash assistance for income maintenance under the Temporary Assistance for Needy Families (TANF) program; or
State, tribal, territorial, or local cash benefit programs for income maintenance, commonly called “General Assistance.”.

For a public charge inadmissibility determination, “long-term institutionalization at government expense” means government assistance for long-term institutionalization (in the case of Medicaid, limited to institutional services under section 1905(a) of the Social Security Act) received by a beneficiary, including in a nursing facility or mental health institution. Long-term institutionalization at government expense is the only category of Medicaid-funded services (limited to institutional services under section 1905(a) of the Social Security Act) considered in a public charge inadmissibility determination.

USCIS Adjudicators, using a totality of the circumstances test, will consider the statutory minimum factors, an affidavit of support when required, and the additional factor of current and/or past receipt of public benefits. However, this additional factor is limited to the applicant’s receipt of public cash assistance for income maintenance or long-term institutionalization at government expense, with several exemptions, such as the Supplemental Nutrition Assistance Program (SNAP).

Importantly, any USCIS denial under the public charge inadmissibility ground must be in writing, “reflect consideration of each of the factors outlined (under the rule), and specifically articulate the reasons for the officer’s determination.”

Unless specifically exempted, all applicants for adjustment of status, including those applying through family-based petitions, employment-based petitions, and diversity applications, are subject to the public charge ground of admissibility. The appendices to Part G of Volume 8 of the USCIS Policy Manual provide helpful charts and guidance regarding when an affidavit of support is necessary.

The vast majority of both employment-based and family-based petitions are subject to the public charge ground of inadmissibility. In the employment-based categories, noncitizens are generally subject unless the applicant is adjusting based on an employment-based petition where the petition is filed by either a qualifying relative, or an entity in which such relative has a significant ownership interest (5 percent or more).

The applicant must also qualify for a category exempted under INA §212(a)(4)(E) (T nonimmigrants, U nonimmigrants, and VAWA self-petitioners, for example) at both the time of filing and adjudication of Form I-485. The applicant is not subject to INA 212(a)(4) (but is still required to file Form I-864).  A qualifying relative means a husband, wife, father, mother, child, adult son, adult daughter, brother, or sister. 

Even where exempt, some noncitizens applying to adjust status may still be required to submit an Affidavits of Support under Section 213A of the INA. This includes noncitizens whose employment-based petition was filed by a relative or by an entity in which the noncitizen’s relative has a significant ownership interest.

The public charge ground of inadmissibility does not apply to certain applicants for visas, admission, and adjustment of status applicants based on statutory or regulatory authority. For example:

Asylees and refugees
Applicants adjusting under the Cuban Adjustment Act
Special immigrant juveniles
Applicants seeking Temporary Protected Status (TPS),
Victims of human trafficking (T nonimmigrants),
Victims of qualifying criminal activity (U nonimmigrants),
Certain ambassadors and diplomats.

The new 12/23/22 edition of the I-485 Form includes a series of new questions in Part 8:

Q 61.  Are you subject to the public charge ground of inadmissibility under INA section 212(a)(4)? This question is challenging for any applicant. USCIS includes appendices to Volume 8, Part G of its Policy Manual regarding the interpretation of this question for employment-based, family-based, special immigrant, refugee, asylee, parolee, and other adjustment applicants. 

Q 62. What is the size of your household? According to the I-485 Form Instructions, the following individuals should be included in your household size:

You;
Your spouse, if physically residing with you;
Your parents, if physically residing with you;
Your unmarried siblings under 21 years of age, if physically residing with you;
Your children as defined in INA 101(b)(1), if physically residing with you;
Any other individuals (including a spouse or child not physically residing with you) who are listed as dependents on your federal income tax return; and
Any other individuals who list you as a dependent on their federal income tax return.

Q 63. Indicate your annual household income.

Applicants are instructed to check an income range based on the household’s total income. According to the I-485 Form Instructions, you may include income provided to your household from sources who are not members of your household, including but not limited to alimony or child support. You must exclude any income from Supplemental Security Income (SSI); Temporary Assistance for Needy Families (TANF); State, Tribal, territorial, or local cash benefit programs for income maintenance (often called “General Assistance” in the State context, but which also exist under other names)..

Q 64. Identify the total value of your assets. Applicants are instructed to check the appropriate box for the total value of household assets. When considering the applicant’s financial status, USCIS also considers the noncitizen’s household’s assets and resources, for example, investments or home equity, excluding any assets from illegal activities or sources, such as proceeds from illegal gambling or drug sales.

Q 65. Identify the total value of your household liabilities (such as loans, alimony, and child support payments.). Applicants are instructed to check the appropriate box for the total value of household liabilities. See explanation above.

Q 66. What is the highest degree or level of school you have completed? 

Q 67. List your certifications, licenses, skills obtained through work experience, and educational certificates. According to the I-485 Form Instructions, applicants are to list all of your certifications, licenses, skills obtained through work experience, and educational certificates. This includes but is not limited to workforce skills, training, licenses for specific occupations or professions, foreign language skills, and certificates documenting mastery or apprenticeships in skilled trades or professions. Educational certificates are issued by an educational institution (or a training provider) and certify that an occupation specific program of study was completed.

Q 68.a. Have you ever received Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF), or State, Tribal, territorial, or local, cash benefit programs for income maintenance (often called “General Assistance” in the State context, but which also exist under different names)?

Q 68.b. Have you ever received long-term institutionalization at government expense?

Q 68.c. If you answer to Item Number 68.a. is “Yes,” list the benefit(s) you received, the start and end dates of each period of receipt, and the dollar amount of benefits received.

Q 68.d.      If your answer to 68.b. is “Yes,” list the name, city, and state for each institution, the start and end dates of each period of institutionalization, and the reason you were institutionalized.

Questions 68.a. – 68.d. are only asking about public benefits (in other words, public cash assistance for income maintenance and long-term institutionalization at government expense) you received in the past or are currently receiving at the time the Form I-485 is filed, and where you were/are a listed beneficiary.

Exceptions: Do not include any public benefits for which you are not listed as a beneficiary, even if you assisted with the application. Do not include benefits that you only applied for, or were approved to receive in the future but have not received in the past and/or are not currently receiving. Do not include public benefits you received only on behalf of another individual.

USCIS explained that public assistance for COVID-19 testing, vaccinations, or treatment is not considered in evaluating the public charge. Nor does USCIS consider public assistance in other forms if related explicitly to COVID-19, such as food, housing, cash assistance, rental assistance, tax credits, stimulus payments, unemployment, and financial aid grants to students, the Paycheck Protection Program, and student loan forbearance.

New public charge section of the adjustment application Form I485 added a lot of new questions. In addition, applicants not only swear that all information on the application is correct but also that all information provided with the application is complete, true, and correct.

USCIS may reject or deny an adjustment application for failure to submit requested evidence or supporting documents as stated in the instructions to Form I-485 and as stated in 8 CFR §103.2(b)(1).

Currently, the USCIS Policy Guidance states that noncitizens are not required to submit any specific evidence relating to their household’s income, assets, and liabilities; however, USCIS may request additional evidence on a case-by-case basis if more information is needed to make a public charge inadmissibility determination. The new I-485 changes made it more difficult for applicants to complete forms I-485 by themselves.

Resources:

- New form I485 https://www.uscis.gov/i-485 
- See 8 CFR §212.21(b). USCIS does not consider benefits that are not referenced above when making a public charge inadmissibility determination. See 8 CFR §212.22(a)(3).
- See 8 CFR §212.21(c)
- 8 CFR §213a.1.
- USCIS Policy Manual: https://www.uscis.gov/green-card/green-card-processes-and-procedures/public-charge/public-charge-resources
and here:
https://www.uscis.gov/policy-manual/volume-8-part-g

Question: 
I filed an I-751 application by myself without my abusive US citizen husband's help or signature. My I-751 petition to remove conditions from residency was recently granted on the basis of abuse and extreme cruelty by U.S. citizen spouse. I received my 10-year green card card.  I have been an permanent resident for more than 3 years. 

Can I apply for U.S. citizenship through naturalization after just 3 years, instead of waiting for additional two years?  

Могу ли я подать заявление на американское гражданство через 3 года после первой грин карты, если моя постоянная 10-летняя грин карта была недавно утверждена на основании моей петиции, которую я подала без участия мужа на основании домашнего насилия? Я была резидентом более 3-х лет и не хотелf бы ждать еще два года.


Answer:
Yes, you can! If you filed your I-751, Petition to Remove Conditions from Residency by yourself as a waiver based on abuse and extreme cruelty, it was the only basis for a waiver, and your application was approved. It means that you can submit your N-400 Application for Naturalization after three years instead of five years.

I recommend that you consult an attorney to review your I-751 petition and naturalization eligibility to make sure that you are eligible.

Да, вы можете подать на гражданство после 3-х лет ЕСЛИ ваша петиция I-751 была подана и утверждена на основании только одного основания "домашнее насилие со стороны мужа-американца".

Перед тем как подавать на гражданство через 3 (а не 5 лет), проконсультируйтесь с адвоктом, чтобы убедиться, что вы соответствуете требованиям закона.

Сам закон внизу из Руководства офицеров иммиграционной службы США.


What the law says:

INA sec 319(a) and USCIS Policy Manual Chapter 3 - Spouses of U.S. Citizens Residing in the United States
​
F. Eligibility for Persons Subjected to Battery or Extreme Cruelty1. General Eligibility for Persons Subjected to Battery or Extreme CrueltyOn October 28, 2000, Congress expanded the provision regarding naturalization based on marriage to a U.S. citizen for persons who reside in the United States. The amendments added that any person who obtained LPR status as the spouse, former spouse, or intended spouse[13] of a U.S. citizen who subjected him or her to battery or extreme cruelty may naturalize under this provision.[14]
Specifically, the person must have obtained LPR status based on:

• An approved Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360) as the self-petitioning spouse of an abusive U.S. citizen;
• An approved Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360) as the self-petitioning spouse of an abusive LPR, if the abusive spouse naturalizes after the petition has been approved;[15] or
• Special rule cancellation of removal for battered spouses and children in cases where the applicant was the spouse, or intended spouse of a U.S. citizen, who subjected him or her to battery or extreme cruelty.[16]

A person is also eligible for naturalization under the spousal naturalization provisions if he or she had the conditions on his or her residence removed based on:

• An approved battery or extreme cruelty waiver of the joint filing requirement for Petition to Remove Conditions on Residence (Form I-751), for a conditional permanent resident, if the marriage was entered into in good faith and the spouse was subjected to battery or extreme cruelty by the petitioning citizen or LPR spouse.[17]

2. Exception to Marital Union and U.S. Citizenship Requirements for SpousesA person subjected to battery or extreme cruelty by his or her U.S. citizen spouse is exempt from the following naturalization requirements:[18]

• Married to the U.S. citizen spouse at the time of filing the naturalization application;
• Living in marital union with the citizen spouse for at least 3 years at the time of filing the naturalization application; and
• Applicant’s spouse has U.S. citizenship from the time of filing until the time the applicant takes the Oath of Allegiance.[19]

The spouse must meet all other eligibility requirements for naturalization.[20]

2005 USCIS Memorandum is here.

USCIS is updating guidance in the USCIS Policy Manual regarding Afghan and Iraqi nationals seeking special immigrant classification. The new guidance is effective immediately.
The updated guidance:

• Explains that noncitizens seeking an Afghan Special Immigrant Visa (SIV) on or after July 20, 2022, must file Form DS-157, Petition for Special Immigrant Classification for Afghan SIV Applicants, with the Department of State when they are applying for Chief of Mission approval. In some circumstances, noncitizens must still file a petition with USCIS to pursue an Afghan SIV;
• Updates eligibility criteria to reflect that the employment requirement for an Afghan SIV is now one year and clarifies what type of employment with the International Security Assistance Force qualifies;
• Updates eligibility criteria for surviving spouses and children of deceased principal noncitizens to expand the scope of who may apply for Afghan and Iraqi SIVs;
• In cases where a visa is not immediately available, removes the date limitation to convert an approved petition for an Afghan or Iraqi translator or interpreter to an approved petition for an Iraqi or Afghan employed by or on behalf of the U.S. government; and
• Clarifies statutory requirements that a noncitizen seeking an Afghan or Iraqi SIV must establish that they provided faithful and valuable service to the U.S. government by submitting a positive recommendation or evaluation from their supervisor.

For more information, see the Policy Alert (PDF, 347.6 KB). Visit the Policy Manual Feedback page to provide feedback on this update. USCIS welcomes feedback on this guidance and will consider any feedback received in future updates.

​USCIS Policy Manual is here.
​July 20, 2022 USCIS Policy Alert is here.

USCIS published policy guidance in the USCIS Policy Manual on eligibility, filing, and adjudication requirements addressing Violence Against Women Act (VAWA) self-petitions to update practices and align USCIS policies with recent court decisions.

USCIS updated interpretation of the requirement for "shared residence" to occur during the qualifying spousal or parent-child relationship. Instead, the self-petitioner must demonstrate that they are "residing or have resided with the abuser at any time in the past".

USCIS is also implementing nationwide the decisions in Da Silva v. Attorney General, 948 F.3d 629 (3rd Cir. 2020), and Arguijo v. United States, 991 F.3d 736 (7th Cir. 2021).

Da Silva v. Attorney General held that when evaluating the good moral character requirement, an act or conviction is “connected to” the battery or extreme cruelty when it has “a causal or logical relationship.”

Arguijo v. USCIS allows stepchildren and stepparents to continue to be eligible for VAWA self-petitions even if the parent and stepparent divorced.

Clarifies how USCIS considers the 2-year filing requirement when the self-petitioner’s marriage is terminated, the abusive U.S. citizen family member dies, and the abusive family member loses or renounces U.S. citizenship or LPR status. 

Clarifies that INA 204(a)(2) does not apply when a self-petitioner files a Form I-360 based on a qualifying relationship to an abusive LPR spouse but does apply if the self-petitioner acquires LPR status and subsequently files a family-based spousal petition. 

Provides guidance on special considerations for self-petitions filed subsequent to a Petition for Alien Relative (Form I-130) and an Application to Register Permanent Residence or Adjust Status (Form I-485).

​Citation Volume 3: Humanitarian Protection and Parole, Part D, Violence Against Women Act [3 USCIS-PM D] 

These updates are in accordance with Executive Order 14012: Restoring Faith in Our Legal Immigration System and Strengthening Integration and Inclusion Efforts for New Americans. (https://www.whitehouse.gov/briefing-room/presidential-actions/2021/02/02/executive-order-restoring-faith-in-our-legal-immigration-systems-and-strengthening-integration-and-inclusion-efforts-for-new-americans/)

Briefly in Russian:
Недавно были внесены поправки и изменения в закон ВАВА / VAWA, о помощи жертвам домашнего насилия, и как они могут получить грин карту без помощи абьюзера. Изменения были внесены в официальное Руководство для сотрудников USCIS, которое опублоковано на их сайте.

The new guidance can be found in the USCIS Policy Manual and in USCIS Memo https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20220210-VAWA.pdf

​COVID-19 Update from USCIS:
May 27, 2021: IF YOU ARE FULLY VACCINATED

Due to updated guidance from the CDC, USCIS has updated its visitor policy. (USCIS Visitor Policy). Fully vaccinated individuals no longer have to wear a face covering. Individuals two years old and older who are not fully vaccinated must still wear a face covering.

To be considered fully vaccinated, it must be at least two weeks after receiving a second dose in a two-dose series or at least two weeks after receiving a dose of a single-dose vaccine.

USCIS has eased other requirements for fully vaccinated individuals who do not have COVID-19 symptoms.

Those who have returned from domestic air, international air or cruise ship travel in the past 10 days may enter USCIS facilities if they are fully vaccinated. Individuals who have been in close contact (within six feet for a total of 15 minutes or more) with anyone known to have COVID-19 in the previous 14 days may also enter USCIS facilities if they are fully vaccinated. Healthcare workers who consistently wear an N95 respirator and proper personal protective equipment or equivalent when in contact with COVID-19 positive individuals continue to be exempt from reporting close contact.

In DHS-controlled spaces, this guidance supersedes state, local, tribal, or territorial rules and regulations regarding face coverings.

For more information, see USCIS Policy.

​ALERT: Effective February 24, 2020, USCIS will implement the Inadmissibility on Public Charge Grounds final rule, except in Illinois, where the rule remains enjoined by a federal court as of Jan 31, 2020. DHS has sought a stay of this injunction from the U.S. Court of Appeals for the Seventh Circuit in light of the Supreme Court decision to stay the last nationwide injunctions. USCIS will provide additional guidance if the injunction in Illinois is lifted.

The final rule will apply only to applications and petitions postmarked (or if applicable, submitted electronically) on or after Feb. 24, 2020. For applications and petitions sent by commercial courier (such as UPS, FedEx, and DHL), the postmark date is the date reflected on the courier receipt.

When determining whether an alien is likely to become a public charge at any time in the future, DHS will NOT consider an alien’s application for, certification or approval to receive, or receipt of certain non-cash public benefits BEFORE Feb. 24, 2020. Similarly, when determining whether the public benefits condition applies to applications or petitions for extension of stay or change of status, USCIS will only consider public benefits received on or after Feb. 24, 2020.

USCIS will post updated forms and submission instructions to the USCIS website during the week of Feb. 3 to give applicants, petitioners, and others time to review updated procedures and adjust filing methods. After Feb. 24, except in Illinois, USCIS will reject prior editions of forms if the form is postmarked on or after Feb. 24, 2020. If USCIS receives an application or petition for benefits using an incorrect edition of the forms, the petitioner or alien will need to submit a new application or petition.

DHS remains enjoined from implementing the final rule in Illinois. If the injunction in Illinois is lifted, USCIS will provide additional public guidance.

https://www.uscis.gov/i-864

Public Charge Toolkit.
​

On June 28, 2018, USCIS published Policy Memorandum entitled “Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens.” 

Starting October 1, 2018, USCIS started issuing NTA (referrals for deportation) in some cases where they denied a I-485 or I-539 application and the applicant is out-of-status.

Now, USCIS is expanding its right to issue a NTA to other applications as well. It will result in more cases being referred for deportation (removal) to Immigration Court.

Beginning November 19, 2018, USCIS will apply the memorandum to the following denied applications and petitions:

I-914/I-914A, Application for T Nonimmigrant Status
I-918/I-918A, Petition for U Nonimmigrant Status
I-360, Petition for Amerasian, Widow(er), and
I-360 VAWA Special Immigrant (Violence Against Women Act self-petitions) and 
I-360 Special Immigrant Juvenile Status petitions)
I-730, Refugee/Asylee Relative Petitions when the beneficiary is present in the US
I-929, Petition for Qualifying Family Member of a U-1 Nonimmigrant
I-485 Application to Register Permanent Residence or Adjust Status (with the underlying form types listed above).

U, T, VAWA, SIJS are humanitarian applications. Previously, a denial usually didn't result in deportation. This policy changes on November 19, 2018.

Read here.

In a new lawsuit filed in the U.S. District Court for the Middle District of North Carolina, several colleges and universities have challenged a recently announced new immigration policy, which become effective on August 9, 2018. Lawsuit changes the calculation of the number of days of “unlawful presence” for nonimmigrant foreign students from the date U.S. Citizenship and Immigration Services (USCIS) or an immigration judge finds a violation or orders the student removed to the date the status lapsed.

In 1997, the United States established objective rules that provided visa holders notice. If the authorized period of stay ended on a date certain on which the individual was required to leave the country, unlawful presence began following that date. And for all individuals, unlawful presence began the day after either a government official or immigration judge made a determination that the individual was out-of-status. This provided an opportunity to cure their circumstances and remain in the country or to depart the country within 180 days. Either way, individuals acting in good faith had an opportunity to avoid imposition of a three- or ten-year reentry bar.

Now, based on the USCIS memo, effective August 9, 2018, when a government official or immigration judge determines that an F, J, or M visa holder is out-of-status, the unlawful‑presence clock will be backdated to the day on which the agency concludes that the visa holder first fell out-of-status.

The complaint states that the immigration system “is beset with processing delays, and many of these status determinations are made when an individual is applying for new immigration benefits.” Thus, the new policy’s use of a backdated unlawful-presence clock “will render tens of thousands of F, J, and M visa holders subject to three- and ten-year reentry bars without any opportunity to cure,” the complaint states. “This policy, accordingly, will result in the three- or ten-year banishment of untold numbers of international students and exchange visitors acting in good faith.”

By disrupting the ability of these individuals to continue studying at their schools or continuing their research, teaching, or other scholarly pursuits, the August 2018 policy memorandum fundamentally upsets student-school and employee-school relationships. This results in concrete, significant harms to colleges and universities, including through the loss of irreplaceable community members, loss of tuition dollars, and loss of trained employees. The complaint asserts that the new policy is unlawful for several reasons, including, among other things, that the defendants “failed to undertake the notice and comment required in these circumstances,” such as by not publishing advance notice in the Federal Register and responding to public comments, and by not complying with the Administrative Procedure Act.

​The text of the complaint is here.

On August 28, 2017, USCIS had announced a new policy (effective date 10/02/2017) requiring all adjustment of status applicants seeking employment-based green cards to appear for an interview at a USCIS field office. The adjustment of status application is the final step in the green card process for foreign non-immigrant employees looking to move to permanent resident status.

Prior to this change, which went into effect on October 2, 2017, USCIS required interviews in only 5 to 10 percent of all employment-based adjustment cases.

The new policy applies to all Form I-485 adjustment of status applications filed on or after March 6, 2017, where the underlying immigrant petition is an employment-based Form I-140 (EB-1, EB-2, and EB-3). The USCIS has indicated that adjustment cases filed prior to March 6, 2017, will be adjudicated in accordance with previous procedures.

Because thousands of extra interviews will be conducted annually, there will be additional delays in the processing of these employment-based adjustment applications. USCIS has estimated that these applications will ultimately account for approximately 17 percent of the USCIS’s entire field operations workload. As a result, the change will impact the processing times for all other types of USCIS filings, such as family-based adjustment applications and naturalization cases.

What Should the Applicant Expect at the Interview? (based on the stats for October-November 2017)
The applicant could be asked about almost anything. 

• Any information provided on the Form I-485 (review the copy of the form I-485, and be prepared to answer questions).
• Issues relating to the applicant’s eligibility or admissibility, such as any arrests or misrepresentations made to an immigration officer (talk to your attorney if you ever had a DUI, arrests, domestic violence protection order filed against you, charges that were later dismissed, convictions, lied on the application, worked without authorization, etc).
• The applicant’s entire immigration history, particularly whether the applicant has properly maintained his non-immigrant status (if you worked without authorization while in a student status, etc)
• Family members applying as derivative to the employment-based principal applicant should anticipate questions about their relationship to the principal and the bona fides of that relationship (similar to a family-based green card interview).

If the field officer conducting the interview is not satisfied with an applicant’s answers and believes that an applicant is not eligible for adjustment, the Form I-485 can be denied, or a RFE (request for evidence) could be sent, or NOID (notice of intent to deny) could be issued.

Will the Field Officer Re-Adjudicate the Form I-140? USCIS has said that the interviewing field officers have been instructed not to re-adjudicate the underlying Form I-140. However, the agency has also made clear that the officers will be charged with assessing the validity of the documents used to approve the Form I-140 petition to ensure that the supporting evidence was accurate and credible. If the officer determines that that evidence is not credible, he can recommend that the Form I-140 be revoked by the service center that originally issued the approval (officer can send I-140 for revocation back to USCIS Service Center which originally approved the petition).

It is important that the applicant understands the basis for the Form I-140 petition and be prepared to articulate at the interview how his employment qualified for approval. The applicant should review the Form I-140 petition and any underlying PERM application in advance and address any tricky issues with the employer or counsel. The applicant will almost certainly be questioned about the job for which he was sponsored as well as about his own educational background and work experience. This new requirement could present a challenge because I-140 is an employer's petition, and applicants don't usually have an access to the form I-140, PERM, etc. 

An attorney can prepare the applicant on what to expect during the interview, and coordinate with the employer and the applicant to make sure that the applicant takes the appropriate documentation to the interview, knows what I-140 and PERM was about, has a copy of his I-485 form, has clean criminal record and no status violations, etc. The adjustment of status interview notices that are currently being sent to applicants are generic and confusing because they include a list of the documents that do not even apply in employment-based cases. 

On October 23, 2017, another long-standing USCIS adjudication policy was reversed. When filing for an extension of the non-immigrant status, for example, H-1B work visa, you should not take for granted any prior approvals. An applicant has to prove his/her eligibility again when applying for an extension of the same status, even if status was approved before. USCIS will no longer defer to prior approvals.

October 23, 2017 Policy Memorandum "Rescission of Guidance Regarding Deference to Prior Determinations of Eligibility in the Adjudication of Petitions for Extension of Nonimmigrant Status" is available at USCIS webportal.

As a result, USCIS made it more difficult for companies to renew H-1B visas for foreign professionals (workers) who work in specialty occupations. Previously, when it was time to renew an H-1B employee’s status, the USCIS gave deference to past H-1B approval decisions. This enabled H-1B visa holders to obtain extensions in a fast and straightforward manner. USCIS recently rescinded (canceled) their old policy memorandum, and now H-1B visa holders who apply for extensions must again prove eligibility as though they are seeking H-1B visas for the first time.

This policy change will impose greater uncertainty, loss of foreign talent (who may choose to migrate to Canada instead), higher costs and delays to companies who rely on foreign talent.

USCIS is directing officers to use the same amount of scrutiny for initial and extension requests, and indicating that the new guidance applies to a variety of employment visas, not just H-1B.

It is expected that employers will be receiving many detailed Requests for Evidence (“RFE”) when H-1B extension requests are filed. These RFEs will increase the administrative and legal burden on employers seeking H-1B visas, and increase the costs.

Effective October 1, 2017, USCIS also imposed a new rule requiring in-person interviews with all employment-based immigrant visa applicants, including spouses and children, which will burden local USCIS offices and increase wait time for all green card categories waiting for an adjustment of status interview.

H-1B visas are valid for a total of six years and are usually issued in three-year increments. To prepare for the new renewal process, H-1B employers should initiate the renewal process far enough in advance to secure an extension before an H-1B employee’s status expires.
​
USCIS October 23, 2017 memo.

On October 8, 2017, the White House released a list of immigration priorities addressing border security, interior enforcement, and a merit-based immigration system. 

The priority list calls for the hiring of 10,000 ICE agents, 300 federal prosecutors, 370 immigration judges and 1,000 ICE attorneys.  

The Department of Homeland Security would be authorized to raise and collect fees from visa services and border crossings to fund border security and enforcement activities. 

The border security measures include funding the southern border wall, ending the abuse of the asylum system, discouraging illegal re-entry by enhancing penalties and expanding categories of inadmissibility, and improving expedited removal of undocumented immigrants.

Making E-Verify mandatory, putting an end to sanctuary cities by authorizing and incentivizing states and localities to help enforce federal immigration laws, and improving visa security (which was recently declared unconstitutional by a federal judge).

With regards to the merit-based immigration system, the White House's priority list reiterates what was previously announced on August 2, 2017, when President Trump unveiled the revised RAISE Act (Reforming American Immigration for Strong Employment). This law would reduce the number of eligible family-based green cards and create a new point-based system for awarding green cards. 

Specifically, the RAISE Act would establish a 30-point threshold for green cards, awarding an applicant higher point totals for higher-salaried jobs, professional degrees, English-speaking ability, younger applicant age, higher future salary, extraordinary achievements, and an applicant’s investing $1.35 million or more in the United States.

Some of these new immigration priorities were previously announced in the form of President's executive orders, proclamations and memos:

• January 23, 2017 EO: Protecting American Jobs and Workers by Strengthening the Integrity of Foreign Worker Visa Programs
• January 25, 2017 executive orders: Enhancing Public Safety in the Interior of the United States and the Border Security and Immigration Enforcement Improvements
• February 20, 2017 memo: Implementing the President's Border Security and Immigration Enforcement Improvement Policies
• March 6, 2017 EO:  Protecting the Nation from Foreign Terrorist Entry into the United States
• March 6, 2017 Memo: Implementing Immediate Heightened Screening and Vetting of Applications for Visas and Other Immigration Benefits, Ensuring Enforcement of All Laws for Entry into the United States, and Increasing Transparency Among Departments and Agencies of the Federal Government and for the American People
• April 18, 2017 EO: Buy American and Hire American
• September 24, 2017 presidential proclamation:  Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats

​If these priorities/proposals will become law, what does this mean for employers/employees? 

Employers will face higher costs in sponsoring foreign workers for visas, and for the employees it will become increasingly difficult to meet a high point-based system threshold in order to obtain a green card.
There will be additional delays in visa issuance due to the additional screening required. There will be litigation, and not all of the priorities will become the law.

There have been several important announcements and policy changes concerning H-1B work visa.

First: On April 3, 2017, USCIS announced that it would introduce several new measures with intent of detecting and deterring H-1B visa fraud and abuses.  According to an official USCIS press release, USCIS will be conducting site visits to H-1B petitioners and worksites, where

(i) USCIS cannot validate the employer’s basic information through commercially available data;
(ii) H-1B dependent employers (companies with high ratio of H-1B workers as compared to U.S. workers: companies with 25 or fewer full-time employees, more than 7 H-1B workers; companies with 26-50 full-time employees, more than 12 H-1B employees; and companies with 50 or more full-time employees, 15% or more H-1B employees); and,
(iii) employers petitioning H-1B workers who work off-site. 

The site visits have been around since 2009. It's not something new. USCIS emphasized that these site visits will be random and unannounced, and are meant to identify companies that abuse the H-1B system. 

USCIS established an email address, which allows the public to submit tips, alleged violations and other information about potential H-1B abuse. The employers that are reported via this email address will also become targets for site investigations.

Second: 

On March 31, 2017, the U.S. Citizenship and Immigration Services (“USCIS”) issued a new Policy Memorandum made available April 3, 2017, which rescinds the December 22, 2000 memorandum titled “Guidance memo on H1B computer related positions.”

The new policy implements a significant change to the adjudication of H-1B petitions for computer programming positions.

2017 H1B Policy Changes and Updates:  The December 22, 2000 memorandum titled “Guidance memo on H-1B computer related positions” provided the policy that most computer programmers had a bachelor’s degree or higher based on information provided by the Occupational Outlook Handbook (“OOH”), which is published by the Department of Labor.  Petitioners were usually able to meet their burden of proving a particular position is a specialty occupation, if it were to prove through information provided in the OOH that a baccalaureate or higher degree is normally the minimum requirement for entry into the particular position.  By rescinding the policy, USCIS has stated that the OOH is no longer sufficient evidence to prove a particular position in computer programming is a specialty occupation and has thus drastically changed how H-1B petitions for computer programmers are to be adjudicated.

Petitioner's Burden of Proof:  The consequence of rescinding the “Guidance memo on H1B computer related positions” is that USCIS has heightened the burden for petitioners.  Petitioners may not rely solely on the OOH to prove that a position in computer science is normally required. Rather, USCIS has clarified its position that petitioners must provide additional evidence to establish that the particular position is a specialty occupation as defined by 8 CFR 214.2(h) (4) (ii) for computer programming.

Entry-Level Positions in Computer Related Positions: The Policy Memorandum clarifies that USCIS must determine whether the attestations and content of the LCA correspond to and support the H-1B visa petition. A petitioner’s designation that a position is a Level I, entry-level position “would likely contradict a claim that the proffered position is particularly complex, specialized, or unique compared to other positions within the same occupation.”  USCIS is changing a long established tradition, by clarifying that most entry-level positions are not specialized occupations within the computer programmer occupation. This provides a basis to deny many of the now pending petitions, filed in April 2017 for the FY 2018. 

Put American Workers First Approach in Tech Companies:  It appears restricting H-1B visas is part of the current administration’s attempt to “put American workers first.” As technology continues to grow, the job of a computer programmer was in the top 5 H-1B job titles for the FY 2017 H-1B petitions.  

Last Minute Policy Change Published on the First Day of the FY 2018 Filing Period for H-1B: The Policy Memorandum is dated March 31, 2017, but only made available April, 3, 2017, as a result, many of the new H-1B petitions have already been filed following the long-established standards of the now “outdated” USCIS 2000 guidance memo.  Employers can now expect to receive RFE (Requests for Evidence) questioning eligibility and requesting additional documentation, and many petitions can be denied.

USCIS allows only 5 days a year in April to file new, cap-subject H-1B petitions for the next fiscal year. In 2016 for FY 2017, 236,000 H-1B visa applicants competed for the 85,000 quota available annually. 

On January 17, 2017, the U.S. Department of Homeland Security (DHS) published a final rule International Entrepreneur Rule or "Startup Parole" to improve the ability of certain foreign start-up founders to begin growing their companies within the United States.

Under this final rule, DHS may use its "PAROLE" authority to grant a "Startup Parole", or a period of authorized stay, on a case-by-case basis, to foreign entrepreneurs who demonstrate that their stay in the United States would provide a significant public benefit through the potential for rapid business growth and job creation.

The new rule effective date is July 17, 2017, which is 180 days after its publication in the Federal Register.

This final rule adds a new section 8 CFR 212.19 to provide guidance with respect to the use of parole for entrepreneurs of start-up entities based upon significant public benefit. 

DHS estimates that 2,940 entrepreneurs will be eligible under this rule annually. Eligible entrepreneurs may be granted a stay of up to 30 months, with the possibility to extend the period by up to 30 additional months if they meet certain criteria, in the discretion of DHS.

Under this final rule, eligibility may be extended to up to three entrepreneurs per start-up entity, as well as spouses and children. Entrepreneurs granted stays will be eligible to work only for their start-up business. Their spouses may apply for work authorization in the United States, but their children will not be eligible.An applicant would need to demonstrate that he or she meets the following criteria to be considered under this rule:

• The applicant possesses a substantial ownership interest in a start-up entity created within the past five years in the United States that has substantial potential for rapid growth and job creation.
• The applicant has a central and active role in the start-up entity such that the applicant is well-positioned to substantially assist with the growth and success of the business.
• The applicant can prove that his or her stay will provide a significant public benefit to the United States based on the applicant’s role as an entrepreneur of the start-up entity by:
  • Showing that the start-up entity has received a significant investment of capital from certain qualified U.S. investors with established records of successful investments;
  • Showing that the start-up entity has received significant awards or grants for economic development, research and development, or job creation (or other types of grants or awards typically given to start-up entities) from federal, state or local government entities that regularly provide such awards or grants to start-up entities; or

Showing that they partially meet either or both of the previous two requirements and providing additional reliable and compelling evidence of the start-up entity’s substantial potential for rapid growth and job creation.

Briefly in Russian:

Стартап Пароль или Виза на 30 месяцев для предпринимателей в США.
17 января 2017, Иммиграционная служба США (USCIS / DHS) опубликовала новый Закон по поощрению предпринимательства и стартапов в США.

Иностранным бизнесменам и предпринимателям открывающим новый бизнес в США (и членам семей - супругам и детям) будет предоставлятся Пароль (разрешение на въезд и проживание в США сроком на 30 месяцев с продлением, разрешение на работу для предпринимателя и его супруга(-и), но не детей).

Закон вступает в силу 17 июля 2017 года.

Новый статус Пароль для предпринимателей стартапа будут доступен лицам, чьи стартапы были сформированы в течение последних 5 лет, при условии что данный инвестор продолжает играть в нем “центральную и активную роль”. 

Одна стартап компания сможет получить пароли не более, чем на 3-х своих иностранных учредителей (плюс члены их семей). 

Супруги предпринимателя будут иметь право подать заявление на разрешение на работу, и смогут работать в любом бизнесе или организации, а не только в стартапе. Сам предприниматель имеет право только руководить и работать в своем стартапе. Дети предпринимателя не имеют право на работу, находясь в США по этому паролю.

Госпошлина в USCIS за подачу заявления на такой Пароль составит US$1,200.

Предприниматель должен владеть не менее чем 10% от стартапа, при этом показать, что стартап имеет потенциал для быстрого роста и создания новых рабочих мест. Это показывается:

А) наличием американского инвестора, который инвестировал от US$250,000 в стартап, или
В) получением государственных грантов от US$100,000; или
С) частично # А или # В выше с предоставлением "убедительных доказательств", что стартап обеспечит «значительный положительный эффект для общества" в США.

Предприниматель сможет продлить Пароль по истечении 30 месяцев, если он докажет, что стартап создал как минимум 5 рабочих мест, соответствующим требованиям закона, и его доля в стартапе не упала ниже 5 процентов.

​Все детали внизу по линку.

​​You can read the new rule in the Federal Register or download the PDF file here.​