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.

U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual regarding the 2-year foreign residence requirement for the nonimmigrant exchange visitor (J) classification.
The update adds information about how USCIS determines whether the requirement has been met, the evidence a benefit requestor may submit to show compliance with the requirement, and how it considers situations in which it is effectively impossible for the benefit requestor to satisfy the requirement.
It also corrects an omission, from existing Policy Manual content, of one of the foreign medical graduates’ grounds for waivers of the foreign residence requirement. This update includes the ground and clarifies employment requirements.
The guidance is effective immediately on publication.
The J-1 nonimmigrant classification is for exchange visitors who intend to participate in an approved program in the United States for the purpose of teaching, instructing or lecturing, studying, observing, conducting research, consulting, demonstrating special skills, receiving training, or receiving graduate medical education or training.

For more information see here. Also the federal code is here. 

Certain J-1 exchange visitors are subject to a foreign residence requirement, which requires that they reside and be physically present in their country of nationality or last legal residence abroad for an aggregate of at least 2 years before they are eligible to apply for an immigrant visa, adjustment of status, or a nonimmigrant H, L, or K visa.

On June 8, 2023, USCIS published comprehensive guidance on the exchange visitor classification in the Policy Manual. USCIS’s latest Oct. 24б 2023 guidance further clarifies how the agency determines whether a benefit requestor has met this foreign residence requirement.
Policy Update Highlights

• USCIS uses the preponderance of the evidence standard in determining whether the exchange visitor has met the two-year foreign residence requirement.
• Travel days—where a fraction of the day is spent in the country of nationality or last residence—count toward satisfaction of the foreign residence requirement.
• USCIS will and does consult with the U.S. Department of State on a case-by-case basis when it is impossible for the benefit requestor to satisfy the two-year foreign residence requirement.
• The policy guidance defines the three exceptions to the requirement that a foreign medical graduate (FMG) obtain a contract from a health care facility in an underserved area when seeking a waiver of the two-year foreign residence requirement:
  • If the U.S. Department of Veteran’s Affairs (VA) requests the waiver, the FMG must practice medicine with the VA for at least three years, but does not need to do so in a U.S. Health and Human Services (HHS)-designated shortage area.
  • If an interested federal agency requests the waiver, the FMG may fulfill the obligation by working for the agency for at least three years, rather than by practicing medicine in an HHS-designated shortage area.
  • If an interested federal or state agency requests the waiver for an FMG who agrees to practice specialty medicine in a facility located in an HHS-designated geographic area, the FMG may fulfill the obligation by practicing specialty medicine in such a facility for at least three years. The request must demonstrate a shortage of health care professionals able to provide the relevant specialty services.

Those with questions about the J-1 foreign residency requirement or related waivers should consult with experienced immigration counsel

Policy Manual:

F. Foreign Residence Requirement

Certain J-1 exchange visitors are subject to a 2-year foreign residence requirement.[11] After leaving the United States, J-1 exchange visitors subject to the requirement must reside and be physically present in their country of nationality or last legal residence abroad for an aggregate of at least 2 years before they are eligible to apply for an immigrant visa, adjustment of status, or a nonimmigrant H, L, or K visa.[12] Such country is the country of nationality or legal permanent residence listed on the Certificate of Eligibility for Exchange Visitor Status (Form DS-2019), and is referred to herein as the “Home Country.”
These exchange visitors are further prohibited from changing status from J nonimmigrant status to another nonimmigrant status, other than A, G, T, or U, or H-1B for physicians receiving waivers on the basis of a 3-year waiver position.[13]
Exchange visitors participating in the following programs are subject to the foreign residence requirement: [14]

• Programs facilitated by the DOS designated sponsor, Educational Commission for Foreign Medical Graduates (ECFMG), for medical trainees. (ECFMG sponsored medical researchers are generally not subject to the requirement as medical trainees, but may be subject to the requirement on another basis);
• Programs in which the exchange visitor has received any type of government funding or support from the exchange visitor’s home country or country of last legal permanent residence, the U.S. Government, or an international organization, as indicated on the Form DS-2019. (Government-sponsored programs beginning with G in the program number on Form DS-2019 are usually government-funded where the exchange visitor received financial support from the sponsor);
• Programs in which the exchange visitor’s field of endeavor appears on the DOS Exchange Visitor Skills List (list of fields of specialized knowledge or skills in which the services of exchange visitor participants are critically needed) for the exchange visitor’s home country or country of last legal permanent residence; [15] and
• Programs whose purpose is graduate medical training, typically a residency or fellowship.

Determining if the Foreign Residence Requirement Has Been Met
USCIS determines whether the exchange visitor has met the 2-year foreign residence requirement within the context of a subsequent application or petition. USCIS applies the preponderance of the evidence standard when it makes this determination.
Benefit requestors may submit any relevant evidence showing their physical presence in the Home Country. For example, benefit requestors may submit a chart of days spent in the Home Country. Benefit requestors may also submit supporting evidence such as passport stamps, travel receipts, employment records, school transcripts, leases, or affidavits.
Any day where a fraction of a day is spent in the Home Country counts toward satisfaction of the requirement. For example, a travel day, where a fraction of the day is spent in the country of last permanent residence, counts as a day towards satisfying the requirement.
In certain cases, conditions in the applicant’s Home Country, such as war or civil unrest, may make compliance with the 2-year residence requirement effectively impossible. Additionally, some countries have periodically imposed travel bans that have made traveling to the Home Country effectively impossible. In other cases, the applicant’s Home Country is now part of another country due to shifting borders or other political changes. USCIS considers these circumstances, on a case-by-case basis, in consultation with the Department of State.


​

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

 Edition 01/25/2022:

In General

You may ask USCIS to expedite adjudication of a benefit request (such as an application or petition) for an immigration benefit.

USCIS:

• Considers all expedite requests on a case-by-case basis;
• May require additional documentation to support a request; and
• Has the sole discretion to decide whether to accommodate a request.

Because granting an expedite request means that USCIS would adjudicate the requestor's benefit ahead of others who filed earlier, we carefully weigh the urgency and merit of each expedite request. We may consider an expedite request if it meets one or more of the following criteria or circumstances:

• 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
  • Timely respond to any requests for additional evidence;

A company can demonstrate that it would suffer a severe financial loss if it is at risk of failing, losing a critical contract, or having 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 by itself, 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.

• Emergencies and urgent humanitarian reasons;

In the context of an expedite request, humanitarian reasons are those related to human welfare. Examples may include, but are not limited to, illness, disability, extreme living conditions, death in the family, or a critical need to travel to obtain medical treatment in a limited amount of time. An emergency may include an urgent need to expedite employment authorization for healthcare workers during a national emergency such as the COVID-19 pandemic. Additionally, an expedite request may be considered under this criterion in instances where a vulnerable person’s safety may be compromised due to a breach of confidentiality if there is a delay in processing the benefit application. A benefit requestor’s desire to travel for vacation does not, in general, meet the definition of an emergency.

• Nonprofit organization (as designated by the Internal Revenue Service) whose request is in furtherance of the cultural or social interests of the United States;

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.

• U.S. government interests (such cases identified as urgent by federal agencies such as the U.S. Department of Defense, U.S. Department of Labor, National Labor Relations Board, Equal Opportunity Commission, U.S. Department of Justice, U.S. Department of State, U.S. Department of Homeland Security, or other public safety or national security interests); or

U.S. government interests may include, but are not limited to, cases identified as urgent by other government agencies, including labor and employment agencies, and public safety or national security interests.
For expedite requests made by a federal agency, involving other public safety or national security interests, the national interest need must be immediate and substantive. If the need for the action is not immediate, expedited processing is not warranted. A substantive need does not mean that a delay would pose existential or irreversible consequences to the national interests but rather that the case at hand is of a scale or a uniqueness that requires immediate action to prevent real and serious harm to U.S. interests.
Expedite requests from government agencies (federal, state, or local) must be made by a senior-level official of that agency. If the request relates to employment authorization, the request must demonstrate that the need for a person to be employment-authorized is mission-critical and goes beyond a general need to retain a particular worker or person. Examples include, but are not limited to, a noncitizen victim or witness cooperating with a federal, state, or local agency who is in need of employment authorization because the respective agency is seeking back pay or reinstatement in court proceedings.

• Clear USCIS error.

Not every circumstance that fits in one of these categories will result in expedited processing.
For more information, see USCIS Policy Manual, Volume 1, Part A, Public Services, Chapter 5, Requests to Expedite Applications or Petitions [1 USCIS-PM A.5].
You can generally request expedited processing by calling the USCIS Contact Center at 800-375-5283 (TTY 800-767-1833) The USCIS Contact Center will not be able to refer the expedite request to the appropriate office without a receipt number.
When you call to request expedited processing, the USCIS Contact Center creates and forwards a service request to the office with jurisdiction over your application or petition. After receiving the service request, the reviewing office may request additional documentation to support expedited processing. A decision on an expedite request is not an approval or a denial of the underlying benefit request. The expedite decision simply informs the requestor whether USCIS will take the benefit request out of date order and issue a decision (approval or denial) faster than the normal processing time.
In accordance with the criteria above, note specific handling procedures in the following circumstances:

Adoptions

See the USCIS Adoption Contact Information webpage for information on how to make expedite requests for adoption cases.

Appeals

Requests for expedited processing of appeals may be included with the appeal. Expedite requests included with the appeal will be reviewed by the office that issued the decision.
For appeals filed with the Administrative Appeals Office (AAO), any expedite request made after the appeal submission should be mailed or faxed directly to AAO. See AAO’s Processing Requests and Contacting the AAO pages for more information.
Regardless of whether the expedite request is submitted with the appeal or afterward, the expedite request should include:

• A cover letter clearly marked “EXPEDITE REQUEST”; and
• Documentary evidence supporting the request for expedited processing of the appeal.

Requests for expedited processing of appeals filed with the Board of Immigration Appeals (BIA) should follow the BIA expeditious handling procedures.

Applications for Asylum

Requests for expedited processing on asylum applications should be directed to the office with jurisdiction over the asylum application. See the Affirmative Asylum Interview Scheduling page for more information.

Benefit Requests Pending Outside the United States
Send requests for expedited processing of applications for refugee status to the Resettlement Support Center handling the case abroad. For more information, see the USCIS Questions and Answers: Refugees page.
Send requests for expedited processing of humanitarian parole for beneficiaries located outside of the United States to the Humanitarian Affairs Branch. For more information, see the Humanitarian or Significant Public Benefit Parole for Individuals Outside the United States page.
For all other immigration benefit requests pending with USCIS offices located outside the United States, you may request expedited processing by submitting a written request, along with any supporting documentation, directly to the USCIS office with the benefit request.
For contact information for USCIS offices located outside the United States, see the USCIS International Immigration Offices page. Requests for expedited processing on matters pending with Department of State (DOS) should follow DOS expeditious handling procedures.

Last Reviewed/Updated:
01/25/2022

​

​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.

New Public Charge rules are in effect since February 24, 2020.
New federal poverty guidelines are in effect since March 1, 2020. https://www.uscis.gov/i-864p

Public charge does not apply to all immigrants. Every family is different, and the programs that help your
family might not be part of new changes to the policy.

WHAT IS CONSIDERED PUBLIC CHARGE:

- Supplemental Nutrition Assistance Program (SNAP, “EBT” or “Food Stamps”)
- Federal Public Housing and Section 8 assistance
- Medicaid (except for emergency services, children under 21 years, pregnant
women, and new mothers)
- Cash assistance programs (like SSI, TANF, General Assistance)

Most people who are subject to the new rule are not eligible for the above listed benefits.
Services that are not listed above will not be counted in the public charge test. This includes
WIC, CHIP, school lunches, food banks, shelters, state or local health care programs, and
many more.

The immigration officer will consider the immigrant's:

• health
• age
• education and skills
• family support and sponsor
• use of some kinds of public benefits

The officer weighs all these factors. The officer decides if the person is "likely to become a Public Charge." They consider positive factors, like a job or skills. They consider negative factors, like low income or health problems. They can deny the application if they think the person will depend too much on public benefits in the future.

​Who is Affected by the Public Charge Rule

The Public Charge rule mostly affects people who are:

• applying for a Green card (Permanent Residence) with a family-based petition.
• Permanent Residents who traveled outside the U.S. for more than six months.

A slightly different rule applies to some "nonimmigrants" applying to change or extend their status. Example: student visas.

New Public Charge Rule doesn't apply to:

• U.S. citizens
• Permanent Residents (Green card holders) applying for citizenship or card renewals
• Refugees: people applying for refugee status, or for a Green card as a refugee
• Asylum: people applying for asylum, or for a Green card as an Asylee
• TPS: people applying for initial or re-registration of Temporary Protected Status
• DACA: people applying to renew Deferred Action for Childhood Arrivals
• SIJS: people applying for Special Immigrant Juvenile Status or applying for a Green card thru SIJS
• U Visa: people applying for a U visa or U visa holders applying for a Green card
• T Visa: people applying for a T visa; and T visa holders applying for a Green card
• VAWA: people applying for Violence Against Women Act (VAWA), and people with VAWA who are applying for a Green card
• People applying for withholding of removal or Convention Against Torture benefits
• Cubans applying under the Cuban Adjustment Act
• Amerasians who are applying for admission
• SIV: Afghan and Iraqi interpreters and translators who are applying for special immigrant visas
• Registry: People applying for registry (lived in the U.S. since before January 1, 1972)
• NACARA: People applying for Nicaraguan Adjustment and Central American Relief Act benefits
• HRIFA: People applying for Haitian Relief and Immigrant Fairness Act (HRIFA) benefits
• Lautenberg parolees
• Certain other "humanitarian" immigrants

You can find many great resources below:

• Supreme Court opinion issued February 21, 2020 is here.
• DS-5540, DOS Public Charge Questionnaire is here.
• Updated DOS Foreign Affairs Manual section on public charge is here.
• USCIS revised forms and updated policy guidance is here.
• USCIS policy alert is here.
• USCIS announcement is here.
• Immigrant Legal Resource Center, Public Charge Toolkit, including a “Totality of the Circumstances Worksheet” with ideas for positive evidence, is here.
• National Immigration Law Center, Protecting Immigrant Families page is here; summary of developments is here.
• Additional resources are here.

​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.
​

Today, July 1, 2019, begins the exceptionally rare period of authorized concurrent filing of I-130 and I-485 for spouses and minor children of permanent residents/green card holders. The filing period is expected to end on July 31, 2019, unless August 2019 Visa Bulletin also projects F2A preference category to be "current".
It is important to file all applications properly and submit all required initial evidence in order to avoid rejection, because there could be no time for re-filing if the filing period ends on July 31st.
Spouses and minor children of the lawful permanent residents who are in the USA in *lawful status* might be able to apply for adjustment of status concurrently with the filing of I-130 petition. Consult an attorney if not sure if you are eligible to apply.
If you need legal help please email at attorney@law-visa-usa.com

In Russian:

​Сегодня 1 июля 2019 открылся период для подачи одновременно петиции на воссоединение семьи и заявления на грин карту для жен и малолетних детей постоянных жителей США, которые находятся в США *в легальном статусе*, например приехали по гостевой визе или находятся в США по студенческой визе. Этот период продлится с 1 по 31 июля 2019, в соответствии с июльским календарем виз. Помните, что важно правильно все подготовить и подать в USCIS, чтобы избежать отказа в принятии заявлений, rejection, так как не известно, продолжится ли этот период в августе или закончится 31 июля. Если вам нужна помощь, обращайтесь по электронной почте attorney@law-visa-usa.com

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.

​USCIS Policy Manual Update:

​USCIS is revising policy guidance for the validity period of Form I-693, Medical Examination. The updated policy goes into effect on November 1, 2018, and will require applicants to submit a Form I-693 signed by a civil surgeon no more than 60 days before filing.

The Form I-693 will remain valid for a 2-year period following the date the civil surgeon signed it (not submitted, but signed).

Read here.

U.S. Citizenship and Immigration Services (USCIS) has published a revised final policy memorandum related to unlawful presence. Under the revised final policy memorandum, effective August 9, 2018, F and M nonimmigrants who fall out of status and timely file for reinstatement of that status will have their accrual of unlawful presence suspended while their application is pending.

On May 10, 2018, USCIS posted a policy memorandum changing the way the agency calculates unlawful presence for those who were in student (F nonimmigrant), exchange visitor (J nonimmigrant), or vocational student (M nonimmigrant) status. 

The revised final memorandum published on August 9, 2018 supersedes May 10th memorandum and describes the rules for counting unlawful presence for F and M nonimmigrants with timely-filed or approved reinstatement applications, as well as for J nonimmigrants who were reinstated by the Department of State.

For purposes of counting unlawful presence, a timely reinstatement application for F or M status is one where the student has not been out of status for more than five months at the time of filing. Under the revised final policy memorandum, the accrual of unlawful presence is suspended when the F or M nonimmigrant files a reinstatement application within the five month window and while the application is pending with USCIS.

If the reinstatement application is denied, the accrual of unlawful presence resumes on the day after the denial.

Accrual of unlawful presence could result in later inadmissibility under section INA 212(a)(9).

Whether or not the application for reinstatement is timely-filed, an F, J, or M nonimmigrant whose application for reinstatement is ultimately approved will generally not accrue unlawful presence while out of status.   

The Department of State administers the J-1 exchange visitor program, to include reinstatement requests. If the Department of State approves the reinstatement application of a J nonimmigrant, the individual will generally not accrue unlawful presence from the time the J nonimmigrant fell out of status from the time he or she was reinstated.
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Memorandum is here.

Automatic Termination of Optional Practical Training (OPT) and Work Permit for F-1 Students If They Transfer to a Different School or Begin Study at Another Educational Level. 

​USCIS reminds F-1 students on Optional Practical Training (OPT) that transferring to another school or beginning study at another educational level (for example, beginning a master’s program after completing a bachelor’s degree) automatically terminates their OPT as well as their corresponding work permit or employment authorization document (EAD). 

Although authorization to engage in OPT ends upon transferring to a different school or changing educational level, students in F-1 status will not be otherwise affected as long as they comply with all requirements for maintaining their student status. These requirements include not working with a terminated EAD, because termination means that students are no longer authorized to work in the United States. Working in the United States without authorization has serious immigration consequences, including removal from the country and bars on reentry. Furthermore, remaining in the United States in violation of lawful nonimmigrant status could lead to an accrual of unlawful presence which includes another set of penalties under the Immigration and Nationality Act.

Currently, U.S. Immigration and Customs Enforcement’s (ICE) Student and Exchange Visitor Program (SEVP) informs USCIS of the termination date, and the OPT termination is automatic under current regulations. USCIS has updated its systems and will begin to enter the EAD termination date into these systems after being notified by SEVP. USCIS will notify affected students and provide them with an opportunity to correct any errors in the record via their designated school official (DSO). This process is intended to strengthen the integrity of the F-1 and OPT programs, to ensure consistency between SEVP and USCIS systems, and to inform students of possible consequences of working with a terminated EAD. 

(On August 9, 2018, USCIS published a final revised guidance which supersedes May 10th 2018 memorandum. Please refer to a new USCIS memorandum/guidance we published here).

On May 10, 2018, USCIS posted a policy memorandum changing how USCIS will calculate unlawful presence for students and exchange visitors in F, J, and M nonimmigrant status, including F-2, J-2, or M-2 dependents, who fail to maintain their status in the United States.  

This policy aligns with Trump’s Executive Order: Enhancing Public Safety in the Interior of the United States to enforce the immigration laws of the country and will go into effect on Aug. 9, 2018.

Individuals in F, J, and M status who failed to maintain their status before Aug. 9, 2018, will start accruing unlawful presence on that date based on that failure, unless they had already started accruing unlawful presence, on the earliest of any of the following:

• The day after DHS denied the request for an immigration benefit, if DHS made a formal finding that the individual violated his or her nonimmigrant status while adjudicating a request for another immigration benefit;
• The day after their I-94 expired; or
• The day after an immigration judge or in certain cases, the Board of Immigration Appeals (BIA), ordered them excluded, deported, or removed (whether or not the decision is appealed).

Individuals in F, J, or M status who fail to maintain their status on or after Aug. 9, 2018, will start accruing unlawful presence on the earliest of any of the following:      

• The day after they no longer pursue the course of study or the authorized activity, or the day after they engage in an unauthorized activity;
• The day after completing the course of study or program, including any authorized practical training plus any authorized grace period;
• The day after the I-94 expires; or
• The day after an immigration judge, or in certain cases, the BIA, orders them excluded, deported, or removed (whether or not the decision is appealed).

Individuals who have accrued more than 180 days of unlawful presence during a single stay, and then depart, may be subject to 3-year or 10-year bars to admission, depending on how much unlawful presence they accrued before they departed the United States. Individuals who have accrued a total period of more than one year of unlawful presence, whether in a single stay or during multiple stays in the United States, and who then reenter or attempt to reenter the United States without being admitted or paroled are permanently inadmissible.

Those subject to the 3-year, 10-year, or permanent unlawful presence bars to admission are generally not eligible to apply for a visa, admission, or adjustment of status to permanent residence unless they are eligible for a waiver of inadmissibility or another form of relief.

This policy memorandum is updating Chapter 40.9.2 of the USCIS Adjudicator’s Field Manual.
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USCIS is accepting comments on the policy memorandum. The 30-day public comment period begins today and closes on June 11, 2018. For complete information on the comment process, visit the Policy Memoranda for Comment page.

On April 17, 2018, USCIS has updated its policy on the acceptance of DNA evidence supporting sibling relationships. This policy memorandum permits officers to suggest and consider direct sibling-to-sibling DNA test results, and provides standards for evaluating DNA results for full siblings and half siblings. This new guidance will improve USCIS’s ability to evaluate eligibility for immigration benefits by using technological advances in direct sibling DNA test results.

When USCIS determines that primary evidence is unavailable or unreliable, it may suggest and accept DNA test results as evidence of a full-sibling or half-sibling relationship in any petition or application for an immigration benefit in which a sibling relationship is required to establish eligibility or may otherwise be relevant to an eligibility determination.

Note: USCIS will only consider results of DNA testing conducted by an AABB-accredited lab.
USCIS policy on parentage testing remains unchanged.

Testing Against Additional Relatives: to the extent possible, DNA testing against the common parent(s) is encouraged, because it produces more reliable results than tests that do not include a common parent. Similarly, test results that include additional first-degree relatives, such as another sibling, will yield more conclusive results. Including additional blood relatives, such as aunts, uncles, and cousins, also produces more reliable results, particularly where a result is otherwise inconclusive. The AABB standards encourage accredited labs to recommend additional testing of relatives, where appropriate.  

As USCIS does not currently have regulatory authority to require DNA testing, they may only suggest the option of additional testing to the petitioner. The applicant or petitioner bears the burden, however, to establish eligibility for the immigration benefit sought. INA § 291, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013).

DNA could be expensive. The petitioner or applicant will have to pay for the DNA test if suggested by USCIS or the U.S. embassy or consulate.

(Primary evidence to establish a sibling relationship includes birth certificates, and if applicable, marriage certificates. When an officer determines that primary evidence is unavailable or unreliable, the officer may consider secondary evidence that demonstrates the sibling relationship. Secondary evidence that officers may consider includes, but is not limited to, medical records, school records, and religious documents issued contemporaneously with the event they document. Affidavits sworn to by persons who were living at the time of and who have personal knowledge of the event to which they attest may also be accepted if certain conditions are met. Following the BIA’s ruling in Matter of Ruzku, 26 I&N Dec. 731 (BIA 2016) USCIS initiated discussions with the AABB Relationship Testing (RT) Subcommittee through the DHS Science and Technology (S&T) Directorate.)
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This Policy Memo replaces a 2014 Policy Memo (PM-602-0106, DNA Evidence of Sibling Relationships), and previous guidance in Chapter 21.9(c) of the Adjudicator’s Field Manual (AFM).

​New USCIS memo.

Briefly in Russian:

USCIS опубликовал новые инструкции по использованию теста ДНК при анализе петиций поданных на брата и сестру (и также тех братьев и сестер, у кого общий только один из родителей).

Раньше тест ДНК использовался для установления отношений между родителем и ребенком, и не применялся для других категорий. Теперь USCIS могут предложить петиционеру и брату (сестре) пройти тест ДНК через лабораторию аккредитованную AABB. Они не могут принудить петиционера и заявителя пройти этот тест, а могут только "предложить". Но стоит понимать, что предлагать такой тест USCIS будут тем, у кого не хватает первичных документальных доказательств (свидетельства о рождении, о браке) или что-то вызывает недоверие к документам (подозрение, что это подделка). В случае отказа от теста ДНК, USCIS могут отказаться утвердить петицию I-130 или выдать визу. Инструкции по тесту ДНК родителей и детей остаются те же, что и раньше.

Know Your Rights:

International travelers to USA continue to experience heightened scrutiny at U.S. Ports of Entry (airports). Travelers often carry an electronic device such as a cell phone or a laptop.

The current administration’s focus on border security has increased concerns about how to protect personal and corporate data contained on electronic devices from searches at the border, airport.

On January 4, 2018, CBP issued a new directive titled “Border Search of Electronic Devices.” The directive provides “guidance and standard operating procedures for searching, reviewing, retaining, and sharing information contained in computers, tablets, removable media disks, drives, tapes, mobile phones, cameras, music and other media players, and any other communication, electronic, or digital devices.”

CBP has long engaged in the search of electronic devices at the airport and the border. This new guidance addresses “the rights of individuals against unreasonable search and seizure and ensure privacy protections” while setting forth specific procedures CBP must follow in carrying out their duties.

One major topic is the type of information CBP officers may access on electronic devices. Specifically, CBP may only access information that is stored directly on the device at the time it is presented for inspection. CBP officers may not access information that is stored remotely (in the cloud). In order to ensure that this procedure is properly carried out, CBP has instructed officers to disable a device’s wireless features that would allow access of remote information.

The directive further addresses how officers should review and handle sensitive material, such as documentation protected by attorney-client privilege, medical records, and work-related information carried by journalists. The guidance does not indicate that this information is off-limits, but instead puts in place limitations on which government agencies may review and share the information in order to ensure proper security protections are in place. A CBP officer may request passwords to access any password-protected or encrypted information contained directly on an electronic device.

CBP officers have the discretion to search electronic devices when a traveler makes an application for entry into the United States. If an individual refuses to allow the search of a device, the device can be confiscated. CBP also may refuse to admit a nonimmigrant visa holder who does not comply with search requests.

The January 4th 2018 directive does not change CBP existing border search practices and policies, but provides some clarification. Electronic devices may continue to be seized if a traveler refuses to present them for inspection, but the guidance provides some specifics as to maintenance of both devices and information obtained from devices, of which detention should be limited to a “reasonable period of time.” CBP states that a device that is seized should generally not be held for more than five days to determine whether there is reasonable cause for continued search and seizure.

​DHS and CBP new directive and guidance can be found here.

On December 15, 2017, the USCIS (DHS) announced that it would implement enhanced security measures for the Visa Waiver Program as part of the administration’s ongoing counterterrorism efforts.

The Visa Waiver Program allows certain citizens of 38 countries to travel to the United States for tourism or business purposes for up to 90 days without a visa. Visa Waiver Program countries include many European countries, Australia, New Zealand, South Korea, Singapore, and Japan. To be eligible for the Visa Waiver Program, a foreign national from one of the 38 designated countries must meet the following general requirements:

• possess an e-Passport (i.e., an enhanced secure passport with an embedded chip containing the individual’s biographic information);
• have applied for and received advance authorization through DHS’s Electronic System for Travel Authorization (ESTA) prior to travel;
• have not traveled to or been present in Iran, Iraq, Libya, Somalia, Sudan, Syria, or Yemen on or after March 1, 2011 (with limited diplomatic or military exceptions); and
• not be a dual national of a Visa Waiver Program country and Iran, Iraq, Sudan, or Syria.

The new restrictions on a Visa Waiver Program 12/15/2017: no implementation timeline was announced yet.

(1) Visa Waiver Program countries must begin utilizing U.S. counterterrorism information to screen all travelers entering those countries from elsewhere.

(2) Airports in eligible countries must also utilize the same U.S. data to screen their own employees as a means of safeguarding the United States against threats by foreign airport workers.

(3) DHS will focus on limiting the number of Visa Wavier Program travelers who overstay their maximum-allowed 90-day admission period. DHS will attempt to force countries with overstay rates of 2 percent or greater to conduct public awareness campaigns for their citizens, to educate them not to overstay, not to work without a work authorization, and about the penalties (unable to change status, adjust status, ban on future travel to USA). According to DHS data for FY 2016, only four countries out of 38 Visa Waiver countries currently meet the 2 percent threshold: Hungary, Greece, Portugal, and San Marino.