In Part I of our year-end Look Back at Immigration Developments, we focused on stories relevant to non-immigrant/temporary visa types. In Part II, we put the spotlight on recent developments relevant to applications for permanent residence (green cards) and Immigrant Visas.
• Embassies and consulates have begun to catch-up on backlogs and bottlenecks. The outbreak of Covid in 2020 caused havoc for U.S. consular posts around the world. Nearly three years later, Embassies and Consulates remain impacted by Covid-related shutdowns, local quarantines and reductions in staff attributable to attrition and inability to recruit, hire, train and deploy new officers to consular posts around the world. For a long time, many posts were barely functioning. This meant log jams for documentarily qualified immigrants and fiancees, with long months and even years of uncertainty, anxiety and separation for approved immigrants, awaiting interview. Recent reports from the U.S. Department of State’s Visa Office confirm that they are returning to normal schedules and staffing and working hard to reduce wait-times, catch up with backlogs and interview and approve Visas for eligible immigrants and fiances.
• Embassies and Consulates in Russia remain closed; qualified applicants must seek alternatives. By reason of Russia’s aggression towards Ukraine and the imposition of restrictions on Russian staff working at U.S. facilities, the U.S. Department of State has suspended all consular services in Russia. This means that it is not possible to apply for a non-immigrant visa in Russia. Consular services formerly available in St. Petersburg, Moscow, Vladivostok and Yekaterinburg are suspended – indefinitely. Russians who are able to travel abroad may still apply for non-immigrant visas at U.S. Consular posts in other countries. Russians who are documentarily qualified immigrants are being processed and interviewed by U.S. consular officials in Warsaw, Poland. Until there is resolution of the Russian war against Ukraine, this situation is expected to continue.
• STEM-forward initiatives are expected to favor EB-1A and NIW immigrants. As mentioned in New Year’s Eve Part I, the Biden Administration has introduced revisions to the Policy Manual which favor aliens of extraordinary ability in Science, Technology, Engineering and Mathematics (known as “STEM”). While the revisions to the Policy Manual explicitly reference the O-1A non-immigrant visa category, it is likely that the underlying policies will favorably influence the adjudication of Petitions for EB-1A (“extraordinary ability”), EB-1B (“outstanding researcher”) and NIW (“National Interest Waiver”) cases involving STEM-focused fields. For more information about the Biden Administration’s new STEM policies, including a new 24-month extension of Academic Training for J-1 research scholars, click here and here.
• Updates on the Public Charge Rule. For more than 100 years, immigration law has barred individuals likely to become a financial burden on the public from immigrating. This is the “public charge rule.” In the previous administration, efforts were made to expand requirements relating to “public charge” so as to thwart and suppress immigration. Court battles ensued, resulting in a rule change for most family- and employment-based immigrants requiring the filing of a burdensome 18-page form accompanied by credit reports, bank statements and other personal records. Within months of the change of administration, this requirement was suspended in favor of a more reasonable form in length and substance which conformed more closely to the requirements of the statute. In September 2022, USCIS issued a regulation which respects the “public charge”law while not punishing eligible immigrants who had received some forms of non-cash assistance. As of December 2022, USCIS is requiring a new version of the I-485, updated to include additional questions relating to inadmissibility on account of “public charge.” For the latest information about the public charge rule click here.
• USCIS will automatically extend validity of Permanent Resident Cards for Naturalization Applicants. On December 12, 2022, USCIS announced a policy change that will save Permanent Residents who are applying for citizenship significant time and money. For a long time, Permanent Residents who were eligible for and seeking U.S. citizenship would ask whether it was necessary to file a form and pay a steep filing fee ($540) to renew their Permanent Resident Cards, as they awaited a citizenship interview. Prior to the new rule, a cautious Permanent Resident would file the Form I-90, Application to Renew/Replace Permanent Resident Card, even as they awaited a citizenship interview. The new policy provides LPRs who have filed the N-400, Application for Naturalization, with an automatic 24-month extension of their Permanent Resident (green card) while they await a citizenship interview and Oath Ceremony. The new extension policy applies to LPR’s who filed their N-400s on or before December 12, 2022. For more information about the new Permanent Resident Card extension policy click here.
• U.S. Dept. of State’s Visa Bulletin for January 2023 confirms long wait times for India and China, including retrogression for some EB-1-eligible immigrants. Statutory limits on employment-based Immigrant Visa numbers continue to cause major problems for some eligible immigrants. Since 1990, the Employment-based First Preference, Second Preference and Third Preference have each set annual limits on Immigrant Visas at 40,000. And that number includes spouses and children, thereby making the number of Immigrant Visas for EB-1, EB-2 and EB-3 eligible immigrants even lower. On account of the wide gulf between demand from qualified immigrants and supply of Immigrant Visas, long wait times for Immigrant Visa numbers has been a persistent problem. Aggravating the problem further for some is the “per country limit” that limits the number of immigrants from any one country to no more than 7% of the total. The “per country limit” disproportionately impacts high-demand countries such as India and China and results in wait-times of several years for Chinese nationals and a decade or more for Indian nationals. While discussions over the “per country limit” are ongoing, the problem remains unresolved.
New for 2023, the Visa Bulletin is showing multi-year wait times for Chinese and Indian nationals even in the EB-1/Priority Worker classifications. This is unusual. Previously, a Chinese or Indian national who could qualify as an EB-1 “alien of extraordinary ability”, “outstanding researcher” or “multinational manager” could avoid the long wait times typical of the EB-2 and EB3 categories. Now, on account of high demand from qualified immigrants seeking to avoid the EB-2 and EB-3 backlogs, even the EB-1 category is backlogged. According to the January 2023 Visa Bulletin, the Final Action Dates for eligible EB-1 immigrants from India and China will be February 1, 2022. How long the EB-1 will be backlogged and how fast the cut-off dates advance is a mystery; no immigration law practitioner has the answer. To view the upcoming January 2023 Visa Bulletin click here.