Articles Posted in Adjustment of Status

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Welcome back to Immigration Lawyer Blog! In this video, attorney Jacob Sapochnick goes over a brand new and unexpected change in policy being followed by the United States Citizenship and Immigration Services (USCIS) with respect to Employment Authorization Documents (EADs) for green card applicants.

Want to know more about this important change? Just keep on watching!

Overview

This month has brought unexpected news for green card applicants. The U.S. Citizenship and Immigration Services (USCIS) recently announced that it will be discontinuing its policy of issuing employment authorization documents (EADs) and advance parole travel authorization as a joint “combo” card. Up until recently, green card applicants could send Form I-765 Application for Employment Authorization, and Form I-131 Application for Travel Document, along with their I-485 green card applications to apply for a “combo” work/travel authorization card. This “combo” card enabled green card applicants to work and travel while their applications were in process with USCIS.

The agency has now confirmed that it will be separating the issuance of the employment authorization document (EAD card) and advance parole (AP) document and will no longer be issuing these “combo cards.” USCIS has said that this new policy change has been implemented to reduce EAD processing times. Effective immediately, the agency will now be issuing EAD and AP documents separately.

Applicants with EAD cards that do not have the notation “Serves as I-512 Advance Parole” will only be able to use their EAD card for employment purposes, and not for travel. A separate Advance Parole document must be issued by USCIS in order for the applicant to engage in international travel. Traveling without a valid Advance Parole document will result in the abandonment of the applicant’s green card.

Why the change?

USCIS has been experiencing abnormally high processing times for I-765 Applications for Employment Authorization, causing serious delays during the COVID-19 pandemic. For instance, the Nebraska Service Center is currently reporting processing times of between 11.5 to 13.5 months for an EAD to be issued based on a pending adjustment of status application. While the California Service Center is currently reporting a wait period of between 20 months to 21.5 months.

While USCIS has been doing its best to reduce the EAD backlogs, many applicants have faced employment interruptions during what is already a difficult economic climate.

USCIS has said that it is working through the EAD backlog and is prioritizing EAD adjudication as it seeks to avoid applicants experiencing a lapse or prolonged lapse in employment authorization. At present, there is no additional information available on the scope or duration of this procedural change

Can I Expedite an EAD Card?

The answer is it depends. USCIS has established clear guidelines explaining when an EAD card may be expedited. In general, USCIS considers 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;

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.

What You Can Expect Going Forward

It is too early to say how effective this new policy will be at reducing the backlogs. Therefore, it is important for applicants to file their applications well in advance of their anticipated employment and planned travel to avoid facing any dilemmas.

Applicants should continue to monitor their pending EAD applications closely and avoid making any travel plans while the applications are pending. We are hopeful that this new policy change will be a welcome improvement, however no estimates can be made with respect to how long it might take USCIS to issue these stand-alone employment authorization and advance parole documents going forward.

The Law Offices of Jacob Sapochnick will continue to monitor these new developments and will report on any new updates right here on our blog.

Questions? If you would like to schedule a consultation, please text 619-483-4549 or call 619-819-9204.

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Welcome back to Immigration Lawyer Blog! In this video, attorney Jacob Sapochnick goes over the upcoming March 2022 Visa Bulletin and what you can expect in terms of movement or retrogression in the employment based and family sponsored preference categories.

The visa bulletin is issued every month by the Department of State. It shows which green card applications can move forward, based on when the immigrant petition that starts the green card process was originally filed. The visa bulletin allows you to estimate how long it will take before you will be able to get your green card, based on how quickly the “line” is moving now. You can check the visa bulletin on a monthly basis to determine your place in line.

Overview

What’s happening in the employment-based categories?

FINAL ACTION DATES FOR EMPLOYMENT-BASED PREFERENCE

According to the Department of State’s March 2022 Visa Bulletin, the following final action cutoff dates will apply for the issuance of an immigrant visa for employment-based categories:

  • EB-1: All countries, including India and China, will remain current.
  • EB-2: India will advance by 4 months to May 1, 2013, and China will remain at March 1, 2019. All other countries will remain current.
  • EB-3 Professionals and Skilled Workers: EB-3 India and China will remain unchanged from the previous month, at January 15, 2012, and March 22, 2018, respectively. All other countries will remain current.
  • EB-5: The Non-Regional Center program will be current for all countries, including China. The Regional Center program has expired and is listed as unavailable in the March 2022 Visa Bulletin. If reauthorized, the Regional Center category will also be current for final action for all countries except China, which would be subject to a November 22, 2015 final action date.
Employment-
based		 All Chargeability
Areas Except
Those Listed		 CHINA-
mainland
born		 EL SALVADOR
GUATEMALA
HONDURAS		 INDIA MEXICO PHILIPPINES
1st C C C C C C
2nd C 01MAR19 C 01MAY13 C C
3rd C 22MAR18 C 15JAN12 C C
Other Workers C 01MAY12 C 15JAN12 C C
4th C C 01MAY17 C 01APR20 C
Certain Religious Workers U U U U U U
5th Non-Regional Center
(C5 and T5)		 C C C C C C
5th Regional Center
(I5 and R5)		 U U U U U U

Which filing chart do I use if I want to apply for adjustment of status based on employment within the USA?

All employment-based preference categories, except EB-5 petitions based on the Regional Center Program, may apply for adjustment of status using the Dates for Filing Chart in the Department of State Visa Bulletin for March 2022.

What can be expected moving forward from the employment-based categories?

In this month’s visa bulletin, the most important highlight is that EB-3 China Other Workers advanced by one-month to July 1, 2015, and EB-4 El Salvador, Guatemala, and Honduras retrogressed by almost 2 years.

Additionally, DOS estimates that it may soon be necessary to establish EB-5 Non-Regional Center Final Action and Dates for Filing cutoff dates for China. DOS predicts this may occur as early as April 2022, which would make the category no longer current for China-mainland born nationals.

DOS also predicts that EB-2 India might soon retrogress in the coming weeks.

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Welcome back to Immigration Lawyer Blog! We kick off the start of a brand-new week with new White House initiatives expanding the post-completion Optional Practical Training program for STEM international students, as well as other government initiatives to attract entrepreneurs and highly skilled professionals to the United States seeking O-1 visas and National Interest Waivers.

Want to know more? Just keep on watching!

Overview

White House Releases Initiative Expanding STEM OPT

We are excited to share that just last week, the White House announced a series of policy changes designed to attract and retain the knowledge and training of international students working toward science, technology, engineering, and mathematics (STEM) related fields in the United States. Among these new initiatives, DHS Secretary Alejandro Mayorkas has announced the expansion of the STEM Optional Practical Training (OPT) program, with the addition of 22 new fields of study to the STEM Degree Program List, including economics, computer science, mathematical economics, data science, business and financial analytics.

Currently, the F-1 STEM optional practical training (OPT) extension program grants F-1 students with a qualifying STEM degree, the ability to work in the United States with OPT work authorization for a period of up to 36 months. This expansion of the program will now increase the pool of candidates eligible to receive employment authorization.

Some of the newly added fields of study include: Bioenergy; Forestry, General; Forest Resources Production and Management; Human Centered Technology Design; Cloud Computing; Anthrozoology; Climate Science; Earth Systems Science; Economics and Computer Science; Environmental Geosciences; Geobiology; Geography and Environmental Studies; Mathematical Economics; Mathematics and Atmospheric/Oceanic Science; Data Science, General; Data Analytics, General; Business Analytics; Data Visualization; Financial Analytics; Data Analytics, Other; Industrial and Organizational Psychology; Social Sciences, Research Methodology and Quantitative Methods. To view a complete list of qualifying fields, please click here to view the Federal Register notice. Continue reading

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Welcome back to the Immigration Lawyer Blog, where we discuss all things immigration. In this video, attorney Jacob Sapochnick discusses the February 2022 Visa Bulletin and what you can expect in terms of movement or retrogression in the employment based and family sponsored preference categories.

Want to know more? Just keep on watching.

Overview

What’s happening in the employment-based categories?

According to the Department of State’s February 2022 Visa Bulletin, the following final action cutoff dates will apply for the issuance of an immigrant visa for employment-based categories:

  • EB-1: All countries, including India and China, will remain current.
  • EB-2: India advanced by nearly 6 months to January 1, 2013, and China advanced by more than 5 weeks to March 1, 2019. All other countries will remain current.
  • EB-3 Professionals and Skilled Workers: EB-3 India and China will remain the same as the previous months at January 15, 2012 and March 22, 2018 respectively. All other countries will remain current.
  • EB-4 Certain Religious Workers: All countries, except El Salvador, Guatemala, Honduras, and Mexico, will remain current. El Salvador, Guatemala, Honduras remains at March 15, 2019, and Mexico remains at April 1, 2020
  • EB-5: The Non-Regional Center program will be current for all countries, including China. The Regional Center program has expired and is listed as unavailable in the February 2022 Visa Bulletin. If reauthorized, the Regional Center program will mirror the Non-Regional Center final action dates, except China, which would be subject to a November 22, 2015, final action date.

Which filing chart do I use if I want to apply for adjustment of status based on employment within the USA?

All employment-based preference categories, except EB-5 petitions based on the Regional Center Program, may apply for adjustment of status using the Dates for Filing chart in the Department of State Visa Bulletin for February 2022.

What’s happening in the family-sponsored categories?

According to the Department of State’s February 2022 Visa Bulletin, the following final cutoff dates will apply for the issuance of an immigrant visa for family-sponsored categories:

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Welcome back to the Immigration Lawyer Blog! It’s the start of a brand-new year and as always, we at the Law Offices of Jacob J. Sapochnick, are committed to bringing you the latest in immigration news. We are happy for you to join us.

In this video, attorney Jacob Sapochnick shares his top predictions for U.S. immigration in the new year. In this blog post we cover the following topics: What will happen to visa processing during the COVID-19 pandemic? Will there be immigration reform in the new year? Will any new changes be made to the H-1B visa program? What about fee increases? Stay tuned to find out more.

Overview

What are some of our key immigration law predictions for the upcoming year?

Increase in Filing Fees for USCIS petitions and DOS Non-Immigrant Visa Fees

Our first prediction for the new year is an increase in filing fees at both the USCIS and Department of State levels, to help increase government resources during the ongoing COVID-19 pandemic. As you might recall, back in October of 2020, USCIS attempted to increase its filing fees to meet its operational costs. Among the petitions that were to be the most impacted were N-400 applications for naturalization, L visa petitions, O visa petitions, and petitions for qualifying family members of U-1 nonimmigrants.

Fortunately, in September of 2020, a federal court struck down the planned USCIS increase in fees arguing that the new fee increases would adversely impact vulnerable and low-income applicants, especially those seeking humanitarian protections.

We believe that early in the new year USCIS will again publish a rule in the Federal Register seeking to increase its fees to help keep the agency afloat. USCIS previously insisted that the additional fees were necessary to increase the number of personnel at its facilities to meet the increasing demand for adjudication of certain types of petitions. It is no secret that USCIS has experienced severe revenue shortfalls since the start of the pandemic as more and more families found it difficult to afford filing fees. Once those details have been made public we will provide more information right here on our blog and on our YouTube channel.

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Welcome back to the Immigration Lawyer Blog, and Happy New Year! We are excited to have you back. We hope you had a wonderful holiday break with your family and are ready to jump back into the latest in immigration news in the new year. In this video, attorney Jacob Sapochnick shares the latest update regarding the operational status of U.S. Consulates and Embassies worldwide during the ongoing COVID-19 pandemic.

Want to know more? Just keep on watching.

Overview

First let’s start with some good news. In October of last year, the Biden administration took some major steps toward opening the United States to international travelers, lifting many of the COVID-19 related geographic travel bans that were put in place by the Trump administration to reduce the rapid spread of COVID-19. To provide relief to visa holders, President Biden later signed a Proclamation allowing fully vaccinated international travelers to enter the United States beginning November 8, 2021, regardless of their country of origin. At the same time the Proclamation, revoked the previous geographic travel bans including Proclamation 9984, Proclamation 9992, Proclamation 10143, and Proclamation 10199 for those fully vaccinated.

Unfortunately, U.S. Embassies and Consulates have been slow to adapt to the ongoing COVID-19 pandemic, with many posts still limiting operational capacity based on country conditions and local regulations. Services have not returned to pre-pandemic levels and there is simply no semblance of normalcy at the Consular level. This has been extremely frustrating for visa applicants who have been waiting in the massive visa backlogs for an interview.  According to Department of State statistics, approximately 90% of Consular posts continue to be subject to pandemic related restrictions with some partially open and others providing very limited services.

Because most Embassies and Consulates are not fully operational, many applicants currently in the United States that have filed and received approvals for work visa related petitions with USCIS such as H-1B, O-1, E-2 petition-related approvals, etc. have not been able to leave the United States to return to their home country for visa stamping. This has caused even greater frustration among applicants who are essentially “trapped” in the United States due to their inability to obtain an appointment for visa stamping. That is because applicants encounter greater risks when they choose to leave the United States, due to the uncertain and indefinite amount of time they could be waiting for a visa stamping appointment to become available while overseas. An even greater fear is the risk that the applicant may lose his or her job while waiting for an appointment that may not come for a very long time.

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Welcome back to the Immigration Lawyer Blog, where we discuss all things immigration. In this video, attorney Jacob Sapochnick discusses the latest in immigration reform. Over the past few months, Democrats have been scrambling to pass immigration reform through a series of social spending proposals included in President Biden’s Build Back Better Act, a piece of legislation that would shield Dreamers, TPS holders, farm workers, and essential workers from deportation.

Want to know more? Just keep on watching.

Overview

For a third time the Democrats have tried and failed to introduce comprehensive immigration reform proposals in the reconciliation bill known as H.R. 5376 “the Build Back Better Act.”

What happened?

On December 16, 2021, the Senate Parliamentarian, Elizabeth MacDonough, rejected the most recent proposal by Democrats in Congress to introduce important protections for undocumented immigrants including Dreamers, TPS visa holders, farm workers, and essential workers. H.R. 5376 also included provisions that would extend work permits, provide temporary relief from deportation for undocumented immigrants who came to the United States before January 2011, and other provisions that would exempt certain employment-based and family-based immigrants from the numerical limitations prescribed by the Immigration and Nationality Act.

The Senate Parliamentarian quickly shot down the new proposals, stating that Congressional Democrats could not include a pathway to citizenship for undocumented immigrants in a social spending bill. Further, MacDonough indicated that if passed, the proposal would create a new class of about 6.5 million eligible individuals for permanent residency which was already prohibited in the previous two rejected proposals. She added that the most recent proposal by Democrats was deficient in the same way as the previous proposals stating, “there are substantial policy changes with lasting effects just like those we previously considered and outweigh the budgetary impact.”

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Welcome back to the Immigration Lawyer Blog, where we discuss all things immigration. In this video, attorney Jacob Sapochnick discusses a major new development in immigration law: H.R. 5376, the Build Back Better Act was passed by the U.S. House of Representatives on November 19, 2021 and will now move to the U.S. Senate for consideration.

In this blog post, we break down all the major immigration provisions of the Build Back Better Act, including the introduction of new fees that will apply to certain categories of immigrants to request a waiver of the numerical limitations under the law.

Want to know more? Just keep on watching.

Overview

What are the major immigration provisions of the Build Back Better Act?

If passed section 60001 of the House bill would amend certain provisions of the Immigration and Nationality Act and open a path to permanent residency for four classes of immigrants allowing them to adjust their status to permanent residence (a green card). To be eligible, applicants would be required to pay a supplemental fee of $1,500, have no criminal background, and have no inadmissibility issues.

Under the bill, the following individuals would be eligible to apply for permanent residency:

  1. Dreamers: young undocumented immigrants brought to the United States as children before 2007, who have continuously resided in the United States, gone to school, and who otherwise have no criminal record
  2. Essential Workers: The Act would also extend an opportunity to individuals in our workforce who have played an essential role in our society, especially throughout the COVID-19 pandemic, such as health care workers, energy and transportation workers, public works employees, and manufacturing workers, among others.
  3. Temporary Protected Status recipients: recipients of Temporary Protected Status would also be eligible to apply for permanent residency. Temporary Protected Status is a temporary designation given to eligible nationals of designated countries affected by armed conflict or natural disaster. The TPS designation allows recipients to live and work in the United States on a lawful temporary basis
  4. Deferred Enforcement Departure applicants: those who have received a grant of Deferred Enforced Departure would also be eligible to apply for permanent residency. Deferred Enforced Departure (DED) (formerly Extended Voluntary Departure) is a form of relief from removal that allows certain individuals from designated countries and regions facing political or civic conflict or natural disaster to live and work in the United States on a lawful basis.

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Welcome back to the Immigration Lawyer Blog, where we discuss all things immigration. In this video, attorney Jacob Sapochnick answers your frequently asked questions regarding the Employment-Based First Preference immigrant visa category also known as EB-1A, reserved for individuals of extraordinary ability in the sciences, arts, education, business, or athletics through sustained national or international acclaim. In this video, we talk about some of the major advantages of the EB-1 visa category including the direct path to permanent residency it offers without the need for sponsorship by a U.S. employer or qualifying family petition.

Want to know more? Just keep on watching.

EB-1A Frequently Asked Questions

Q: Who Qualifies for the EB-1A visa category.

The EB-1 visa is an immigrant visa category, that allows foreign nationals with extraordinary ability in the sciences, arts, education, business, or athletics to obtain permanent residency in the United States. The foreign national’s extraordinary ability must be shown through documentation evidencing sustained national or international acclaim by recognition in his or her field. Applicants who are successful are those that are at the top of their field and are known as individuals of extraordinary ability in their industry.

The general criteria are as follows:

#1: The person has extraordinary ability in the sciences, arts, education, business, or athletics, which has been demonstrated by sustained national or international acclaim, and whose achievements have been recognized in the field through extensive documentation.

#2: The person seeks to enter the United States to continue work in the area of extraordinary ability.

#3: The person’s entry into the United States will substantially benefit the United States in the future.

Q: How does USCIS define extraordinary ability?

USCIS defines a person of extraordinary as one of that small percentage of individuals who has risen to the very top of his or her field of endeavor, and that has sustained national or international acclaim. An individual’s extraordinary ability is demonstrated by providing documentation that supports the applicant’s claim of achievements and recognition in their field. Examples of documentation that is typically provided to support an EB-1A application includes evidence of a one-time achievement (major internationally recognized award) or at least 3 of the 10 listed criteria below (or comparable evidence if any of the criteria do not readily apply):

  • Evidence of receipt of lesser nationally or internationally recognized prizes or awards for excellence in your field of endeavor
  • Evidence of membership in associations in the field which demand outstanding achievement of their members
  • Evidence of published material about you in professional or major trade publications or other major media
  • Evidence that you have been asked to judge the work of others, either individually or on a panel
  • Evidence of your original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field
  • Evidence of your authorship of scholarly articles in professional or major trade publications or other major media (typically provided by scientists or researchers)
  • Evidence that your work has been displayed at artistic exhibitions or showcases
  • Evidence of your performance of a leading or critical role in distinguished organizations
  • Evidence that you command a high salary or other significantly high remuneration in relation to others in the field
  • Letters of recommendation from recognized experts in the field
  • Evidence of major grants, patents, or intellectual property awarded to the applicant

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Welcome back to the Immigration Lawyer Blog, where we discuss all things immigration. We hope you spent a wonderful Thanksgiving holiday with your loved ones. We are grateful for all our viewers and the support you give us on this platform. We thank you for your trust and support.

In this video, attorney Jacob Sapochnick answers one of your frequently asked questions: I have a green card, why should I become a U.S. Citizen? In this blog post, you will find out what your rights are as a permanent resident versus a U.S. Citizen, and some of the key advantages you have as a U.S. Citizen.

Keep on watching to find out more.

Overview

What is the difference between having a green card and U.S. Citizenship?

First, let’s discuss the basics. When a person wants to immigrate to the United States permanently, the first step is to apply for a green card (also known as permanent residence). There are various different ways a person can qualify for a green card. The most common avenues to obtain a green card are family sponsorship through a qualifying relative (U.S. Citizen or LPR spouse, child, parent, or sibling) or employment-based sponsorship, where an individual will first obtain a work visa based on a job offer and then become eligible to apply for permanent residence through their employer. There are also other special categories of immigrants such as asylum seekers, Violence Against Women Act (VAWA) victims of domestic violence, diversity visa lottery winners, and many others who also qualify for a green card. There also green card avenues for individuals of exceptional ability (EB-1), those whose employment is in the national interest (EB-2), and EB-5 immigrant investors who invest at least half a million dollars in a new business enterprise or Regional Center project. While there are many ways to obtain a green card, the ultimate goal is to obtain permanent residency.

Once a person has obtained a green card, typically that person must wait a number of years before being eligible to apply for U.S. Citizenship. For instance, those who obtained their green card based on marriage to a U.S. Citizen and continue to remain married, must wait 3 years from the date they became a permanent residence to apply for citizenship. All others must wait 5 years from the date they became a permanent resident to become eligible to apply for U.S. Citizenship.

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