Категория: Publications

THE PUBLIC CHARGE FINAL RULE IS GONE

Finally, we are delighted to say that we have some good immigration news!

So called “wealth test” (the Public Charge Final Rule) implemented by Trump administration has been revoked. This wealth test introduced a set of rules limiting immigration based on applicant’s health condition, prior use of public benefits, ability to speak English, education, credit history, debt, income, etc.

Pursuant President Executive Order 14012 of March 9, 2021, USCIS has announced that it would immediately stop applying the Public Charge Final Rule to all pending applications that would have been subject to the rule. Instead, the 1999 Interim Field Guidance that was in place before the Public Charge Final Rule would be applied.

Below is the guidance that can hopefully assist you in understanding the new-old requirements.

Please note that this is just a general guidance and it might be not applicable to your specific circumstances. Please consult an attorney before taking any step discussed below.

GUIDANCE FOR ADJUSTMENT OF STATUS APPLICATIONS

If the Adjustment of Status Petition is filed on or after March 9, 2021:

Applicants should not submit the Form I-944, Declaration of Self-Sufficiency, or any evidence or documentation required in furtherance of the Public Charge Final Rule with their Form I-485.
At this time, USCIS has announced that it will not reject any Form I-485 based on the inclusion or exclusion of Form I-944.

If the Adjustment of Status Application was (1) filed on or before March 8, 2021, (2) USCIS adjudicates the case on or after March 9, 2021, and (3) at the time of filing Applicant or Petitioner included information pertaining to the Public Charge Rule with their Adjustment of Status Petition:

USCIS will not consider any information that relates solely to the Public Charge Final Rule, including, for example, information provided on Form I-944, evidence or documentation submitted with Form I-944.
Any other information received will be evaluated consistent with the statute, regulations, and policies in effect at the time of adjudication.

If the Adjustment of Status Application was (1) filed on or before March 9, 2021, (2) receives or received a RFE or NOID concerning information that solely concerns the Public Charge Final Rule, including but not limited to Form I-944 AND (3) a response is due on or after March 9, 2021:

Applicants need not respond to the sections or inquiries of the RFE or NOID that solely pertain to the Form I-944 or Public Charge Rule.
Applicants are still required to respond to the RFE or NOID that otherwise pertains to the eligibility for the immigration benefit sought.
If USCIS requires additional information or evidence to make a public charge inadmissibility determination under the statute and their inquiry is consistent with the 1999 Interim Field Guidance, USCIS will issue a subsequent RFE or NOID.
To avoid an incorrect denial for failure to respond, applicants are encouraged to respond to the RFE or NOID with a copy of the guidance published by USCIS and state that as the requirement has been rescinded, a response is unnecessary, even if the RFE inquiries solely on the Form I-944 or Public Charge Rule.

GUIDANCE FOR NONIMMIGRANT PETITIONS TO CHANGE / EXTEND STATUS

If Applicants or Petitioners file for an Extension or Change of Status for Form I-129, Form I-129CW, Form I-539, or Form I-539A on or after March 9, 2021:

Applicants and Petitioners should not provide information related to the receipt of public benefits on Form I-129 (Part 6), Form I-129CW (Part 6), Form I-539 (Part 5), and Form I-539A (Part 3).

If the Applicants or Petitioners filed for an Extension or Change of Status for Form I-129, Form I-129CW, Form I-539, or Form I-539A (1) on or before March 8, 2021, (2) USCIS adjudicates the case on or after March 9, 2021 and (3) at the time of filing Applicant or Petitioner included information pertaining to public benefits:

USCIS will not consider information on the receipt of public benefits on Form I129 (Part 6), Form I-129CW (Part 6), Form I-539 (Part 5), and Form I-539A (Part 3).
Any other information received will be evaluated consistent with the statute, regulations, and policies in effect at the time of adjudication.

If Extension or Change of Status for Form I-129, Form I-129CW, Form I-539, or Form I-539A was (1) filed on or before March 9, 2021, (2) receives or received a RFE or NOID concerning information that solely concerns the Public Charge Final Rule, 944 AND (3) a response is due on or after March 9, 2021:

Applicants or Petitioners need not respond to the sections or inquiries of the RFE or NOID that solely pertain to the Public Charge Final Rule.
Applicants or Petitioners are still required to respond to the RFE or NOID that otherwise pertains to the eligibility for the immigration benefit sought.
If USCIS requires additional information or evidence to make a public charge inadmissibility determination under the statute and their inquiry is consistent with the 1999 Interim Field Guidance, USCIS will issue a subsequent RFE or NOID.
BEST PRACTICE: To avoid an incorrect denial for failure to respond, applicants are encouraged to respond to the RFE or NOID with a copy of the guidance published by USCIS and state that as the requirement has been rescinded, a response is unnecessary, even if the RFE inquires solely on the Public Charge Final Rule.

IMMIGRANT VISAS ISSUANCE RESUMPTION

RESCISSION OF PRESIDENTIAL PROCLAMATION 10014

On February 24, 2021 President Biden rescinded Presidential Proclamation 10014, which suspended issuance of immigrant visa for different categories of applicants. Presidential Proclamation 10052 remains in effect.

Immigrant visa applicants who have not yet been interviewed should wait for instructions from the NVC.
Immigrant visa applicants whose petitions remain valid and who were previously interviewed but refused visas due to PP 10014 should wait for instructions from the US embassy or consulate where they were interviewed. The DOS will reconsider cases that were previously refused because of PP 10014 and will inform applicants if additional information is needed.
Diversity visa 2021 applicants should wait to be notified of the scheduling of an interview.
Diversity visa 2020 applicants whose visas remain valid may enter the US immediately.
Diversity visa 2020 applicants whose visas have expired will not be issued replacement visas, but the applicants who received diversity visa 2020 as a result of orders in the court case Gomez v. Trump may travel to the US on an expired visa.
Diversity visa 2020 applicants were not issued visas before September 30, 2020 for any reason will not be reconsidered for visa issuance.
US embassies and consulates will resume their routine visa services on a post-by-post basis.

EXTENSION OF THE IMMIGRANT VISA BAN

EXTENSION OF THE IMMIGRANT VISA BAN – PROCLAMATION OF 12/31/2020

President Trump, by Proclamation of December 31, 2020, extended the validity of Proclamation 10014 of April 22, 2020 and Proclamation 10052 June 22, 2020 to March 31, 2021. Proclamations 10014 and 10052 limited obtaining many categories of visas for applicants abroad (not in the US):

Biden’s inauguration is scheduled for January 20, 2021. Biden has already announced that he plans to lift many of the immigration restrictions imposed by President Trump shortly after taking the office. It is possible that Trump’s proclamation of December 31, 2020 will also be revoked.

Proclamation Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak of April 22, 2020.

Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak of June 22, 2020

I-751 AND N-400 PENDING CONCURRENTLY

Considering the extended processing time for I-751 petitions to remove condition, it is often the case that while I-751 is still processing, an applicant become eligible for naturalization and file an N-400.

Below are some clarifications from USCIS in connection with Forms I-751 and N-400, Application for naturalization pending at the same time.

USCIS attempts to adjudicate I-751 and N-400 petitions at the same time. If the USCIS office conducts same-day naturalization oath ceremony, for the petitioners with the approved I-751 and N-400 it is still possible to undergo same-day oath ceremony.
If the petitioner relocates while the I-751 and N-400 are pending it should not affect the eligibility for an interview waiver, but the petitioner needs to file AR-11 Change of address.
An I-751 is not automatically ineligible for an interview waiver if the petitioner has an N-400 pending. Please refer to USCIS guidance: https://www.uscis.gov/sites/default/files/document/memos/2018-11-30-PM-602-0168-revised-interview-waiver-guidance-for-form-I-751.pdf.
If the I-751 is denied, the N-400 will be denied based on the I-751 denial.
If an N-400 is denied because the I-751 was denied, but the I-751 is later reopened USCIS may consider reopening the N-400, however, it is not guaranteed.
If USCIS needs additional evidence on a Form I-751, it will issue a Request for Evidence. In general, a conditional permanent resident should wait to receive the RFE before submitting additional evidence.
If the conditional permanent resident needs to change the basis of filing on the Form I-751, the conditional permanent resident can mail that request along with any supporting evidence and a copy of the Form I-751 receipt notice to the office that is currently processing that individual’s Form I-751.

Our experienced immigration attorneys will be glad to guide you through the process and help you with your questions.

Read about naturalization N-400…

NEW CIVICS TEST – NATURALIZATION

Attention to all individuals planning to apply for US citizenship by naturalization!

USCIS announced on 11/13/2020 that it plans to implement a new civics test for those applicants who apply after December 1, 2020. The civics test is a part of the naturalization process. The test is given during the naturalization review and accesses the applicant’s knowledge of the American history and government.

The old rule

Under the old rule the applicant was given 10 questions out of 100 questions, and had to answer 6 correctly in order to pass. If you applied for naturalization before December 1, 2020, you should use the 2008 version of the test to prepare for your interview. It is also a good idea to mention the interviewing officer that the 2008 civics test is applied to you.

The new rule

Under the new rule the applicant will be given 20 questions out of 128 questions and has to answer 12 questions correctly. The interviewing officer should ask all 20 questions and cannot terminate the test until all 20 questions are asked.

The study materials for the old and new civics test

USCIS stated that the changes were an effort to keep the test current and relevant, but the new test obviously makes it more difficult to obtain US citizenship. It is recommended to use all available resources to prepare for the test. Our clients find that using various apps has shown the effectiveness.

USCIS: Civics Test Study Tools:

This is the official app of USCIS. Unfortunately, it does not mean that all the answers there are up to date. Some applicants claim that the test is not being updated regularly.

Citizenship Study Guide:

Great tool and webpage. This test includes audio testing which is really useful considering that the actual questions will be asked by the interviewing officer.

US Citizenship Test 2020:

Great tool which provides no audio feature but many other options are available: overview, sorting through the questions, creating favorable folder.

US CONSULATES RESUME ROUTINE VISA SERVICES

The Department of State has announced the resumption of visa services, which were suspended in March 2020. Resumption dates will be determined separately for each US embassy / consulate by evaluating the epidemiological situation in a particular country.

The US Embassy in Russia has not yet announced the resumption of visa services.

The Department of State also reports that the embassies will prioritize immigrant petitions from immediate relatives of US citizens, as well as applications for adoption. U.S. Embassies will also continue to provide emergency visa services and services in accordance with Presidential Executive Order 10052.

ALERT! CHANGES IN PUBLIC CHARGE RULE

On November 2, 2020, the district court in Cook County, Illinois, et al v. Wolf et. al., (19-cv-6334), granted summary judgment in favor of Plaintiffs on their claim that DHS’s Public Charge Rule, 84 Fed. Reg. 41,292 (Aug. 14, 2019) violates the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et. seq. The district court specifically ruled that (1) the public charge exceeds DHS’s authority under the public charge provision of the INA, 8 U.S.C. § 1182(a)(4)(A); (2) is not in accordance with law; and (3) is arbitrary and capricious.

On November 3, 2020, the Seventh Circuit has issued an administrative stay of the N.D. of Illinois decision to vacate the DHS Public Charge Final rule pending an appeal which is effective immediately. Accordingly, adjustment of status applications on Form I-485 must be still filed with the Form I-944.

We will keep you updated.

ONLINE FILING OF PETITION FOR ALIEN RELATIVE

Form I-130, Petition for Alien Relative has been made available for online filing. Form I-130 is one of the most widely used USCIS forms.

The petitioner needs to have an online account with USCIS.

Our office receives various feedback from our clients about electronic filing. Unfortunately, there are still multiple technical problems with online submissions. Paper version filing remains the most secure way to file with USCIS.

ADDITIONAL DELAYS FOR EB-1 APPLICANTS

Nobody waits for good news in the immigration law anymore. Updates only talk about new additional delays and termination of immigration benefits.

EB-1 applicants have been placed in a very unfavorable position comparing to the rest of employment-based categories under the current administration. Instead of dealing with the issue, the crisis has been deepened according to the latest bulletin of the Department of State.

EB-1 category is a green card for the top professionals in any field (sports, artists, musicians, TV and film professionals, businessmen, doctors, researchers, etc.). Think about the real cream of the crop. Someone would have thought that the talents of this caliber should be getting the first turn as their work can greatly benefit the U.S. However, according to the August bulletin of the Department of State, these talented people would have to wait their years to get a green card. Is it really how it should work? It used to be just a matter of a few months just before the current administration. Of course, we are still waiting for USCIS to publish its August bulletin which can differ from the the Department of State, but one thing can be stated with certainty, the EB-1 category processing time will increase significantly.

What does it tell us? The country, the power of which has been built on the talents of the immigrants, now does not need them any longer? This steering direction continues to be a mystery.

Read the bulletin here

EB-5 REPORT – PROCESSING TIME

On June 26, 2019 USCIS published another quarterly report on I-526 / I-829 processing times. The news are not encouraging – the processing time for I-526 has increased by 62% in January-March 2019.

Read the full version of the report on the USCIS webpage – read report