USCIS Updates Policy Pertaining to Adjustment of Status Adjudications

On November 17, 2020, the U.S. Citizenship and Immigration Services (USCIS) updated its policy guidance regarding discretionary factors to consider when making a decision pertaining to adjustment of status applications. In adjustment cases, the applicants have the burden of demonstrating eligibility, including that a favorable exercise of discretion by USCIS is warranted.

If an applicant otherwise establishes eligibility and USCIS finds the positive discretionary factors in a particular case outweigh the negative factors, the officer should exercise favorable discretion and approve the adjustment application. Conversely, if the negative factors outweigh the positive factors an exercise of discretion to deny is appropriate.

USCIS considers the totality of the circumstances, which may include factors such as an applicant’s conduct, character, family or other lawful ties to the United States, immigration status and history, or any other humanitarian concerns, to determine whether the applicant warrants a favorable exercise of discretion.

The Nov 17 2020 guidance consolidates existing guidance on the privileges, rights, and responsibilities of lawful permanent residents and it the updated guidance provides a list of factors and factual circumstances for adjustment of status that officer consider when undertaking discretionary analysis.  For example, in employment-based adjustment cases – the officers could look at following (the list is not exhaustive):

• Positive Factor: Employment history, including type, length, and stability of the employment.
• Positive Factor: Education, specialized skills, and training obtained from an educational institution in the United States relevant to current or prospective employment and earning potential in the United States.
• Negative Factor: History of unemployment or underemployment
• Negative Factor: Unauthorized employment in the United States
• Negative Factor: Employment or income from illegal activity or sources, including, but not limited to, income gained illegally from drug sales, illegal gambling, prostitution, or alien smuggling.

In family-based adjustment cases – the officers could look at following (the list is not exhaustive):

• Positive Factor: Family ties to the United States and the closeness of the underlying relationships.
• Positive Factor: Hardship to the applicant or close relatives if the adjustment application is denied.
• Positive Factor: Length of lawful residence in the United States, status held and conduct during that residence, particularly if the applicant began his or her residency at a young age.
• Negative Factor: Absence of close family, community, and residence ties

USCIS Updates Policy Guidance Pertaining to Naturalization Process

On November 18, 2020, the U.S. Citizenship and Immigration Services (USCIS) updated its policy guidance to effectuate changes regarding prerequisite of Lawful Admission for Permanent Residence under all applicable provisions for purposes of Naturalization.

Applicants for naturalization must meet the fundamental requirements as lawful permanent residents (LPR) such physical presence, continuous residence among other criteria. In addition to meeting other requirements under the pertinent naturalization rules, an applicant has the burden of establishing that he or she was lawfully admitted to the United States for permanent residence. Key updates to the Policy:

• An applicant is ineligible for naturalization in cases where the applicant did not obtain LPR status lawfully (including cases where the U.S. government was unaware of disqualifying material facts and had therefore previously granted adjustment of status to that of an LPR or admitted the applicant as an LPR).
• Provides further guidance on circumstances under which USCIS may find an applicant to not have been lawfully admitted for permanent residence and therefore ineligible for naturalization.
• USCIS will review to determine whether an applicant has abandoned his or her LPR status during the adjudication of the naturalization application.
  
• USCIS may deny naturalization applications, filed on or after November 18, 2020 (effective date of policy), if the applicant is in removal proceedings because USCIS lacks the authority to consider the merits of a naturalization application if the applicant has a pending removal proceeding initiated by a warrant of arrest.

October 2020 Employment-Based Visa Numbers – Eligibility to File Adjustment of Status Applications

Employment- based	All Countries  Except Those Listed in the Table	CHINA- mainland born	EL SALVADOR GUATEMALA HONDURAS	INDIA	MEXICO	PHILIPPINES
1st	C	01SEP20	C	01SEP20	C	C
2nd	C	01OCT16	C	15MAY11	C	C
3rd	C	01JUN18	C	01JAN15	C	C
Other Workers	C	01OCT08	C	01JAN15	C	C
4th	C	C	01FEB18	C	C	C
Certain Religious Workers	C	C	01FEB18	C	C	C
5th Non- Regional Center (C5 and T5)	C	15DEC15	C	C	C	C
5th Regional Center (I5 and R5)	C	15DEC15	C	C	C	C

Settlement with USCIS in EAD Class Action Lawsuit

The settlement has three main components:

• Sub-class 1, defined as the group of individuals who have received an I-765 approval notice, and the production of the EAD has been ordered but not completed.
  • There were 27,829 individuals in this group as of Thursday, August 20, 2020.
  • All EADs for this group will be produced and mailed by Friday, August 28, 2020.
• Sub-class 2, defined as the group of individuals who have received an I-765 approval notice, and the production of the EAD has not been ordered.
  • There are 17,736 individuals in this sub-class.
  • For the most part, the reason the EAD has not been ordered is that biometrics have not been captured. USCIS claims biometrics are required. This issue was not resolved by the Court. Biometrics for this sub-class have all been scheduled, and except for 18 individuals, will be completed by September 15, 2020.
  • For the remaining 18 individuals, the biometrics will be completed by September 22, 2020. The EADs for this sub-class will be produced and mailed within 7 business days of the capture of biometrics.
• USCIS agreed to post a notice on its website that for the interim period until the EAD cards can be produced, employees may use a Form I-797 Approval Notice, with a notice date on or after December 1, 2019 through and including August 20, 2020 informing an applicant of an approval of a Form I-765 as a valid List C document for Form I-9. The notice was posted on August 19, 2020, and will be effective through December 1, 2020. All of the EAD cards should be produced and delivered before this date.

It is believed that there were approximately 30,000 EADs produced and mailed between the date the complaint was filed on July 22, 2020 and the date the class list was prepared on August 20, 2020.

F-1 Unemployment Period and SEVIS Info Update

F-1 Unemployment Period and SEVIS Update

The U.S. Citizenship and Immigration Services is reminding F-1 nonimmigrants participating in post-completion Optional Practical Training (OPT), and their designated school officials (DSOs), that they must update the employer information in the Student and Exchange Visitor Information System (SEVIS), including unemployment data.  Federal regulations require F-1 nonimmigrants to notify their DSO within 10 days of any changes to their personal or employment information. In turn, DSOs must update SEVIS with the alien’s information within 21 days. This reminder helps ensure F-1 nonimmigrants and DSOs properly comply with existing requirements.

F-1 nonimmigrants may update their employer information through the Student and Exchange Visitor Program (SEVP) Portal, a tool that allows F and M visa holders participating in post‑completion practical training to report accurate and timely information directly to SEVP. DSOs may update the information in SEVIS following the instructions to add, edit, or delete the OPT employer.  If F or M nonimmigrants are unsure of whether they should report information using the portal, or provide the information to their DSO, they should contact their DSO for instructions.

As noted above, F-1 nonimmigrants and DSOs must ensure that information is entered in a timely manner within SEVIS, so that the visa holder’s record is current and reflects actual employment data. SEVIS will count each day without employer information toward the total number of unemployment days allowed. Failure to update employer information in SEVIS to reflect that the F-1 nonimmigrant is employed may result in any or all of the following actions:

• The F-1 nonimmigrant exceeding unemployment limits and therefore failing to maintain F-1 nonimmigrant status, rendering them removable, unless they are otherwise in a period of authorized stay;
• SEVP setting an F-1 nonimmigrant’s SEVIS record to “terminated” if they have exceeded unemployment limits;
• S. Citizenship and Immigration Services (USCIS) initiating revocation proceedings for an F-1 nonimmigrant’s Employment Authorization Document if they have exceeded unemployment limits; and/or
• The exceeded unemployment limits negatively affecting the F-1 nonimmigrant’s future benefit requests filed with USCIS.

August 2020 Employment-Based Visa Numbers – Eligibility to File Adjustment of Status Applications

Employment- based	All Countries  Except Those Listed in the Table	CHINA- mainland born	El-Salvador Guatemala Honduras	India	Mexico	Philippines	Vietnam
1st	C	08FEB18	C	08FEB18	C	C	C
2nd	C	15JAN16	C	08JUL09	C	C	C
3rd	01APR19	15FEB17	01APR19	01OCT09	01APR19	01APR19	01APR19
Other Workers	01APR19	01AUG08	01APR19	01OCT09	01APR19	01APR19	01APR19
4th	C	C	01APR17	C	15JUN18	C	C
Certain Religious Workers	C	C	01APR17	C	15JUN18	C	C
5th Non-Regional Center (C5 and T5)	C	08AUG15	C	C	C	C	22JUL17
5th Regional  Center (I5 and R5)	C	08AUG15	C	C	C	C	22JUL17

U.S. Dept of State resumes Consular Operations in a Phased Manner

The State Dept. suspended consular operations across the world in March 2020 as a result of global COVID-19 pandemic.  The State Dept. recently announced that beginning on July 15, 2020, consular posts may begin a phased reopening of routine visa services, depending on local conditions. The State Dept. also indicated that visa applicants/stakeholders should monitor embassy and consular post websites for updates on the status of their services. Some posts have already begun posting relevant guidance.  It is imperative to note that the State Dept. does not have a specific date regarding each consular post’s resumption of operations.  Consular websites could be found here: https://www.usembassy.gov

Thousands of EAD and Green Card documents are not Printed by USCIS

The U.S. Citizenship and Immigration Services recently confirmed that some 50,000 green cards and 75,000 other employment authorization documents (EAD) promised to immigrants have not been produced/printed.  A class action lawsuit has been recently filed with regard to failure to print/produce the EAD cards however there is no current ongoing litigation regarding non-production of green cards. The primary reason cited for non production of these documents is the budgetary constraint.