DHS Publishes Final Rule Clarifying Public Charge Inadmissibility

Under the final rule, which is effective 105 days after it is published in the Federal Register, a noncitizen would be considered likely at any time to become a public charge if DHS determines that they are likely at any time to become primarily dependent on the government for subsistence. This determination will be based on:

• The noncitizen’s “age; health; family status; assets, resources, and financial status; and education and skills,” as required by the INA;
• The noncitizen’s filing of Form I-864, Affidavit of Support Under Section 213A of the INA, submitted on a noncitizen’s behalf when one is required; and
• The noncitizen’s prior or current receipt of Supplemental Security Income (SSI); cash assistance for income maintenance under Temporary Assistance for Needy Families (TANF); State, Tribal, territorial, or local cash benefit programs for income maintenance (often called “General Assistance”); or long-term institutionalization at government expense.

Most noncitizens who are eligible for public benefits are not subject to the public charge ground of inadmissibility. The final rule would generally not affect noncitizens who have already become lawful permanent residents, as they are generally not subject to public charge inadmissibility determinations. Some categories of noncitizens are exempt from the public charge ground of inadmissibility, including refugees, asylees, noncitizens applying for or re-registering for Temporary Protected Status, special immigration juveniles, T and U nonimmigrants, and self-petitioners under the Violence Against Women Act. The rule includes a list of the categories exempted by Congress from the public charge ground of inadmissibility.

Employment-Based Visa Numbers- October 2022 Eligibility to File Adjustment Applications

USCIS Allows Employment Authorization Document (EAD) Automatic Extension for 540 Days

Noncitizens in certain employment eligibility categories who timely file EAD application to renew their EADs may receive an up to 540-day automatic extension of their employment authorization (EAD) validity. The renewal application must be for the same employment eligibility Category Code as the current EAD (except that for EADs with an A12 or C19 Category, the EAD renewal application can have either A12 or C19).

The automatic extension begins on the “Card Expires” date on the front of the EAD and generally continues for up to 540 days, unless USCIS denies the renewal application earlier. To help employers calculate the maximum up to 540-day period, USCIS has developed the EAD Automatic Extension Calculator, which can be accessed below.

The temporary rule extends to employees in the following categories: A03, A05, A07, A08, A10, A17, A18, C08, C09, C10, C16, C20, C22, C24, C26, C31, and A12 or C19.

Automatic EAD Extension Calculator Tool provided by USCIS: https://bit.ly/3xcQQpI

USCIS Implements Premium Processing for Certain Previously Filed EB-1 and EB-2 Form I-140 Petitions

U.S. Citizenship and Immigration Services is implementing premium processing for certain petitioners who have a pending Form I-140, Immigrant Petition for Alien Workers, under the EB-1 and EB-2 classifications. This expansion of premium processing only applies to certain previously filed Form I-140 petitions under an E13 multinational executive and manager classification or E21 classification as a member of professions with advanced degrees or exceptional ability seeking a national interest waiver (NIW).

The expansion will occur in phases:

• Beginning June 1, 2022, we will accept Form I-907 requests for E13 multinational executive and manager petitions received on or before Jan. 1, 2021.
• Beginning July 1, 2022, we will accept Form I-907 requests for E21 NIW petitions received on or before June 1,2021, and E13 multinational executive and manager petitions received on or before March 1, 2021.

Employment-Based Visa Numbers- June 2022 Eligibility to File Adjustment Applications

Update from CBP on L-2 and E Spousal Work Authorization

The U.S. Customs and Border Protection (“CBP”) has confirmed to AILA that it proactively went into the electronic I-94 card system to update all L-2 I-94s for L-2 spouses, 22 years of age or older, to add “S” to the status for those who entered prior to 1/31/22. Those entering 1/31/22 or later have had
the “S” added upon entry to the U.S.

It is imperative to note that CBP did not add the “S” to L-2 I-94 cards for foreign nationals ages 18-21 at time of entry, due to uncertainty about whether they were dependent spouses or children. This subset of I-94s cannot be updated through Deferred Inspections Unit either. The “S” will need to be added to applicable I-94s on next entry to the U.S., by presenting evidence of spousal relationship, or through the next filing with USCIS.

As far as E spouses are concerned, CBP was unable to make this adjustment for E spouses as it is not possible to distinguish between an E-1/E-2/E-3 principal and an E-1/E-2/E-3 dependent spouse. To seek the “S,” E spouses will need to follow the instructions above.

USCIS is now issuing I-797 approval notices for L-2 and E spouses that specifically state the
notice may be used to document work authorization and for completion of Form I-9. For more information on this, please click here: https://www.uscis.gov/newsroom/alerts/uscis-updates-guidance-on-employment-authorization-for-e-and-l-nonimmigrant-spouses

Employment-Based Visa Numbers- March 2022 Eligibility to File Adjustment Applications

USCIS Decoupling Adjudication of EADs and Advance Paroles to Expedite EAD Issuance

Deviating from its practice of issuing “combo card” for EAD and Advance Parole approvals, the U.S. Citizenship and Immigration Services (USCIS) is now processing and approving the two applications separately. USCIS stated that the processing change is intentional as 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.