September 15, 2023 - Weekly Immigration News Update

Posted by Keshab R. Seadie | Sep 15, 2023 | 0 Comments

Dear Clients and Colleagues,

We hope this newsletter finds you well. In this month's update, we bring you important information from the U.S. Citizenship and Immigration Services (USCIS) regarding recent policy clarifications and changes.

USCIS Clarifies Guidance for EB-1 Eligibility Criteria

The USCIS has issued policy guidance aimed at enhancing clarity and transparency regarding eligibility criteria for the extraordinary ability (E11) and outstanding professor or researcher (E12) EB-1 immigrant visa classifications. This update includes examples of evidence that may meet the required criteria, as well as guidance for evaluating such evidence, particularly in science, technology, engineering, or mathematics (STEM) fields. The intent behind these clarifications is to assist petitioners in submitting the appropriate evidence to establish eligibility for beneficiaries.

This development signifies a commitment to making the immigration process more accessible and understandable for those seeking to benefit from these visa classifications. For a comprehensive understanding of these changes, please refer to the Policy Manual.

Affirmative Asylum Applicants Must Provide Interpreters Starting September 13, 2023

For those involved in affirmative asylum applications, it is imperative to note that, effective September 13, 2023, USCIS requires applicants who are not fluent in English or wish to proceed with their asylum interview in a language other than English to bring their own interpreters. This update underscores the importance of effective communication during the asylum interview process.

By ensuring that interpreters are present, USCIS aims to facilitate a smoother interview experience and enhance the clarity and accuracy of communication between applicants and immigration officials.

What is an unlawful presence and how to file an F-1 Visa Reinstatement?

F-1 visa students who violate the terms of their visa by failing to comply with the Department of Homeland Security rules risk falling out of their visa status, losing benefits such as on-campus employment, and CPT and OPT opportunities. 

To regain the F-1 status, students have two options: 

  1. Applying for reinstatement by demonstrating the violation was out of their control and that they intend to continue their studies. This option is available if the student hasn't been out of status for more than 5 months and meets other criteria including not having engaged in unauthorized employment.

  2. Obtaining a new SEVIS record and leaving and re-entering the U.S. with a new I-20, a valid visa, and passport. This path has implications for practical training eligibility, requiring the student to complete one academic year of full-time enrollment before qualifying for CPT or OPT again.

The reinstatement process includes consulting with a Designated School Official (DSO) and compiling a range of personal, financial, and academic documents including a detailed explanation of why the student fell out of status. The documents along with Form I-539 and I-539A (if applicable), the SEVIS I-901 fee proof, and a biometrics service fee need to be submitted to the USCIS for processing. During this period, students must maintain full-time enrollment and are advised against traveling out of the U.S. as it could be seen as abandoning the reinstatement application. 

It's notable that the process involves considerable documentation and adherence to guidelines set by the USCIS, including those regarding fees and biometric appointments. The processing times can be checked on the USCIS website. If the reinstatement application is denied, the student will have to leave the U.S. to avoid unlawful presence, with limited options for appeal. Reinstatement is a crucial procedure with serious implications for the student's stay in the U.S and their academic journey. It is a structured process necessitating careful adherence to regulatory requirements.

What is an unlawful presence?

“Unlawful presence" refers to the period during which an individual remains in the United States without adhering to the conditions or beyond the duration allowed by their visa or by the Department of Homeland Security (DHS).

On February 6, 2020, a permanent injunction was issued, restricting the DHS from enforcing its policy guidance from August 8, 2018, regarding unlawful presence calculations for F, M, and J nonimmigrant visa categories. Consequently, the USCIS reverted to its previous policy for these visa categories, which stipulates that unlawful presence for individuals admitted for the "duration of status" (D/S) is not counted until a USCIS officer or an immigration judge formally finds a status violation, typically during the adjudication of a request for some benefits such as reinstatement. If a student's reinstatement application is denied, the consequences can be substantial, including the potential initiation of removal (deportation) proceedings through a Notice to Appear the triggering of INA § 222(g) overstay provisions, and the accumulation of unlawful presence under INA 212(a)(9)(B). These repercussions can significantly disrupt a student's education and hamper their future eligibility for immigration benefits. Given the severity of the potential outcomes, it is imperative for students to consult with experienced immigration attorneys before making decisions on how to regain their lawful status in the U.S., to understand all the nuances and ensure they take the steps that are most conducive to protecting their interests.

DV Program 2023 Reaches Its Limit Early 

In accordance with the ongoing commitment to foster and maintain diversity in the United States, the DV program has been granting up to 55,000 immigrant visas annually since its inauguration in 1990. The program offers a chance to individuals from countries with historically low rates of immigration to the U.S. to potentially secure a U.S immigrant visa.  However, this year the DOS reached the annual DV issuance limit before the end of the fiscal year with over 54,000 issuances/adjustments of status worldwide out of the 54,833 available Diversity Visas for the fiscal year 2023. Consequently, all available visas under the DV-2023 program have been issued as of the mentioned date.  

Addressing Country-Specific Caps The DOS maintains a regulation whereby no single country is permitted to receive more than seven percent of the available DVs in a fiscal year to preserve the diversity objective of the program. Algeria and Nepal are nearing this threshold, prompting necessary measures including the potential cancellation of visa interview appointments to prevent exceeding the specified country limits.  

Looking Ahead: DV-2025 Program While the early conclusion of the 2023 program might be a disappointment to many selectees still waiting for a visa, the DOS encourages all eligible individuals to apply for the 2025 DV program. The entry period for this is slated to open in early October of this year.  It is essential to remember that being selected does not ensure a visa interview or visa grant; it only indicates eligibility to apply for the visa. The DOS selects a number higher than the available visas to guarantee the issuance of the maximum number of visas under the DV program, accounting for individuals who may not qualify or opt not to proceed with the application. 

A Commitment to Diversity The DOS reaffirms its dedication to facilitating travel for DV recipients and acknowledges the valuable additions these individuals bring to the U.S communities.  As we anticipate the opening of the 2025 DV program entry period, we stand with all aspiring applicants and hope for a smooth and inclusive process. Let us continue to embrace and celebrate diversity, which is the backbone of the rich and vibrant community that is the United States.  Stay tuned for more updates and remember to prepare for the forthcoming DV-2025 entry period. Let us build a diverse and united future.

We understand that these updates may raise questions or concerns for many of you. Our dedicated legal team is here to provide guidance and support through these changes. If you have any questions or require assistance with your immigration matters, please do not hesitate to reach out to us.

Best Regards,

Keshab Raj Seadie
Law Offices of Keshab Raj Seadie, P.C.

Disclaimer: This newsletter is intended for informational purposes only and does not constitute legal advice. Always consult an attorney for personalized advice.

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