USCIS to Issue Employment Authorization Documents (EAD) Valid for 2 Years for Certain Green Card Applicants

The USCIS has released updated policy guidance stating that it will grant EADs valid for 2 years to certain green card applicants including those applying based on an approved Form I-130 (family-based green card) or Form I-140 (employment-based green card).   

Both initial and renewal EAD applications will be eligible for the 2-year validity period. However, replacement EADs will not be issued for 2-year validity period but will rather be issued with the same validity dates as the original EAD that is being replaced.

The USCIS has historically issued EADs that are valid for a 1-year period to green card applicants. While there is generally no fee for a filing an EAD application for green card applicants, almost 370,000 green card related EAD applications were filed with the USCIS in fiscal year 2020. It is hoped that by issuing EADs valid for 2 years instead of 1 year, the USCIS will be able to redistribute limited resources to alleviate current processing backlogs.

JULY 2021 VISA BULLETIN: ANALYSIS AND PREDICTIONS

The Department of State has just issued the July 2020 Visa Bulletin.  This is the tenth Visa Bulletin of Fiscal Year 2021. This blog post analyzes this month's Visa Bulletin.

Visa Bulletin

Table A: Final Action Dates -- Applications with these dates may be approved for their Green Card (Permanent Residency card) or Immigrant Visa appointment.

Employment	All Chargeability	CHINA	INDIA	PHILIPPINES
1st	C	C	C	C
2nd	C	1-Dec-17	1-Jun-11	C
3rd	C	1-Jan-19	1-Jan-13	C

Table B: Dates of Filing

The USCIS will be using the Table A: Final Action Dates chart for I-485 employment-based filings. A beneficiary must be current on the above Table A chart in order to file their I-485, Adjustment of Status applications.  USCIS Visa Bulletin Dates

MU Law Analysis

Both the Philippines and Worldwide (All Other) EB-3 continue to be current. Our opinion remains that these categories will stay current for the foreseeable future and into 2022.

India EB-1 remains current, which continues to lead to extra visas will flowing down to India EB2 and EB3.  India EB-2 again moved ahead, this time by 6 months, a positive trend that has continued and can be expected to continue.  Similarly, India EB-3 leapt ahead 14 months.  We will see favorable processing times for the rest of 2021 and into 2022.

China EB-2 and EB-3 again both moved forward by seven and four months, respectively.  This trend should continue into 2022.  China EB-1 remains current.

USCIS RESCINDS POLICY THAT ALLOWED OFFICERS TO DENY A CASE INSTEAD OF ISSUSING A REQUEST FOR EVIDENCE

In 2013 USCIS issued a policy memorandum that allowed USCIS officers to issue a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) for a case that included insufficient evidence, before denying the case. 

In 2018 USCIS rescinded this 2013 policy and issued a new policy, stating that USCIS officers could deny a case for lack of initial evidence without first sending an RFE or NOID.

On June 9, 2021 USCIS issued a policy update, stating that the USCIS would revert back to the 2013 policy.  The USCIS will now issue RFEs and NOIDs where additional evidence could demonstrate eligibility for an immigrant benefit. This policy will give petitioners and beneficiaries the opportunity to correct mistakes and minor errors. This policy is effective immediately.

USCIS RECEIVES 308,613 H-1B CAP REGISTRATIONS

USCIS announced that it has received 308,613 H-1B cap registration during the March 2021 filing period, including petitions filed for the advanced degree exemption.  About 48% of the registrations were for foreign-national advanced degree students.

This is considerably more than the 275,000 received last year (March 2020, FY 2021).  It is also far more than the 201,000 during the April 2019 (FY 2020) filing period and 190,000 H-1B petitions received during the April 2018 (Fiscal Year 2019) filing period and.

USCIS is in the process of notifying H-1B cap lottery winners.  Based on the Congressional H-1B cap of 85,000 H-1B cap winners, Petitioners should expect about 27% of their H-1B cap filings to be H-1B cap winners because Congress only allows the USCIS to approve H-1B cap petitions.  H-1B winners have 90 days to submit their full H-1B cap petition to the USCIS. 

As has been the case since the launch of the on-line registration system in March 2020, the USCIS will continue to update the H-1B cap winners list.  Therefore, additional winners may be added throughout the spring and summer.  USCIS is not expected to contact any H-1B lottery losers until all 85,000 approval notices are issued.

USCIS UPDATES GUIDANCE ON EXPEDITED PROCESSING

USCIS has announced new guidance on when an application may be granted expedited processing.  Requests for expedited processing are considered by USCIS, on a case-by-case basis, when premium processing service is not available.  Generally, expedited requests are considered based on the following criterion:

• Severe financial loss to a company or person;
• Urgent humanitarian reasons;
• Cultural and social interests of the United States; or
• Clear USCIS error.

USCIS has clarified the criteria for requesting expedited processing. A company may request expedited processing when it has suffered severe financial loss due to a delay in processing. Companies can successfully demonstrate severe financial loss if they are at risk of failing, losing a critical contract, or required to lay off other employees. They can also demonstrate severe financial loss if a failure to expedite would result in a loss of critical public benefits.

Nonprofit organizations may now request expedited processing, even if premium processing is available. USCIS will grant nonprofit petitioners expedited processing, without a fee, provided they are designated as a nonprofit organization by the IRS and their requests are made in furtherance of cultural and social interests of the United States.

USCIS further reinforced that expedited requests for noncitizens with a final order of deportation or noncitizens in deportation proceedings, are still coordinated between USCIS and U.S. Immigration and Customs Enforcement (ICE). This updated policy is effective immediately.