Immigration Law Update

June 2021

U.S. Citizens Abroad May Return to the U.S. on Expired Passports

In light of the delays renewing U.S. passports abroad, U.S. Customs and Border Protection (CBP) and the U.S. Department of State (DOS) both have relaxed their entry guidelines for U.S. citizens with recently expired passports.

Under the new rules U.S. citizens can return to the United States with a somewhat recently expired U.S. passport through December 31, 2021, if they:

Are a U.S. citizen.
Are currently abroad seeking to return to the United States.
Are flying directly to the United States, a U.S. territory, or have only a connecting flight through a foreign country on their return.
Have a passport that expired on or after January 1, 2020, that was originally valid for 10 years (or 5 years if the individual was 15 years of age or under when the passport was issued).
Have an expired passport that is undamaged and in their possession.

To be clear, these accommodations are only for U.S. citizens who are currently outside the United States. An expired U.S. passport cannot be used to travel from the U.S. to an international destination for any duration longer than an airport connection. In addition, return to the United States requires proof of a negative COVID-19 test result, taken within 72 hours of return flight departure.

DOS Establishes Standards to Address COVID-related Immigrant Visa Appointment Backlog

The U.S. Department of State recently (DOS) established a tiered approach to address the large backlog in the processing of immigrant visa applications at U.S. Consulates abroad that has accumulated since the onset of the COVID-19 pandemic. This effort will prioritize cases in the following manner:

Tier One: Immediate relative inter-country adoption visas, age-out cases (cases where the applicant will soon no longer qualify due to their age), and certain Special Immigrant Visas (SQ and SI for Afghan and Iraqi nationals working with the U.S. government).
Tier Two: Immediate relative visas, fiancé(e) visas, and returning resident visas.
Tier Three: Family preference Immigrant Visas and Special Immigrant Visas for certain employees of the U.S. government abroad.
Tier Four: All other Immigrant Visas, including employment preference and diversity visas.

As consular operations have been extremely limited over the past year in many locations, we expect these backlogs to endure for quite some time.

Presidential Proclamation Suspends Entry of Nonimmigrants Physically Present in India

As a result of the surging pandemic in India, President Biden issued a Presidential Proclamation suspending entry into the United States for nonimmigrants who were physically present in India during the 14 days before seeking to enter the United States.

This notably does not apply to U.S. citizens and lawful permanent residents (LPR). Other exceptions include certain family members of U.S. citizens or LPRs, including spouses, minor children, parents (provided that the U.S. citizen or LPR child is unmarried and under the age of 21), and siblings (provided that both the sibling and the U.S. citizen or LPR are unmarried and under the age of 21).

Certain prohibited categories may obtain a National Interest Exception, such as immigrants and fiancé(e)s, certain students and other education exchange visitors, and derivative family members accompanying a noncitizen permitted to enter under the proclamation.

USCIS Suspends Biometrics Requirement for Certain I-539 Applicants

On May 3, 2021, USCIS announced that it will suspend the biometrics requirements for certain I-539 applicants for a two-year period beginning on May 17, 2021. The biometrics suspension will apply to the H-4, L-2, and E-1, E-2, and E-3 categories of Form I-539 applications if they are:

Pending on May 17, 2021, and have not yet received a biometric services appointment notice; or
New applications received by USCIS on or after May 17, 2021.

Suspension of the biometrics requirement should speed up the processing of currently pending I-539 applications as well as those to be filed in the future. We anticipate that this change will also speed the processing of EAD (work authorization) applications for those eligible, which currently face backlogs approaching one full year.

Biometric Appointments with USCIS Can Now be Rescheduled by Phone

USCIS announced that those seeking to reschedule biometric appointments at an Application Support Center may now accomplish this by contacting the USCIS Contact Center (800-375-5283) by phone. Previously, such requests had to be submitted in writing. Applicants must establish good cause for rescheduling and must call before the date and time of their original appointment.

USCIS Reinstates Policy Granting Deference to Prior Determinations of Eligibility for Extension Applications

USCIS reversed a controversial policy change from the Trump administration that removed deference to prior adjudications for applicants for extensions. The move restores the prior policy that had been in place for decades and allows companies and foreign nationals to plan their future with the understanding that a prior adjudication has precedential value when a company seeks to renew the visa status of one of its employees.

Exceptions still apply when there was a significant error, change in circumstances or eligibility, or new information that adversely impacts the eligibility of the petitioner, applicant, or beneficiary.

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If you have questions or would like to learn more about the items discussed above or other immigration topics, please contact Karen Moss or Brad Ortman of the Immigration Law Group at Nicola, Gudbranson & Cooper via email or at (216) 621-7227.

Bradley L. Ortman and Karen Gabriel Moss
Nicola, Gudbranson & Cooper LLC

_{This Immigration Law Update contains general information that should not be considered legal advice or legal opinion concerning individual situations. Legal counsel should be consulted for specific advice.}