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The proposed rule includes the same provisions the DACA program has always operated under but does include some changes. First, the proposed rule would modify the existing filing process and fees by making the I-765 application for work authorization optional. Currently, it is required to file both the I-821D and I-765 for a total fee of $495. In making the I-765 optional, the proposed rule will charge a fee of $85 for the I-821D if filed alone, to maintain the current total fee structure for those who choose to file both forms ($85 for the I-821D + $410 for the I-765 for a total of $495). Next, the proposed rule would create a DACA-specific regulatory provision regarding work authorization eligibility in a new paragraph designated at 8 CFR 274a.12(c)(33). Further, the proposed rule would automatically terminate work authorization upon the termination of DACA. Finally, the proposed rule would reiterate the longstanding USCIS policy that those who have been granted deferred action are considered “lawfully present” and will not accrue unlawful presence in the U.S.

Ongoing hiring delays and high attrition rates are cited as issues for U.S. Citizenship and Immigration Services (USCIS) caseload backlog. The organization is being reprimanded by the U.S. Government Accountability Office (GAO) for not doing enough to reduce the millions of immigration cases under their inspection. The GAO recommends USCIS create a long-term strategy on workforce management to get the delays under control, among other suggestions.

In the GAO’s 72-page report, they cited USCIS applications and petitions remained between 8 million and 10 million from 2015 to 2020, respectively. However, caseloads grew by approximately 85% as delays in processing caused in part by the COVID-19 pandemic and related staffing shortages reduced their ability to adjudicate cases. Additionally, competing priorities, policy changes, and expanded interview requirements led to the extension of processing times.

On September 16, U.S. District Judge Emmet G. Sullivan granted an injunction to asylum-seekers facing expulsion from the U.S. under Trump-era Covid-19 regulations. The Biden Administration had allowed these regulations to continue since taking office.

Plaintiffs successfully sought an injunction against the collection of CDC orders that Judge Sullivan referred to as “the Title 42 Process.”

Generally, the Title 42 Process allows the Department of Homeland Security, working through Customs and Border Patrol, to expel asylum-seeking immigrants as quickly as possible – without any statutorily-required hearings – because of the spread of the deadly COVID-19 virus.

Since March of 2020, the CDC issued several iterations of a Final Rule invoking the never-before-used Title 42 public health laws to justify returning families to their home countries without standard removal proceedings. In so doing, the CDC primarily cited to issues posed by keeping asylum-seekers in the U.S. while they awaited interviews with CBP and the spread of COVID-19. Specifically, a lack of space in DHS centers leads to higher infection rates among immigrants and CBP agents, and a lack of resources to address the climbing infection rate called for a fast-acting solution.

In July 2021, USCIS reached a settlement in the class-action lawsuit filed by F-1 Students affected by lengthy adjudication for OPT applications. The U.S. District Court for the Southern District of Ohio issued the consent order for the settlement, which outlined that for OPT and STEM OPT extension applications filed between October 1, 2020, and October 31, 2021, USCIS will take official action (approve, deny, or issue a request for evidence) within 120-days. This was welcomed news for many, as the settlement provides much-needed relief in this area. Additional relief is offered through this settlement.

Democrats’ efforts to include immigration reform in the $3.5 trillion budget reconciliation package were denied by the Senate Parliamentarian. In the decision from Elizabeth MacDonough, she stated “The Policy changes of this proposal far outweigh the budgetary impact.” She stated inclusion in the spending bill is inappropriate.

The Democrats’ proposal included legal permanent resident status for 8 million noncitizens, including those with Temporary Protection Status, DACA holders, essential workers, and farm workers. The outlook for these proposed options remains uncertain.

In response to the COVID pandemic, four presidential proclamations greatly limited U.S. entry for non-citizens. However, the National Interest Exemption provides an option for U.S. entry for those who qualify. We know how these travel bans negatively impact individuals and companies and disrupt planned project execution and milestones. We help our clients navigate through these restrictions to minimize their financial and reputational exposures. The key to a successful application for an NIE exemption is understanding the requirements and having all information available.

In recognition that processing times have increased over the last year, USCIS announced it is extending the time that a receipt notice can be used as evidence of status to 24 months for those with pending I-829 or I-751 petitions. Previously, a receipt notice for these petitions served as evidence of status for 18 months. The 24-month extension went into effect on September 4, 2021, and applies to pending and newly filed forms I-829 (Petition by Investor to Remove Conditions on Permanent Resident Status) and I-751 (Petition to Remove Conditions on Residence).

USCIS announced that starting October 1, anyone subject to the immigration medical examination requirement is required to be fully vaccinated against COVID-19 before the examination. Individuals who are applying for green cards within the U.S. or for U.S. visa status abroad must receive the full COVID-19 vaccine before submitting to the medical examination, and they must provide documentation of vaccination to the civil surgeon in person at the time of the exam - only then may a civil surgeon sign off on the applicant’s Form I-693 (Report of Medical Examination and Vaccination Record).

The announcement from USCIS references the Center for Disease Control (CDC)’s August 17 update to the Vaccination Technical Instructions for Surgeons. The CDC update states that, because applicants complete the medical exam “well in advance of adjustment of status,” an applicant who tests negative for COVID-19 during the exam “does not guarantee that the applicant will not have COVID-19 at the time the applicant becomes a Lawful Permanent Resident.” Therefore, the CDC’s official stance is that receiving a full vaccine “will provide the best protection from COVID-19 for applicants and U.S. communities.”

The U.S. Citizenship and Immigration Services (USCIS) released the October 2021 Visa Bulletin, the first visa bulletin in the fiscal year 2022. USCIS announced applicants must use the Date of Filing Chart to determine if they are eligible to submit their I-485, Adjustment of Status Application (AOS). If the priority date for your employment or family-based category is before the date listed below and you are in the United States, you may file your application to adjust your status. Individuals must also include their applications for employment authorization and travel permission, assuming all other requirements are met.

Very little movement has been made in employment-based visa applications, primarily due to ongoing constraints due to the backlog due to Covid. F2A family-based applicants may file using the Final Action Dates chart.

A D.C. federal judge blocked the U.S. State Department policy that set diversity visas at a low priority. The judge instructed the government to make “good-faith efforts” to process the 2021 diversity lottery holders before a September 30, 2021, deadline.

The Biden administration is instructed to reprioritize diversity visa winners from the bottom of the list and immediately begin processing the applications. The judge reserved the right to reserve visas for processing in the next fiscal year once it is determined how many visas can be processed by the end of September.