USCIS Issues Guidance on Adjustment of Status by Aliens Whose Conditional Permanent Residence Has Been Terminated

USCIS issued policy guidance explaining how USCIS applies Matter of Stockwell and clarifying when USCIS may adjust the status of an alien whose Conditional Permanent Resident (CPR) status has been terminated. An immigration judge does not need to affirm the termination of CPR status before the alien can file a new adjustment of status application.

An alien with CPR status obtains lawful permanent resident status either based on marriage to a U.S. citizen or lawful permanent resident (if the marriage is less than two years at the time the alien adjusts status or is admitted for lawful permanent resident status) or based on an immigrant investor (EB-5) visa.

An alien with CPR status is generally ineligible to adjust their status on a new basis under the provisions of section 245(a) of the Immigration and Nationality Act. However, USCIS may adjust an alien’s status if their CPR status has been terminated and:

• The alien has a new basis for adjustment of status;
• The alien is otherwise eligible to adjust status; and
• USCIS has jurisdiction over the adjustment of status application.

Time spent in the prior CPR status does not count toward the residency requirements for naturalization. This guidance applies to adjustment of status applications filed with USCIS on or after Nov. 21, 2019.

DHS Regulatory Agenda Includes Sweeping Changes To Employment-Based Programs

The Departments of Homeland Security has published its regulatory agenda that includes plans for significant changes to the H-1B and L-1 programs, H-4 employment authorization and changes to adjustment of status filing procedures.

Highlights of some of the employment-based immigration priorities:

• H-1B visas: USCIS seeks to revise the definition of an H-1B specialty occupation to “increase focus on obtaining the best and brightest.” It is projected to be published for public comment in December 2019. The rule is expected to revise the definitions of “employment” and “employer-employee relationship,” with a likely focus on restriction of offsite placement of H-1B workers. The agency will also propose additional requirements designed to ensure employers pay appropriate wages to H-1B visa holders.
• L-1 visas: DHS plans to revise the definition of “specialized knowledge”, to clarify the definition of employment and employer-employee relationship, and ensure employers pay appropriate wages to L-1 visa holders. This is expected to be published in September 2020.
• H-4 EAD rescission rule: The agency continues to pursue rescission of the current rule that allows certain H-4 spouses to apply for Employment Authorization Documents (EADs). It is now projected to be published March 2020. The details of the proposed rule – including whether currently valid H-4 EADs will remain valid until their expiration – are not yet known.
• Students and Exchange Visitors:
  • OPT: Immigration and Customs Enforcement intends to amend regulations to revise the practical training options available to nonimmigrant students on F and M visas. The target date for a proposed regulation is August 2020.
  • Maximum period of stay: ICE plans to set maximum periods of stay for students and exchange visitors and to eliminate the grant of stay based on their “duration of status” to a specified end date. This proposal is targeted for February 2020.
  • Optional Practical Training: ICE’s proposal will seek restrictions on 12-month optional practical training (OPT), STEM OPT extensions, and curricular practical training (CPT). This is expected to be published in August 2020.
• Elimination of Concurrent filing of I-140 and I-485 applications: DHS seeks to eliminate concurrent filing of I-140 and adjustment of status applications and make further changes to the dates when applicants can file for adjustment of status. The target date for proposed regulations is April 2020.

Temporary Extension of Expiring Immigration Programs

Congress has voted to temporarily extend federal government funding through December 20, 2019. The spending measure means that federal functions – including immigration operations – should continue uninterrupted through December 20, 2019, while FY 2020 budget negotiations continue. The bill now goes to President Trump, who is expected to sign the measure. The interim spending bill temporarily extends the following programs without change through December 20:

• E-Verify;
• The EB-5 regional center permanent residence program for foreign investors;
• The Conrad 30 waiver program for foreign medical graduates working in areas of the United States that are underserved by physicians; and
• The special immigrant non-minister religious worker program.

These programs were initially set to expire on September 30. In late September, Congress passed a measure extending them to November 21, 2019 while budget negotiations continued. With budget negotiations still ongoing, Congress has passed another short-term measure.

Federal Court Continues to Temporarily Block Health Insurance Requirement for Immigrant Visa Applicants

On November 2^nd, the US District Court for the District of Oregon issued a temporary restraining order (TRO) to block the new health insurance requirement for immigrant visa applicants from taking effect on November 3, 2019.

In October, President Trump issued a proclamation that would require immigrant visa applicants to demonstrate that they would have unsubsidized health insurance within 30 days after entry to the United States or sufficient funds to cover reasonably foreseeable medical expenses. The proclamation would have applied to most foreign nationals applying for immigrant visas on or after the effective date — including family-based, employment-based and Diversity Lottery immigrant visa applicants. It did not apply to nonimmigrant visa applicants or applicants for adjustment of status to permanent residence.

With the TRO in place, foreign nationals will not be subject to the proclamation when applying for immigrant visas for the time being. The TRO will remain in effect for up to 28 days while the court considers whether to issue a preliminary injunction that would block enforcement while the lawsuit is pending.

December 2019 Visa Bulletin

The US Department of State released the December Visa Bulletin. USCIS announced that it would accept adjustment of status applications based on the Dates for Filing chart for both family and employment based preference categories. However, as the family-based 2^nd preference category is Current, F2A applicants should use the Final Action Date chart. All other family-based preference categories should use the Dates for Filing chart.

EB-1, EB-2, and EB-3 Worldwide (including El Salvador, Guatemala and Honduras, Mexico Philippines and Vietnam) are eligible to file for Adjustment of Status in December as per the Dates for Filing Chart. Individuals with an approved or pending I-140 petition who are not from India or China should consider filing for Adjustment of Status before the categories backlog.

As to the employment-based preference category, the new cut-off dates for issuance of an immigrant visa will be as follows:

EB-1: EB-1 Worldwide (including El Salvador, Guatemala and Honduras, Mexico Philippines and Vietnam) advances 6 weeks to July 15, 2018. EB-1 China advances 10 weeks to May 15, 2017, and EB-1 India’s Final Action Date holds at January 1, 2015.

EB-2: China advances about 2 months in December to June 22, 2015, while EB-2 India advances 2 days. All other countries will remain current.

EB-3: China and India will remain the same. The Philippines will advance by one (1) month. All other countries will remain current.

EB-5: In December EB-5 China (C5 & T5) advances 2 weeks to November 15, 2014, EB-5 India (C5 & T5) advances to about 3 weeks to January 1, 2018, and EB-5 Vietnam (C5 & T5) advances 2 weeks to December 1, 2016.

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Mentions

• Greenspoon Marder
• U.S. Citizenship and Immigration Services

States

• New York