Category: Alerts

The Department of Homeland Security (DHS) previously announced a new spousal protection policy in keeping with the Biden-Harris administration’s commitment to keep families together.

What is Parole in Place?

DHS is establishing a process to consider, on a case-by-case basis, requests for Parole in Place from certain noncitizen spouses and step-children of U.S. citizens who have been in the U.S. in an undocumented status for at least a decade. If parole is granted, these noncitizens would receive a one-time period of authorized status that is valid for three (3) years.  During this period, they may be eligible to apply for work authorization that is valid for the duration of the parole period and will be eligible to apply for lawful permanent residence based on their marriage or step-child relationship to a U.S. citizen without having to leave the U.S.

When Will Applications Be Accepted?

U.S. Citizenship and Immigration Services (USCIS) is not currently accepting Parole in Place applications. USCIS announced that it will begin accepting applications starting August19, 2024.

Who is Eligible?

To be considered for a discretionary grant of parole under this process, applicants must:

• Be present in the U.S. without admission or parole;
• Have been continuously present in the U.S. for at least 10 years as of June 17, 2024;
• Have a legally valid marriage to a U.S. citizen as of June 17, 2024;
• Not have any disqualifying criminal history or otherwise constitute a threat to national security or public safety;
• Otherwise be eligible for Adjustment of Status; and
• Merit a favorable exercise of discretion.

USCIS may also consider certain noncitizen children of requestors for Parole in Place if, as of June 17, 2024, they were physically present in the U.S. without admission or parole, and have a qualifying stepchild relationship to a U.S. citizen.

How to Prepare Now

Applicants can begin to prepare to file an application for Parole in Place  by gathering evidence of eligibility, such as:

• Proof of a valid marriage to a U.S. citizen
• Proof of identity
• Evidence of the spouse’s U.S. citizenship
• Documentation to establish a continued presence in the U.S. for at least 10 years

For noncitizen children of requestors, evidence could include:

• Proof of the child’s relationship to the noncitizen parent
• Proof of the noncitizen parent’s legally valid marriage to a U.S. citizen
• Evidence of the child’s presence in the U.S.

All evidence must be valid as of June 17, 2024.

Next Steps

USCIS will publish a notice in the Federal Register that further explains eligibility requirements and the Parole in Place application process, including the appropriate form and associated filing fees.  USCIS also intends to provide FAQs and additional information on its Process to Promote the Unity and Stability of Families webpage. Gibney will continue to monitor for updates.

For questions, please email info@gibney.com or contact your dedicated Gibney attorney(s).

The Department of State released the August 2024 Visa Bulletin. USCIS will continue to accept employment-based Adjustment of Status applications based on the Final Action Dates chart. Most Employment-Based Categories hold steady under Final Action Dates for August with moderate advancement for India EB-2, EB-3 and Other Workers:

• EB-1 China Final Action Date will remain at November 1, 2022.
• EB-1 India Final Action Date will remain at February 1, 2022.
• EB-2 Final Action Date for all countries aside from India and China will remain at March 15, 2023. India will advance by one month to July 15, 2012 and China will remain at March 1, 2020.
• EB-3 Final Action Dates for all countries aside from India and China will hold steady at December 1, 2021. India will advance by one month to October 22, 2012 and China will hold steady at September 1, 2020.
• Other Workers India will advance by one month to October 22, 2012.
• S. Dept. of State expects further retrogression or possible unavailability for the EB-3 Worldwide category in September.

EMPLOYMENT-BASED (EB) PRIORITY DATE SUMMARY FOR Final Action DATES

USCIS confirmed that it will honor the Final Action Dates chart for purposes of eligibility to file an Adjustment of Status application. The Final Action Dates  are as follows:

EB-1, First Preference Category

• EB-1 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, and Philippines) remains current.
• EB-1 China and India will hold steady with a Final Action Date cutoff of November 1, 2022 and February 1, 2022, respectively.   

EB-2, Second Preference Category

• EB-2 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, and Philippines) will remain at March 15, 2023.
• China: Final Action Date will maintain a cutoff date of March 1, 2020.
• India:  Final Action Date will advance by one month to July 15, 2012.

EB-3, Third Preference Category (Professional and Skilled Workers)

• EB-3 Worldwide (including El Salvador, Guatemala and Honduras, Mexico and Philippines) will hold steady at December 1, 2021.
• China: Final Action Date will remain at September 1, 2020.
• India: Final Action Date will advance by approximately one month to October 22, 2012.

Other Workers

• Advancement for Other Workers India. All other categories will hold steady from last month:
  • Other Workers Worldwide (including El Salvador, Guatemala and Honduras and Mexico) will remain at January 1, 2021.
  • India will advance by one month to October 22, 2012.
  • Philippines will hold steady at May 1, 2020.
  • China will hold steady at January 1, 2017.

EB-5: Fifth Preference Category (Immigrant Investors)

• For the EB-5 Unreserved categories (C5, T5, I5, and R5), India and China maintain a cut-off date of December 1, 2020 and December 15, 2015, respectively. All other countries will remain current.
• The EB-5 “Set-Aside” categories (Rural, High Unemployment, and Infrastructure) will remain current.

Individuals with a priority date that is before the published cut-off date may file an Adjustment of Status application based on the dates outlined above.

WHAT SHOULD EMPLOYERS EXPECT?  

While the July Visa Bulletin predicated further retrogression in the EB-3 Worldwide  category, this was not implemented in the August Visa Bulletin. However, the Dept. of State indicates that the EB-3 Worldwide category will likely retrogress further or be made unavailable in September due to high demand and number usage in this category. Accordingly, Employers should plan to submit Adjustment of Status applications for eligible applicants in August, particularly EB-3 Worldwide applicants, as further retrogression and possibility unavailability is expected in September.

For additional information, please contact your designated Gibney representative or email info@gibney.com.

The Department of State released the July 2024 Visa Bulletin. USCIS will continue to accept employment-based Adjustment of Status applications based on the Final Action Dates chart. Most Employment-Based Categories will advance under Final Action Dates for July, while EB-3 Worldwide will retrogress by almost one year, with further retrogression projected in coming months:

• EB-1 China Final Action Date will advance by two months to November 1, 2022.
• EB-1 India Final Action Date will advance by eleven months to February 1, 2022.
• EB-2 Final Action Date for all countries aside from India and China will advance by two months to March 15, 2023. India will advance by two months to June 15, 2012 and China will advance by one month to March 1, 2020.
• EB-3 Final Action Dates for all countries aside from India and China will retrogress by approximately one year to December 1, 2021. India will advance by approximately one month to September 22, 2012. China will hold steady at September 1, 2020.
• S. Dept. of State expects further retrogression or possible unavailability for the EB-3 Worldwide category in August.

EMPLOYMENT-BASED (EB) PRIORITY DATE SUMMARY FOR Final Action DATES

USCIS confirmed that it will honor the Final Action Dates chart for purposes of eligibility to file an Adjustment of Status application. The Final Action Dates are as follows:

EB-1, First Preference Category

• EB-1 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, and Philippines) remains current.
• EB-1 China and India will advance with a Final Action Date cutoff of November 1, 2022 and February 1, 2022, respectively.

EB-2, Second Preference Category

• EB-2 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, and Philippines) will advance by two months to March 15, 2023.
• China: Final Action Date will advance by one month to March 1, 2020.
• India:  Final Action Date will advance by two months to June 15, 2012.

EB-3, Third Preference Category (Professional and Skilled Workers)

• EB-3 Worldwide (including El Salvador, Guatemala and Honduras, Mexico and Philippines) will retrogress by approximately one year to December 1, 2021.
• China: Final Action Date will hold steady at September 1, 2020.
• India: Final Action Date will advance by approximately one month to September 22, 2012.

Other Workers

• Advancement for Other Workers Worldwide. All other categories hold steady or advance moderately from last month:
  • Other Workers Worldwide (including El Salvador, Guatemala and Honduras and Mexico) will advance by approximately one year to December 1, 2021.
  • India will advance by one month to September 22, 2012.
  • Philippines will hold steady at May 1, 2020.
  • China will hold steady at January 1, 2017.

EB-5: Fifth Preference Category (Immigrant Investors)

• For the EB-5 Unreserved categories (C5, T5, I5, and R5), India and China maintain a cut-off date of December 1, 2020 and December 15, 2015, respectively. All other countries will remain current.
• The EB-5 “Set-Aside” categories (Rural, High Unemployment, and Infrastructure) will remain current.

Individuals with a priority date that is before the published cut-off date may file an Adjustment of Status application based on the dates outlined above.

WHAT SHOULD EMPLOYERS EXPECT?  

As specified in the Final Action Dates chart of the July Visa Bulletin, most Employment-Based Categories will advance or hold steady for the month of July though significant retrogression is noted for EB-3 Worldwide. Given continued high demand and number use in the EB-3 Worldwide category, the U.S. Dept. of States anticipates further retrogression or unavailability for this category in August.

Accordingly, Employers are advised to submit Adjustment of Status applications for eligible applicants in July, especially for those in the EB-3 Worldwide category, as further retrogression is expected in August.

For additional information, please contact your designated Gibney representative or email info@gibney.com.

Gibney attorneys and American Immigration Lawyers Association (AILA) members have been monitoring nationwide issues with U.S. Citizenship and Immigration Services (USCIS) processing related to erroneous rejections and delays in receipt issuance for applications submitted over the last several weeks. These processing issues are stemming from broad April 1 changes to filing locations, filing fees, and form editions for many different types of applications.

AILA has raised both issues to USCIS for clarification and guidance and has requested:

• For erroneous rejections, that members be allowed to refile with updated forms, but with fees established before April 1, along with the originally filed application(s) as proof of the timely filed requested benefit
• For applications and petitions filed as of April 1, that USCIS accept and receipt these submissions, but with the original date on which they were received at any USCIS facility
• For delayed receipts, that USCIS provide an update on this issue and inform members when they can expect to see a decrease in this major delay, particularly for premium processing and lockbox submissions

We are continuing to monitor this situation and will work with clients individually to determine the best course of action for them, such as whether to refile a previously submitted application or wait for USCIS clarification on these issues. For more information, please reach out to your Gibney attorney or email info@gibney.com.

Summer travel is expected to remain at record high levels in 2024, continuing the upsurge since pandemic-era restrictions were lifted. International travelers should expect busy consulates and U.S. Ports of Entry. Although many U.S. consulates have reduced visa wait times in recent months, foreign nationals may still encounter delays when applying for a visa. We encourage all travelers to plan ahead when traveling abroad and entering the U.S.

Our travel checklist is designed to help foreign nationals schedule appointments and gather required documentation in advance.

U.S. ENTRY: STATUS AND DOCUMENTATION CHECKLIST

• Confirm the validity of passports for all travelers. Valid passports are required for all international travelers and accompanying family members, including U.S. and Canadian citizens. Renew passports in advance to ensure at least six months’ validity at the time of any visa application or entry to the U.S. Many countries allow renewal of passports by mail through their consulates or embassies in the U.S.
• Carry all documents required for admission to the U.S. Upon arrival in the U.S., some entrants may need to show additional evidence of work or status authorization in addition to a passport and valid visa stamp. Documents vary by visa classification but may include an original I-797, Approval Notice; endorsed Form I-129S; Advance Parole Document; Employment Authorization Document (EAD); Form DS-2019 with travel authorization; and/or travel endorsed Form I-20. Proof of COVID-19 vaccination is no longer required for international travelers entering the U.S.
• Verify the U.S. admission classification/expiration date. Upon entry to the U.S., foreign nationals should expect a U.S. Customs and Border Protection (CBP) officer to create an electronic I-94 record of their admission. At many Ports of Entry, CBP has stopped issuing a passport stamp. If a stamp is issued, ensure that the classification is correct and immediately alert CBP to any errors.
• Review your I-94 record. After each entry to the U.S., foreign nationals should access and review the electronic I-94 record available on the CBP website. This is more important than ever, as CBP no longer stamps passports at entry. Expiration dates for the I-94, underlying petition, or work permit may be different from the expiration date on the visa in the passport or on the passport stamp, if issued. Send Immigration Counsel a copy of your I-94 once you have retrieved it.

CHECKLIST FOR FOREIGN NATIONAL EMPLOYEES (AND EMPLOYERS) WHO DO NOT HAVE A VALID VISA IN THEIR CURRENT PASSPORT

• Consult with Immigration Counsel in advance of travel. Immigration counsel can help to prepare for enhanced vetting and for the consular interview before you apply for a visa. Schedule consultations 60-90 days in advance whenever possible. Keep in mind that appointment wait times at U.S. consulates can range from a few days to a few months.
• Check the Consulate’s website prior to travel. If you require visa issuance at a consulate abroad, review information on specific procedures regarding booking visa appointments and documentation required for visa interviews. Consular procedures vary widely and are subject to change with little notice.
• Complete Form DS-160.This form is required for all temporary visa applicants including dependent spouses and children of principal visa holders. Retain a copy of the final form at the time of submission. Many consulates require that the visa application be completed prior to scheduling a visa appointment.
• Review your visa application/petition. Review the petition prepared by Immigration Counsel on your behalf prior to traveling, to ensure the accuracy of the information reported and consistency with applications.
• Review your online profiles. This includes information in online employee profiles and company pages as well as social media profiles. Government officials at USCIS, U.S. consulates, and U.S. Ports of Entry review online profiles of visitors and foreign workers applying for benefits or seeking entry to the U.S.
• Update company information. Employers should update company pages and sites such as Dunn & Bradstreet that may be referenced by immigration officers to verify employment or business information.
• Gather employment verification. If you are applying for a temporary work visa, most consulates require current employment verification letters from employers. Request these letters in advance of travel to allow adequate time for Human Resources to prepare them. Maintain copies of recent paystubs as evidence of current employment. Ensure that that the employment verification letter is consistent with any immigration petition underlying the visa application, if applicable.
• Disclose any arrests/detainment to Immigration Counsel. Consult with Immigration Counsel if you have been arrested or detained by law enforcement, even if not charged/convicted. Consult with counsel before departing the U.S. or applying for a visa or any other immigration benefit. Citations, arrests or detentions may require disclosure on applications and may impact immigration status and/or eligibility for immigration benefits.
• Check consulate wait times. Review the consulate website for visa appointments and processing times and alert Immigration Counsel immediately if visa issuance is delayed due to security or background clearance issues.
• Confirm consulate holiday hours. Consulates abroad observe both U.S. and local country holidays and some offices may be short-staffed due to vacations.
• Tip for visa appointments: If the consulate has long wait times, book an appointment at the earliest date possible and check the website regularly for newly released appointment times that are more desirable.

TRAVEL DOCUMENTS IF YOU DO NOT NEED A VISA FROM THE CONSULATE

• Visa Waiver Program travelers must have a valid ESTA approval. The Electronic System for Travel Authorization (ESTA) is a mandatory, online pre-screening system for Visa Waiver Program (VWP) travelers. ESTA is only available for travelers who are citizens of recognized VWP countries who wish to enter the U.S. for B-1 business or B-2 tourism purposes. VWP travelers should apply for ESTA at least 72 hours prior to travel and must obtain a valid ESTA approval before traveling. The ESTA clearance will be valid for up to two years. Note that a new ESTA approval is needed when a VWP traveler obtains a new passport and/or changes their name or country of citizenship, and when answers to any of the VWP eligibility questions (e.g., regarding an arrest or visa denial) change.
• Adjustment of Status applicants and Advance Parole travel documents. With the exception of some H and L visa holders, individuals with pending I-485, Adjustment of Status applications must have a valid original Advance Parole travel document issued prior to departing the U.S. Departing the U.S. without an Advance Parole may result in denial of the I-485 application. Note that the Advance Parole document must be valid when you depart the U.S. and valid when you return.

HELPFUL LINKS

• Find links to U.S. consular posts around the world at U.S. Consular Posts
• To find the nearest foreign consulate in the U.S. visit Foreign Embassies and Consulates in the U.S.
• Check U.S. consular wait times at Visa Appointment Wait Times
• For information on the Visa Waiver Program and current VWP countries visit Visa Waiver Program
• Obtain and review your electronic I-94 record at CBP I-94s
• Complete the DS-160 Online Nonimmigrant Visa Application at DS-160

For specific travel-related questions, please contact your Gibney representative or email info@gibney.com

The Department of State released the June 2024 Visa Bulletin. USCIS will continue to accept employment-based Adjustment of Status applications based on the Final Action Dates chart. All Employment-Based Categories will hold steady and remain unchanged for June under Final Action Dates with the exception of EB-3 India which will advance by one week.

EMPLOYMENT-BASED (EB) PRIORITY DATE SUMMARY FOR Final Action DATES

USCIS confirmed that it will honor the Final Action Dates chart for purposes of eligibility to file an Adjustment of Status application. The Final Action Dates  are as follows:

EB-1, First Preference Category

• EB-1 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, and Philippines) remains current.
• EB-1 China and India will hold steady with a Final Action Date cutoff of September 1, 2022 and March 1, 2021, respectively.

EB-2, Second Preference Category

• EB-2 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, and Philippines) will maintain a cutoff date of January 15, 2023.
• China: Final Action Date will hold steady at February 1, 2020.
• India:  Final Action Date will hold steady at April 15, 2012.

EB-3, Third Preference Category (Professional and Skilled Workers)

• EB-3 Worldwide (including El Salvador, Guatemala and Honduras, Mexico and Philippines) will maintain a cutoff date of November 22, 2022.
• China: Final Action Date will hold steady at September 1, 2020.
• India: Final Action Dates will advance by one week to August 22, 2012.

EB-3 Other Workers

• All countries except India will hold steady from last month:
  • Other Workers Worldwide (including El Salvador, Guatemala and Honduras and Mexico) will maintain a cutoff date of October 8, 2020.
  • India will advance by one week to August 22, 2012.
  • Philippines: May 1, 2020
  • China: January 1, 2017

EB-5: Fifth Preference Category (Immigrant Investors)

• For the EB-5 Unreserved categories (C5, T5, I5, and R5), India and China maintain a cut-off date of December 1, 2020 and December 15, 2015, respectively. All other countries will remain current.
• The EB-5 “Set-Aside” categories (Rural, High Unemployment, and Infrastructure) will remain current.

Individuals with a priority date that is before the published cut-off date may file an Adjustment of Status application based on the dates outlined above.

WHAT SHOULD EMPLOYERS EXPECT?  

As noted in the June Visa Bulletin, the Dept. of State has indicated that Final Action Dates for EB-2 and EB-3 Worldwide (including Mexico and the Philippines) will likely retrogress further in July to maintain number use within applicable annual limits. With further retrogression likely being implemented next month, Employers are advised to submit Adjustment of Status applications for eligible applicants in June.

For additional information, please contact your designated Gibney representative or email info@gibney.com.

The Department of State released the May 2024 Visa Bulletin. USCIS will continue to accept employment-based Adjustment of Status applications based on the Final Action Dates chart. Most Employment-Based Categories will hold steady and remain unchanged for May under Final Action Dates.

EMPLOYMENT-BASED (EB) PRIORITY DATE SUMMARY FOR Final Action DATES

USCIS confirmed that it will honor the Final Action Dates chart for purposes of eligibility to file an Adjustment of Status application. The Final Action Dates  are as follows:

EB-1, First Preference Category

• EB-1 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, and Philippines) remains current.
• EB-1 China and India will hold steady with a Final Action Date cutoff of September 1, 2022 and March 1, 2021, respectively.

EB-2, Second Preference Category

• EB-2 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, and Philippines) will maintain a cutoff date of January 15, 2023.
• China: Final Action Date will hold steady at February 1, 2020.
• India:  Final Action Date will hold steady at April 15, 2012.

EB-3, Third Preference Category (Professional and Skilled Workers)

• EB-3 Worldwide (including El Salvador, Guatemala and Honduras, Mexico and Philippines) will maintain a cutoff date of November 22, 2022.
• China: Final Action Date will hold steady at September 1, 2020.
• India: Final Action Dates will hold steady at August 15, 2012.

Other Workers

• All countries will hold steady from last month:
  • Other Workers Worldwide (including El Salvador, Guatemala and Honduras and Mexico) will maintain a cutoff date of October 8, 2020.
  • India: August 15, 2012.
  • Philippines: May 1, 2020
  • China: January 1, 2017

EB-5: Fifth Preference Category (Immigrant Investors)

• For the EB-5 Unreserved categories (C5, T5, I5, and R5), India and China maintain a cut-off date of December 1, 2020 and December 15, 2015, respectively. All other countries will remain current.
• The EB-5 “Set-Aside” categories (Rural, High Unemployment, and Infrastructure) will remain current.

Individuals with a priority date that is before the published cut-off date may file an Adjustment of Status application based on the dates outlined above.

WHAT SHOULD EMPLOYERS EXPECT?  

As expected based on the information from the April Visa Bulletin, most Employment-Based categories remain unchanged with no forward movement observed in May under Final Action Dates. As very little to no forward movement is expected in the coming months with the potential for retrogression to maintain number use within applicable annual limits, Employers are advised to submit Adjustment of Status applications for eligible applicants in May.

For additional information, please contact your designated Gibney representative or email info@gibney.com.