Adjustment of Status

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Biden Administration's Public Charge Rule Takes Effect Dec. 23, 2022

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As background, in a new rule issued September 29, 2022, the Biden Administration clarified and aligned the existing Public Charge rule with long-standing USCIS practice, which requires most “green card” applicants to show that they will not need to primarily rely on public assistance if they become a U.S. permanent resident.

The new rule requires additional disclosures from most applicants filing I-485 applications for Adjustment of Status. The additional information required on the revised Form I-485 includes the following for each applicant:

  • Household size

  • Household income

  • Household assets

  • Household liabilities

  • Highest level of education

  • Certifications, licenses, and educational certificates earned

  • Whether the applicant has received Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF), or State, Tribal, territorial, or local, cash benefit programs for income maintenance (often called “General Assistance” in the State context)

  • Whether the applicant has ever received long-term institutionalization at government expense

Note that unlike a previous version of the public charge rule, documentation of the above is not required in initial filings.  USCIS will issue a “Request for Evidence” if it requires further information to process your case.  As mentioned the Form I-485 has been updated to require this new information and the new form must be used for filings postmarked on or after the effective date of December 23, 2022.

 © Jewell Stewart & Pratt PC 2022

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November 2020 Visa Bulletin Update

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On October 29, 2020, the last day to file October adjustment of status filings, the Department of State issued the November Visa Bulletin, and USCIS announced that it is accepting the Dates for Filing Chart for November filings. The cutoff dates remain the SAME as the October Visa Bulletin, essentially extending today’s deadline to the end of November. Thank you for your patience as our team diligently works to assure that cases are filed ASAP.

© Jewell Stewart & Pratt PC 2020

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October 2020 Visa Bulletin Update

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On September 24, 2020, the Department of State issued its first Visa Bulletin of the new Fiscal Year for October 2020. USCIS then announced that it is accepting the Dates for Filing Chart for October filings. EB-1, EB-2, and EB-3 “All Other” are all current for filing. For EB-1 India and China, the cutoff date is September 1, 2020. EB-2 and EB-3 India/China also see modest advancements. We are immediately reviewing our files and reaching out to clients who are eligible to file. Thank you for your patience!

© Jewell Stewart & Pratt PC 2020

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USCIS fee changes take effect October 2, 2020

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09/29/2020 update:

On September 29, 2020, the U.S. District Court for the Northern District of California granted the motion for a preliminary injunction (“PI”) filed by eight nonprofit organizations in the ongoing Fee Rule litigation. The PI has a nationwide effect and bars the rule in its entirety for the duration of the litigation. Therefore, DHS may not require its new fees, forms, and other changes outlined below.

Original post:

On August 3, 2020, the Department of Homeland Security published a new rule containing numerous adjustments to U.S. Citizenship and Immigration Services’ (USCIS) filing fee schedule. In the new rule, DHS is planning on an upward adjustment of USCIS fees “by a weighted average of 20 percent.”

The rule, set to go into effect on October 2, 2020, further increases fees for many commonly used forms such as N-400 for naturalization, I-485 for Adjustment of Status (AOS), I-140 for immigrant visa petitions, and I-129 for nonimmigrant visa petitions, which will carry separate fees for each visa classification.

Other significant changes in the rule include:

  • Employment Authorization (EAD) and Advanced Parole (AP) are now “unbundled” from AOS applications – meaning that each form must be filed with the corresponding fees, whereas previously when filed with a Form I-485 the EAD and AP fees were waived.

  • AOS fees for children under 14 years old are now the same as the adult fee.

  • Separate biometrics fees are now subsumed within the form’s fee (in most cases the separate biometrics fee is no longer required).

  • Premium Processing Service (PPS) is changing to 15 business days instead of 15 calendar days.

  • Forms available online have different fees for filing online vs. paper; the filing the fee will be $10 lower for applying online.

The American Immigration Lawyers Association (“AILA”) has published a searchable table of fee adjustments, located here. USCIS will be publishing new forms 30 days before the rule will take effect, and new forms are required starting October 2, 2020, with some limited exceptions.

On August 20, 2020, AILA and partners sued USCIS over the rule, claiming that the agency lacked authority to issue the rule, and that its issuance violated the Administrative Procedures Act. The litigation is ongoing as of this writing.

© Jewell Stewart & Pratt PC 2020

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Update on Implementation of Public Charge Rule

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As previously posted, on Monday, January 27, 2020, the U.S. Supreme Court granted the administration’s request for a stay of the nationwide injunction against the administration’s public charge rule, which cleared a path for the Department of Homeland Security (“DHS”) to implement the public charge rule within the United States starting on February 24, 2020.

The new rule drastically changes the standard by which a foreign national is determined to be “likely at any time to become a public charge” (and consequently inadmissible to the U.S.), and affects not only family-based but also employment-based filings.

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Update on DHS and DOS Public Charge Rule

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Update:

USCIS announced on January 31, 2020 that it will implement the rule changes for filings received on or after February 24, 2020. New forms are to be released the week of February 3, 2020.

Original post:

As discussed in a prior post, the administration’s “public charge” rule changes the standard by which a foreign national is determined to be “likely at any time to become a public charge” (and consequently inadmissible to the U.S.). While litigation has delayed the implementation of the rule, on Monday, January 27, 2020, the U.S. Supreme Court granted the administration’s request for a stay of the nationwide injunction against the rule, which clears a path for the Department of Homeland Security (“DHS”) to implement the public charge rule within the United States, except for Illinois, which has a statewide injunction that remains in place.

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DHS Publishes Final Rule Expanding Public Charge Ground of Inadmissibility

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Update: This regulation is the subject of litigation. As of Friday October 11, 2019, there is a nationwide injunction against the enforcement of this rule by DHS. The Department of State (“DOS”) version of the rule, however, went into effect on October 15, 2019, but as of October 15, 2019, the DOS has not yet implemented that rule.

Original post:

Effective October 15, 2019, unless halted by litigation, the standard by which a foreign national is determined to be “likely at any time to become a public charge” (and consequently inadmissible to the U.S.) will drastically change.

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Instructions for the 2020 Diversity Visa Lottery Program now available

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The U.S. Department of State’s instructions for the 2020 Diversity Immigrant Visa Program (DV-2020) are now available. Entries for the DV-2020 program must be submitted electronically between October 3 and November 6, 2018.

There are no changes in eligibility this year. Eligibility requirements and entry instructions are on the U.S. Department of State’s DV lottery web site.

The congressionally-mandated Diversity Immigrant Visa Program is administered annually by the Department of State under Section 203(c) of the Immigration and Nationality Act (INA). This law provides for a class of immigrants known as diversity immigrants, with visas made available to persons from countries with historically low rates of immigration to the United States. For fiscal year 2020, 50,000 diversity visas will be available.

© Jewell Stewart & Pratt PC 2018

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New policy guidance drastically changes USCIS’s adjudications process, announces that denials will now result in removal (deportation) proceedings

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In a pair of policy memoranda released to the public in July 2018, the Administration is drastically changing the U.S. Citizenship and Immigration Service’s (USCIS, formerly INS) role in adjudications. Initially formed as the immigration benefits-adjudicating sub-agency when the Department of Homeland Security took over immigration functions from the Department of Justice after 9/11, USCIS is typically involved in a very low percentage of the overall enforcement actions of the DHS agencies. (Most enforcement is done by DHS’s other immigration sub-agencies, ICE and CBP.) For example, unless fraud or criminality is suspected, USCIS traditionally has not initiated removal (deportation) proceedings in the course of adjudicating benefits applications, such as nonimmigrant and immigrant visa petitions, applications for adjustment of status to U.S. permanent residence, or naturalizations. However, in a new policy memo released on July 5, 2018 (but dated June 28), entitled Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens (“NTA Memo”) and effective immediately, the Administration announced that USCIS will now initiate removal proceedings in a wide variety of circumstances.

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USCIS Interviews of Applicants for Employment-Based Permanent Residence – Update

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As discussed in an earlier post, U.S. Citizenship and Immigration Services (USCIS) announced on August 28, 2017 that it will cease waiving interviews of applicants applying for “adjustment of status” (AOS) to U.S. permanent residence (green card) based on employment.  As part of the Trump administration’s plan to apply “extreme vetting” to would-be immigrants (and others), employment-based AOS applicants will be required to undergo an in-person interview at a USCIS field office. Approximately 130,000 applicants are expected to be affected per year.