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Business Immigration in a Minute by Honigman LLP

August 9, 2021
  • A group of over 100 Indian and Chinese nationals who applied to adjust status in FY2021 have filed a lawsuit against U.S. Citizenship and Immigration Services (“USCIS”) challenging the agency’s significant delay in adjudicating employment-based green cards for FY2021. Due to the COVID-19 pandemic, there were over 122,000 unused family-based green cards in FY2020 that were “rolled-over” to the employment-based immigrant visa cap for FY2021 under the Immigration and Nationality Act’s “roll-over” system. However, when many foreign nationals applied to adjust status in FY2021 due to the increased employment-based visas available, USCIS was unprepared to process these applications and a significant backlog was created. To date, the lawsuit alleges that USCIS has failed to adjudicate over 273,000 of these applications. The plaintiffs allege that if USCIS does not adjudicate these pending applications by the end of FY2021 (September 30, 2021), these applicants will lose their chance to promptly adjust status and the additional employment-based visas will be wasted. As a result, the plaintiffs are asking the federal court to order USCIS to adjudicate their employment-based adjustment-of-status applications by the end of FY2021 or to reserve the visa numbers through the next fiscal year.

  • On a related note, the American Immigration Lawyers Association (“AILA”) has recently received reports that stakeholders are receiving direct communication in the form of text messages, phone calls, and emails from USCIS. These communications are instructing stakeholders to send their I-693, Report of Medical Examination and Vaccination Records in connection with their employment-based adjustment of status applications promptly to USCIS upon receipt of a Request for Evidence for the same documents. AILA reached out to USCIS to confirm the validity of these messages and USCIS has confirmed that these messages are real. USCIS stated that it is sending the messages in an attempt to adjudicate as many of the remaining pending adjustment of status applications as soon as possible prior to the end of FY2021 (September 30, 2021).

  • Last week, the Senate voted to confirm President Biden’s nominee, Ur Mendoza Jaddou, as USCIS Director. This appointment makes Director Jaddou the first Senate-confirmed woman and the first person of Arab and Mexican descent to ever lead USCIS. She is also the first Senate-confirmed leader of USCIS in over two years. Previously, Director Jaddou served as chief counsel for USCIS during the Obama administration.

  • The Department of Homeland Security, Department of Labor, and Department of State have issued their first new regulatory agendas under the Biden Administration. The agendas reveal each agency’s rulemaking priorities and timelines for the coming months. Notably, the agendas largely focus on employment-based immigration reforms and seek to initiate some of the following proposed rules in the near future: (1) modernization of the H-1B program, (2) expansion of USCIS premium processing, (3) increase of prevailing wages, (4) waiver of in-person interviews for certain repeat immigrant visa applicants, and (5) elimination of the B in lieu of H-1B and H-3 visa classifications. The details of the proposed and final rules related to these topics are confidential and will not be released until the rules are published in the Federal Register.

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