• by Santhosh Rao

INTRODUCTION
January 2022 was a very active month for US Immigration. GLF provided updates via Google, LinkedIn and Twitter, on numerous US Immigration matters including:

1. DOS waived in-person visa interviews for certain non-immigrant categories.
2. USCIS further extended deadline for RFE response and other agency requests.
3. President revoked proclamation suspending entry of travelers from southern African region
4. DHS withdrew wage-based H-1B lottery rule
5. Important update on USA visa services in India
6. Transfer of underlying basis for I-485
7. State Department’s February 2022 Visa Bulletin summary

We at GLPO post regular updates on our Google, LinkedIn and Twitter handles.  Additionally, we also periodically send out GLF Newsletters when the subject matter is extensive and relevant for a detailed analysis.  Presented below is a consolidated summary of updates posted on GLF’s Google, LinkedIn and Twitter handles for January 2022. 

DOS WAIVED IN-PERSON VISA INTERVIEWS FOR CERTAIN NON-IMMIGRANT CATEGORIES
DOS had authorized consular officers to waive in-person interview requirement for the following visa categories through the end of 2022.

• H-1, H-3, H-4, L, O, P and Q visas who meet specific criteria, including that they are applying for a visa in their country of nationality or residence
• Temporary employment non-immigrant visa applicants who have a prior approval from USCIS with validity until December 31, 2022
• DOS is also extending waivers for certain students, professors, research scholars, short-term scholars, or specialists (F, M, and academic J visa applicants) through the end of 2022.

Waivers shall be allowed in the following cases:

• Individual Petition based such as H-1, H-3, H-4, L, O, P and Q applicants who were previously issued any type of visa, and who have never been refused a visa unless such refusal was overcome or waived, and applicants should have no apparent ineligibility or potential ineligibility;
• First time individual petition-based H-1, H-3, H-4, L, O, P and Q visa applicants who are nationals or citizens of a country that participates in the Visa Waiver Program (VWP) as long as they are not ineligible and have travelled to the United States using ESTA previously.

USCIS FURTHER EXTENDS DEADLINE FOR RFE RESPONSE AND OTHER AGENCY REQUESTS
Due to ongoing Covid-19 Pandemic, USCIS has further extended the flexibilities to its announcement issued on March 30, 2020. It provides additional time for Applicants, Petitioners, and Requestors to respond to the requests, notices, and decisions.

USCIS will consider a response to the following requests submitted within 60 days from the due date as mentioned in the request or notice, if issued between March 1, 2020, and March 26, 2022, inclusive.

• Requests for Evidence;
• Continuations to Request Evidence(N-14);
• Notices of Intent to Deny, Revoke and Rescind;
• Notices of intent to Terminate regional centers; and
• Motions to Re-open N-400 pursuant to Receipt of Derogatory Information After Grant.

USCIS will consider a response to the following requests submitted within 90 days from the due date as mentioned in the request or notice, if issued between November 1, 2021, and March 26, 2022, inclusive.

• Form I-290B, Notice of Appeal or Motion; or
• Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings.

PRESIDENT REVOKED PROCLAMATION SUSPENDING ENTRY OF TRAVELERS FROM SOUTHERN AFRICAN REGION
On December 28, 2021, President Biden revoked the Proclamation that had suspended entry of certain individuals physically present in countries where the Omicron variant of COVID-19 had been detected.

On November 26, 2021, President Biden on the recommendation of the CDC had issued a proclamation suspending the entry into the U.S., travelers from Botswana, Eswatini, Lesotho, Malawi, Mozambique, Namibia, South Africa, and Zimbabwe.

DOS has issued guidance for rescission of the travel restrictions to these countries with vaccination requirements in effect.

DHS WITHDREW WAGE BASED H-1B LOTTERY RULE
DHS withdrew its final rule modifying the H-1B CAP lottery selection process which allowed selections based on higher prevailing wages. On September 15, 2021, a Federal District Court had overturned the H-1B Selection Final Rule and remanded the matter to DHS.

As a part of the regulatory process, DHS has officially withdrawn the rule from the federal register – it was set to take effect from December 31, 2021. As a result, for the upcoming fiscal year (H-1B FY 2023 season), H-1B Lottery will continue to be a standard random selection process and not be based on Wages.

IMPORTANT UPDATE ON USA VISA SERVICES IN INDIA
U.S. Embassy and Consulates in India will release 20,000 additional interview waiver (drop box) appointments for Spring 2022 to allow qualified applicants to make use of the new interview waiver authority.

DOS directed consular officers to waive in-person interview requirement for certain categories of visa applicants through December 31, 2022. This new authorization applies to travelers applying for F-1, H-1B, H-3, H-4, non-blanket L, M, O, P, Q, and academic J visas who were previously issued any type of visa, if they are applying for a visa in their country of nationality or residence. Applicants renewing any visa within 48 months of expiration also continue to be eligible for interview waiver.

Due to reduced staffing and numerous pandemic-related disruptions since March 2020, appointment demand is high across all visa categories and wait times are lengthy for most routine non-immigrant visa appointments at the U.S. Embassy, New Delhi and the Consulates in Chennai, Hyderabad, Kolkata, and Mumbai.

Visa Fees Validity Extension: Applicants who have paid the visa application processing fee and who are still waiting to schedule a visa appointment will get extension in validity of your payment (known as the MRV fee) until September 30, 2023. This will allow all applicants to schedule a visa appointment as and when they are available with the existing fee.

TRANSFER OF UNDERLYING BASIS FOR I-485
On January 21, 2022, USCIS came out with a new memo and guidance (Transfer of Underlying Basis) for I-485s – in order to utilize all available visa numbers for FY2022. 

USCIS is encouraging applicants to interfile/transfer Form I-485 from one basis to another category (until September 30, 2022) provided they have: 

• Pending adjustment of status application in the EB-3 category; or
• Pending or Approved I-140 petition and an available EB-2 visa.

For example, if your EB-2 dates are current (under Final Action dates) and your I-485 was filed based on a downgraded EB-3 I-140, then you can switch basis for the I-485 to EB-2 I-140.

The request must be in writing with a completed I-485 Supplement J Bona Fide Job Offer (if required) and USCIS has the discretion to grant a transfer request provided:

• You have continuously maintained eligibility for adjustment of status
• Your adjustment of status application based on the original Form I-140 is still pending
• You are eligible for the new immigrant category
• You have a visa immediately available in the new immigrant category

USCIS will not provide a written response but will instead issue I-485J receipt notice. Applicants need not submit a new Form I-485(adjustment of Status Application) or filing fee with the transfer request. Requests must go to the following address:

U. S. Department of Homeland Security

USCIS Western Forms Center

10 Application Way

Montclair, CA 91763-1350

STATE DEPARTMENT’S FEBRUARY 2022 VISA BULLETIN SUMMARY
State Department had issued the February 2022 Visa Bulletin and here are the highlights:

• Family cases (other than F-2A) and all Employment cases will use the Filing Date Chart. F-2A is current – meaning Final Action applies.
• Final action dates for EB-2 India have advanced by 6 months to January 01, 2013.
• Dates for Filing for EB-2 India have advanced by 2 months to September 01, 2013.
• For EB-3 India Final Action dates and Filing Dates have not changed.
• India “Certain Religious Workers” category is current
• The DV-2022 annual limit was reduced to 54,850
• Employment Fifth Preference I5 and R5 Regional Center Visa Categories (I5 and R5): Division O, Title 1, Section 104 of the Consolidated Appropriations Act, 2021 extended the Immigrant Investor pilot program until June 30, 2021. No I5 or R5 visas may be issued overseas, or final action taken on adjustment of status cases after June 30, 2021. The final action dates for the I5 and R5 categories have been listed as “Unavailable” for January 2022.
• High demand in the EB-4 category may necessitate the establishment of a worldwide Final Action Date in the coming months to hold number use within the maximum allowed under the Fiscal Year 2022 annual limit.

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At GLF, we will continue to follow further developments in the above discussed and other matters, while we provide updates through our Newsletter as and when they become available. GLF receives numerous emails and phone calls every day seeking comments on various proposed bills and media reports that are often inaccurate. It is our job to separate fact from fiction and advice clients on important and relevant updates. The best way to receive accurate information is through GLF Newsletters.

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