23 Jul July 2021 Immigration Updates
Written by: Ashik R. Jahan Esq. and Navroz Tharani
F-1 Change of Status & The B-1/B-2 Bridge the Gap:
In an effort to reduce costs, U.S. Citizenship and Immigration Services announced a new policy that eliminates the need for individuals who have applied for a change of status to F-1 student to change or extend their nonimmigrant status while their initial F-1 Change of Status application is pending. This is a change from the previous policy that required applicants to maintain status by filing extensions up to 30 days before the program start date listed on their Form I-20 to ensure that they would not have a “gap” in status. The new USCIS policy will grant the change to status to F-1 effective the day an applicant’s Form I-539 (Application to Extend/Change Nonimmigrant Status) is approved. If the application is approved more than 30 days before the student’s program start date, the student must ensure they do not violate their F-1 status during that time.
Recent Court Decision on DACA:
Due to a recent decision from the Southern District of Texas in Texas v. United States, the Department of Homeland Security (DHS) is enjoined from granting new initial Deferred Action for Childhood Arrivals (DACA) requests. However, all individuals whose DACA requests were granted prior to this decision on July 16, 2021, will continue to have and be eligible to renew DACA and to request and receive advance parole. USCIS has also stated that in compliance with the decision, they are still accepting first-time DACA requests based on the terms of the DACA policy in effect prior to September 5, 2017, and in accordance with the Court’s December 4, 2020, order. Furthermore, DHS has stated that they will comply with the order while it remains in effect, but DHS may seek relief from the order.
A recent decision in the Northern District of California in Behring Regional Center LLC v. Wolf vacated the EB-5 Immigrant Investor Program Modernization Final Rule. Due to this, USCIS will apply the EB-5 regulations that were in effect before the rule was finalized on November 21, 2019. These regulations include: no priority date retention based on an approved Form I-526, required minimum investment amount of $1 million and minimum investment amount for investment in a Targeted Employment Area (TEA) of $500,000, permitting state designations of high unemployment TEAs, and prior USCIS procedures for the removal of conditions on permanent residence. This is reversal from the Modernization Final Rule which had increased those numbers to $1.8 million and $900,000, respectively.
Additionally, statutory authorization related to the EB-5 Immigrant Investor Regional Center Program expired on June 30, 2021. Due to the lapse, USCIS will reject the following forms received on or after July 1, 2021: Form I-924 (unless application type indicates that it is an amendment to the regional center’s name) and Form I-526 (when it indicates that the investment is associated with an approved regional center). Generally, USCIS will not act on any pending petition or application of these form types that is dependent on the statutory authorization until further notice.
AG Garland Returns Powers to Immigration Judges
Administrative closure is an important tool used by immigration judges to manage dockets and increase efficiency in the immigration courts. However, immigration judges had previously been stripped of that power by Attorney General (AG) Jeff Sessions in 2018 pursuant to Matter of Castro-Tum, wherein he concluded that no federal law or regulation authorized administrative closure. AG Garland said that because administrative closure does not terminate or dismiss deportation cases, it is an appropriate tool for immigration judges to manage their busy dockets. According to American Immigration Lawyers Association (AILA) President-elect Jeremy McKinney, “this has the potential to shift hundreds of thousands of cases out of the 1.3 million case backlog and bring more efficiency back to the process.” This decision is a step towards returning to a more effective immigration system.