Year: 2022

Final Rule 
Effective May 4, 2022, U.S. Citizenship and Immigration Services (USCIS) announced that the Department of Homeland Security (DHS) is temporarily amending existing DHS regulations related to expiring employment authorization and Employment Authorization Documents (EADs) for certain renewal applicants. The prior extension period of up to 180 days will automatically increase to up to 540 days from the expiration date stated on their current EADs.
Background
By 2019, USCIS was in a precarious financial situation that impaired the efficient completion of caseloads. The COVID-19 pandemic exacerbated these challenges in 2020, with a hiring freeze and furlough threat leading to workforce attrition and severely reduced capacity. In 2021, before USCIS could recover from these fiscal and operational impacts, there was a sudden and dramatic increase in EAD initial and renewal filings.
As a result, processing times for Form I-765 have increased to such a level that the 180-day automatic extension period for certain Form I-765 renewal applicants’ employment authorization and EADs is no longer sufficient to prevent or mitigate the risk of gaps in employment authorization and documentation, as it was originally intended.
For some applicants, the automatic extension period has already expired. As a result, these renewal applicants may be unable to obtain employment or continue employment with their current employers, and employers may suddenly be faced with finding replacement workers during a time when the U.S. economy is experiencing a high demand for labor as compared to the available supply of workers. To alleviate this hardship for both employees and employers, DHS has determined that it is imperative to immediately increase the automatic extension period of EADs for eligible Form I-765 renewal applicants during a temporary period of time. This temporary increase will also allow USCIS an opportunity to address staffing shortages, implement additional efficiencies, and ultimately reduce processing times for EAD applications.
Who does the extension apply to?
The up to 540-day automatic EAD extension only applies to those EAD categories currently eligible for the previous up to 180-day automatic extension of employment authorization and EAD validity. USCIS will provide up to 360 days (for a total of up to 540 days) of additional automatic extension time to eligible applicants with a pending EAD renewal application on the temporary rule’s effective date and for 540 days thereafter (that is, from May 4, 2022 to Oct. 26, 2023).
Applicants with pending I-765 renewal applications as of May 4, 2022, will not receive a new receipt notice reflecting the increased EAD automatic extension period. However, Form I-797C notices that refer to a 180-day automatic extension will still meet the regulatory requirements for employment authorization. Therefore, individuals who show Form I-797C notices that refer to a 180-day extension, along with their qualifying EADs, still receive the up to 540-day extension under this rule. For guidance on completing Form I-9, Employment Eligibility Verification, visit I-9 Central.
For additional information on EAD renewals, visit our Automatic Employment Authorization Document (EAD) Extension page.

A significant agreement has been reached to permit the adjustment of certain Foreign Nationals with potential who would otherwise be barred from receiving Legal Permanent Residence due to a prior removal order or a lack of legal entry. This results from a US District Court case for the District of Columbia, CARCEN vs JADDOH (Originally vs CUCCINELLI), and will be implemented over the next few weeks. The pertinent text of the settlement is the following:

For a period from this date (March 21, 2022) through at least January 19, 2025 (the “Relevant Period”), unless an individual is an enforcement priority under DHS’s operative civil immigration enforcement guidelines, the Office of the Principal Legal Advisor (“OPLA”) of U.S. Immigration and Customs Enforcement (“ICE”) will generally exercise its prosecutorial discretion by agreeing to join a motion to reopen, and moving to dismiss the removal proceedings of an individual who meets the following criteria:

a. Currently possesses Temporary Protected Status;
b. Has a removal, deportation, or exclusion order issued by the Executive Office for Immigration Review or its predecessor agency, the U.S. Immigration and Naturalization Service;
c. Has traveled on advance parole since that order was issued; and
d. Is otherwise prima facie eligible to file an application for adjustment of status with USCIS, including but not limited to those with a pending or approved I-130 “immediate relative” visa petition who meet the “inspected and admitted or paroled” requirement of Section 245(a) of the Immigration and Nationality Act, as amended (the “INA”) pursuant to USCIS policy if seeking to adjust under that provision.

US DISTRICT COURT FOR DC Case 1:20-cv-02363-RBW (March 21, 2022)

Any questions can be addressed to IBLF attorney Steffanie Lewis at [email protected] or by scheduling an consultation on our website: https://iblf.com/contact/. Further details will be posted as they become available.

In quick summary, the reauthorization contains the following provisions:

1. The EB-5 Regional Center program was reauthorized as amended on March 15, 2022 effective on various dates and will be in effect through September 30, 2027. USCIS will issue additional guidance shortly.
2. The investment amounts will increase to $800,000 for a targeted employment area (TEA) and infrastructure investments and $1,050,000 for a non-TEA investment, which will be effective immediately upon passage of the bill and which will also apply to “direct” non-Regional Center investments;
3. TEAs will be defined in three ways: (a) a rural area; (b) a distressed urban area project; and (c) infrastructure projects;
4. Only Department of Homeland Security can designate a TEA, which will be valid for 2 years;
5. An investor in a designated unemployment area shall not be required to increase the amount of investment due to the expiration of the designation. An infrastructure project is administered by a governmental entity for maintaining, improving, or constructing a public works project. Only DHS determines whether the investment is in an infrastructure project. Each year 20% of visa are reserved for rural area investments, 10%  for high unemployment area investments and 2% for infrastructure projects.
6. Job creation via an economic model will change, with new requirements for “direct” jobs;
7. Concurrent filing of Form I-485 with, or following the I-526 petition becomes available for those applicants that would have a visa number immediately available upon approval of the 1-526 Petition;
8. To satisfy the “at risk” requirement, redeployment of invested funds may occur anywhere in the United States, not just within the Regional Center area; and
9. There are a number of important Regional Center reforms affecting ongoing operations of Regional Centers and their owners, which would reform the site visit process as well as the annual compliance process on Form I -924A.

Updated 3/30/22 derived from AILA Doc. No. 22030904 1 Dated March 9, 2022