Immigration News That You Can Use-October "Surprise" in the Opposite Direction as DOS Fails to Partner With USCIS; Proof of COVID Vaccination Beginning October 1 Appears Only Prospective; $3.5 Trillion Reconciliation Package Has Hope for Many Undocumented Immigrants; Market Research Analyst H-1B Proposed Nationwide Class-Action Suit Settlement; Reporting to ICE ERO to Become Simpler.

by Alan Lee, Esq.

  1. October “surprise” in the opposite direction as DOS does not do its part while USCIS does its.
Contrary to our speculation in the sub-article, “Visa Chart Largely Humdrum for September except for Indians – Will There Be an October Surprise?The Immigration Daily, August 24, 2021 (that the Department of State and USCIS would use the opportunity of an overabundance of employment based visa numbers to both advance the employment based (EB) dates for China and India (DOS) and to use the dates of filing chart (USCIS) to allow the filing of many cases), that scenario will not unfold in October as USCIS did its part in allowing the dates for filing chart instead of final action dates chart to be used for October, but DOS severely crimped the visa flow by delivering static charts for both family-based (FB) final action dates and filing dates charts, very little change in EB final action dates chart, and a retreat for the EB filing dates chart except for the Indian second and backwards movement on the China and India third preference categories. The China EB-3 category backed up 5 ½ months from 7/1/19 to 1/15/19, India EB-2 advanced 7 months from 12/1/11 to 7/8/12; and India’s EB-3/EB-3W moved backwards almost 2 months from 3/1/14 to 1/8/14. So in this case, USCIS was left without a dance partner as its allowing the use of the dates of filing chart for EB cases was largely ineffective in allowing more people to file for adjustment of status under both China and India EB categories. The China EB-3 date only allows persons to file who have priority dates seven days later than the date on the October final action dates chart (1/15/19 versus 1/8/19) and the forward movement of the India EB-2 to July 2012 benefits very few as most Indian EB-2 petitions were downgraded to EB-3 in October 2020 when Indian dates of filing for that category were advanced to 1/1/15. Hopefully, USCIS will have a partner in the upcoming months and continues to extend its acceptance of the dates of filing chart past October. It should be noted that USCIS maintained acceptance last year for dates of filing from October-December 2020. 2. Immigration medical exams to require proof of Covid vaccination.

The CDC announced in late August that Covid-19 vaccination would be required for immigration beginning on October 1, 2021 – that person seeking to immigrate would have to show proof of full vaccination with a vaccine authorized for use or listed for emergency use by the WHO. Self-reports of vaccination would not be accepted without written documentation. If a person is not vaccinated and the panel physician overseas or US civil surgeon has available Covid-19 vaccine, the doctor is permitted to vaccinate the applicant. However, an applicant must receive the full Covid-19 vaccine series before the medical examination can be completed, so case processing may be delayed if the applicant attends an exam unvaccinated. A blanket waiver can be given to those younger than the lowest age limit and for those who can document a medical contraindication. Also in certain circumstances, if the Covid-19 vaccine is not routinely available in the jurisdiction of the doctor. Applicants must receive the vaccination regardless of evidence of immunity or prior Covid-19 infection. The question is what happens to those who have already taken medical examinations before October 1. Will they be required to supplement their examinations, take another, or show proof of vaccination either before or at interview with USCIS or an American consular post? USCIS appears to have answered the question in its release on 9/14/21 that the vaccination requirement will be confined to medical examinations on or after October 1, 2021. In “Covid-19 Vaccination Required for Immigration Medical Examinations,” USCIS emphasized that, “This requirement is effective October 1, 2021, and applies prospectively to all Forms I-693 signed by the civil surgeons on or after that date.” Pending further instructions to the contrary, it would appear that medical examinations taken before 10/1/21 in pending cases will be valid for all purposes.

  1. $3.5 trillion reconciliation package has hope for many undocumented immigrants.

It appears that real hope is here for the legalization of many undocumented immigrants in the country, but judgment day may come as early as this week or next. The $3.5 trillion budget reconciliation bill contains immigration provisions that would allow legalization for the Dreamers who came to the country as children (DACA), farmworkers, TPS recipients, and “essential” workers. The House passed the framework of the bill on August 24 which the Senate previously approved on August 11 on a 50-49 vote. Estimates are that between 6-11 million people could be granted a path to citizenship in the bill, depending on how the legislation is written. Under budget reconciliation, there is no filibuster, and as long as the Democrats hold all 50 senators plus the vice president, the legislation will pass. The one big caveat other than Democratic unity is that the immigration part has to have the approval of the Senate parliamentarian Elizabeth McDonough, who will rule on whether the provisions either raise revenue or add to the deficit, and that the immigration provisions’ impact are not merely “incidental”. She could reject the immigration provisions if she finds that they do not have a real impact on the country’s overall budget. Both parties presented their arguments to Ms. McDonough on September 10 with the Democrats saying that giving legal status to an estimated 8 million would cost the government $139.6 billion over 10 years while Republicans argued that the impact would be incidental to the budget. Part of the reason for the uncertainty over the number of eligible people will undoubtedly hang on the question of who is an “essential worker” as everybody has their own idea on what that is. It obviously means more than a “frontline” essential worker, but who will set the standard? Congress, each state, DHS? Is it the janitor in the hospital, cashier at the bodega, restaurant waiter, restaurant owner, actor or actress, trash collector, news reporter, gas station attendant, car factory worker, Amazon line worker, other factory worker, gardener, lawn worker, home maintenance man, dockworker, bank clerk? We will have to wait to see how it all shortly plays out.

  1. Market research analyst H-1B proposed nationwide class-action suit settlement.

There is a proposed settlement in a nationwide class-action suit, Madkudu v. USCIS, No. 5:20-cv-2653-SVK (USDC N. Dist. CA. 2021) providing a remedy for class members – all US employers who filed market research analyst H-1B petitions on or after January 1, 2019, until the date that the court approves the settlement, which were denied on grounds that the Occupational Outlook Handbook (OOH) does not establish that market research analyst is a specialty occupation and that but for USCIS’s finding regarding the OOH entry for market research analyst, the H-1B petitions would have been approved. Class members have until October 4, 2021, to file objections to the proposed settlement agreement, and the court scheduled the fairness hearing for October 19, 2021. Cases that qualify under Madkudu for reopening 180 days after the judge’s decision with no fee to be charged are:

  • Bachelor’s or higher degree in business administration with official minor, major, concentration, or specialization in market research, marketing, or research methods, as annotated on a transcript, diploma, or other official document from the registrar. If no documentation from the registrar is available, the petitioner can submit for consideration a letter from the chair of the relevant department, a professor in the relevant department, or an official academic advisor from the institution of higher education that issued the degree confirming the above. Also an unofficial transcript may be considered.
  • Bachelor’s or higher degree in communications, statistics, computer and information technology, and/or social science may qualify if the petitioner is able to demonstrate an unofficial minor, major, concentration, or specialization in market research, marketing, or research methods is necessary to perform the job duties.
  • To demonstrate class membership, a petitioner will submit with the reopening request a copy of USCIS’s denial of the original H-1B petition and those who appealed and had their appeals dismissed by the AAO will submit a copy of the AAO decision instead of the service center denial.
  • USCIS is to provide within 10 business days of the court’s order an announcement with directions for class members to send a motion to reopen on form I-290B, with a cover sheet to clearly identify the motion is filed by a claimed member of the class, to a designated USCIS service center(s) for the receipt and adjudication of class members’ reopening requests. The 180 days commences on the date that USCIS announces directions for class members to send a motion to reopen.

The proposed settlement is another rebuke to USCIS’ reliance on the OOH to decide what is a specialty occupation for purposes of H-1B petitions, and serves as more than an indication that specialty occupation is not to be defined by one specialized field of study.

  1. Reporting to ICE ERO to become simpler.

ICE is instituting a new online scheduling tool for persons having final orders to schedule their own check-in appointments with ICE ERO (Enforcement and Removal Operations). This device is called the ICE Appointment Scheduler and is available at https://www.ice.gov/check-in. Previously, appointments had to be made via phone or in person. People can create the appointment online using information found on their I-385 alien booking record form. So there is the good possibility in many cases that after they schedule their check-in appointments through this new tool, they may go in and only be met by the kiosk. Kiosk reporting in New York was mentioned in the AILA New York Chapter – ICE/ERO meeting agenda on 5/13/21 of which there were a few interesting points:

  • The Ninth floor for reporting for persons with orders of supervision now has three kiosk machines, and so many people will just be reporting to ICE/ERO through the machines.
  • Kiosk cases are regularly reviewed for compliance and cases are removed from kiosk cart reporting if the noncitizen is noncompliant with the program requirements or there is a change in case status warranting in-person reporting.
  • To the AILA observation that many with orders of supervision have not had in-person reporting over the last year plus, have transferred jurisdictions or have otherwise not reported or been able to report, ICE/ERO says that in general noncitizens have always had reporting requirements and it would need to know the specifics of why they have not been complying in order to ascertain the next steps; that although many have not had in-person reporting, many were telephonically interviewed due to COVID-19 restrictions.

In the age of Covid, contactless reporting in most cases benefits the undocumented immigrant along with DHS staff members.


About The Author

Alan Lee, Esq. is an exclusive practitioner of immigration law based in New York City with an AV preeminent rating in the Martindale-Hubbell Law Directory for 20+ years, registered in the Bar Register of Preeminent Lawyers, on the New York Super Lawyers list (2011-12, 2013-14, 2014-2015, 2015-2021), and recognized as a New York Area Top Rated Lawyer. He has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Epoch Times, Pakistan Calling, Muhasba and OCS; testified as an expert on immigration in civil court proceedings; and is a regular contributor to Martindale-Hubbell's Ask-a-Lawyer program. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004; his 2004 case in the Second Circuit Court of Appeals, Firstland International v. INS, successfully challenged Legacy INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof, although its central holding that the government had to notify approved immigrant petition holders of the revocation prior to the their departure to the U. S. for the petition to be able to be revoked was short-lived as it was specifically targeted in the Intelligence Reform Act of 2004 (which in response changed the language of the revocation statute itself). Yet Firstland lives on as precedent that the government must comply with nondiscretionary duties established in law, and such failure is reviewable in federal courts. His 2015 case, Matter of Leacheng International, Inc., with the Administrative Appeals Office of USCIS (AAO) set nation-wide standards on the definition of "doing business" for multinational executives and managers to gain immigration benefits.


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.