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The Supreme Court hears arguments in a case about U.S. citizens’ rights in visa denials.
U.S. Citizenship and Immigration Services reaches an H-2B cap for returning workers.
And why a small change to the USCIS policy manual could have important consequences for green card applicants.
Get this news and more in the new episode of BAL’s podcast, the BAL Immigration Report, available on Apple, Spotify and the BAL news site.
This alert has been provided by the BAL U.S. Practice Group.
Copyright © 2024 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries, please contact copyright@bal.com.
It’s April 25, and this is your BAL Immigration Report.
“USCIS policies that impact the green card process affect not only the applicant but also the employer as it relates to continued immigration support for their foreign national population.”
—Melissa Boggs, BAL Senior Associate
The U.S. Supreme Court heard arguments Tuesday in a case involving U.S. citizens’ rights in visa disputes involving their foreign spouses. The court is considering whether the government must provide due process when denying the visa application of a U.S. citizen’s foreign spouse — and, if so, if the applicable law provided it. The court heard a similar case in 2015, but the law on the question is still unsettled. A decision in the 2024 case is expected in June.
U.S. Citizenship and Immigration Services has reached the H-2B cap for returning workers with start dates from April 1 to May 14, 2024. Nineteen thousand visas were made available for that allotment under a temporary final rule published last fall. USCIS is now accepting petitions for 5,000 visas for returning H-2B workers with start dates from May 15 to Sept. 30, 2024. The agency is also still accepting petitions under a supplemental allotment for first-time and returning H-2B workers from Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Haiti and Honduras.
A conversation with BAL Senior Associate Melissa Boggs: how a recent procedural change could have a big impact for green card applicants.
BAL Immigration Report: We were joined this week by Melissa Boggs, a senior associate attorney in BAL’s Dallas office. Boggs has experience in both family-based and employment-based immigration law. At BAL, she has represented employers of all sizes and has a particular focus on helping foreign nationals in the U.S. apply for green cards. Boggs told us that the required medical reports can often slow down applications; however, she added that a recent change could prove important for employers and foreign nationals alike.
Boggs: Thanks for having me here today to talk to you about an important update in USCIS policy. On April 4, 2024, USCIS announced a policy change related to medical exams. Specifically, USCIS announced that medical exams completed and signed by an authorized civil surgeon on or after Nov. 1, 2023, do not expire and are valid indefinitely. This is very welcome news, as medical exams are frequently a reason that USCIS delays the processing of an adjustment of status, or AOS, application. At times, it is due to the medical exam having expired, requiring the applicant to complete another medical exam. Now that the medical exam is valid indefinitely based on when it was completed and signed by an authorized civil surgeon, it is highly encouraged that it is submitted with the AOS application at the time of filing.
BAL: Applicants do not need to submit medical exams at the time of filing and can wait until USCIS requests one. This most often occurs amid concern that the Visa Bulletin will retrogress, meaning that the applicant would not be able to file for adjustment of status the following month. Under these circumstances, Boggs says it is recommended that the AOS is filed and the medical exam completed later. Medical exams are required to show that green card applicants are not inadmissible under federal law.
Boggs: All individuals seeking to adjust their status to that of a lawful permanent resident or a green card holder of the U.S. are required to take a medical exam, including children. The medical exam ensures that the applicant is not inadmissible due to a health-related ground. The health-related ground of inadmissibility derived from public health concerns. In 1990, Congress revised and consolidated the health grounds to communicable diseases, physical or mental disorders with associated harmful behavior or those with drug abuse or addiction problems. The authorized civil surgeon will evaluate all the health grounds and will make a determination on the medical exam.
Validity of the medical exam has changed a few times in the last several years, from being valid for one year, to being valid for two years if filed with the AOS within 60 days from the date the civil surgeon signed, to then two years from the day the civil surgeon signed without the 60-day window requirement, to the most recent update today. The most recent policy is that USCIS will accept the properly completed medical exam signed by the civil surgeon on or after Nov. 1, 2023, indefinitely as evidence to meet the health-related ground of inadmissibility.
BAL: We asked Boggs for the reason for the recent change — and how she anticipated it would help.
Boggs: The reason for the changes indicated by the USCIS Policy Manual is that since Nov. 1, 2023, technological advances enabled civil surgeons to share certain medical data from the medical exam directly with the CDC electronically. Additionally, CDC and USCIS have collaborated to improve the reporting of public health information collected on the medical exam to U.S. health departments. Based on the developments and in consultation with the CDC, USCIS determined that a properly completed medical exam that is signed by a civil surgeon on or after Nov. 1, 2023, does not expire. Given the long wait times for the adjudication of the AOS application, this is great news. This will avoid a request for further evidence, often referred to as an RFE, for a medical exam that has expired.
BAL: Boggs noted that the current administration has made some other changes that have helped the green card process, including adding staffing to reduce wait times. Still, she says, there are often delays in receiving receipt notices. She added that current policies could change as they did in 2021, when a COVID-19 vaccination requirement was added. A change in administration could also affect the current policy. She stressed the importance of favorable green card policies to help employers address their workforce needs.
Boggs: USCIS policies that impact the green card process affect not only the applicant but also the employer as it relates to continued immigration and support for their foreign national population. The sooner the foreign national graduates from the immigration program, the better for the employee and employer alike, as uncertainty regarding their continued work authorization and ability to remain in the U.S. are eliminated.
BAL: BAL reported on the change to medical exam validity in a news alert earlier this month.
The European Commission has adopted new rules for Indian nationals applying for Schengen visas. Indian citizens are now eligible for long-term, multiple-entry Schengen visas. After obtaining and using two visas within a three-year period, Indian nationals can be issued a two-year Schengen visa, which can be followed by a five-year visa if the individual’s passport has sufficient validity remaining. The measure was taken as part of the EU-India Common Agenda on Migration and Mobility, which seeks to strengthen diplomatic relations.
The European Commission also announced this week that nationals of Bahrain, Oman and Saudi Arabia will be eligible for five-year, multiple-entry Schengen visas, according to media reports.
The Turkish government has introduced a digital nomad visa for remote workers who meet certain criteria. Applicants must be ages 21 to 55, have at least six months of validity on their passport, show proof of a university degree, document their remote working situation with a company outside of Turkey, and earn at least US$3,000 monthly or US$36,000 yearly. Nationals of the U.S., Canada, the U.K. and most EU countries are eligible.
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