USCIS Rescinds Deference Policy for Nonimmigrant Extension Petitions

USCIS Rescinds Deference Policy for Nonimmigrant Extension Petitions

On October 23, 2017 USCIS issued a Policy Memorandum rescinding prior guidance that instructed adjudicators to show deference to previously approved petitions in the context of extension. Under the new policy, USCIS adjudicators are no longer required to show deference to prior nonimmigrant approvals, even where the petition involves the same parties and same underlying facts.  According to the Memorandum, adjudicators “may” reach the same decision but “are not compelled to do so as a default starting point.”

The new Policy Memorandum will impact extension of nonimmigrant status petitions where the petitioner, beneficiary, and underlying facts are the same. Extension petitions will now require the same documentation and must meet the same evidentiary standards as initial petitions.

Therefore, we now recommend that extension petitions be filed as soon as possible, generally 180 days before the current petition expires. We further suggest beginning the extension process 7-8 months prior to the expiration date to ensure the new petition may be filed at the earliest opportunity.

U.S. District Court in Hawaii Blocks Implementation of Travel Ban for 6 out of 8 Countries

U.S. District Court in Hawaii Blocks Implementation of Travel Ban for 6 out of 8 Countries

On Tuesday, October 17, 2017, Hawaii District Court Judge Derrick Watson issued a Temporary Restraining Order halting the implementation of President Trump’s most recent travel ban across the country. According to the decision, the U.S. government is prohibited from enforcing and implementing the ban on nationals from Chad, Iran, Libya, Somalia, Syria, and Yemen. The travel ban will still be effective for nationals of North Korea and certain government officials and their immediate family from Venezuela.

Judge Watson stated that the current travel ban “suffers from precisely the same maladies as its predecessor” and that it “plainly discriminates based on nationality.” Further litigation is expected as the decision may be appealed and the District Court will need to determine whether to extend the Temporary Restraining Order.

Maryland District Court Judge Theodore Chuang issued a similar order on Wednesday morning. Judge Chuang’s decision prohibits the U.S. government from applying the travel ban to individuals with bona fide ties to a person or business in the United States. Similarly, the Maryland decision will not apply to North Korean or certain Venezuelan nationals. A third challenge to the most recent travel ban is also pending in the state of Washington.

DHS Issues Notice of Proposed Changes to Alien File, Index, and National File Tracking System of Records

DHS Issues Notice of Proposed Changes to Alien File,

Index, and National File Tracking System of Records

On September 18, 2017, the Department of Homeland Security (DHS) published notice of proposed changes to the “DHS/USCIS-ICE-CBP-001 Alien File, Index, and National File Tracking System of Records.” The DHS System of Records contains information on all individuals who pass through the immigration process in the United States.

The System of Records sets forth that immigrants’ information may be contained in multiple formats and databases, such as Alien files “A-files,” in order to administer benefits and enforce provisions under the Immigration and Nationality Act (INA) and related statutes. The DHS Notice is proposing to change what information may be collected and retained in these files.

One of biggest changes is the addition of social media handles and aliases, associated identifiable information, and search results to the list of records retained in an individual’s A-file. Publicly available information obtained from the internet, public records, public institutions, interviewees, commercial data aggregators, inquiries or complaints from the general public, and other sources have also been added as sources for information contained in DHS records.

Information may be collected from a wide-range of individuals, including lawful permanent residents; naturalized U.S. citizens; individuals when petitioning for benefits under the INA on behalf of another individual; individuals who receive benefits under the INA; individuals who are subject to the enforcement provisions of the INA; and others.

It is still unclear how DHS will collect this information, specifically whether officials will be collecting and retaining social media information for U.S. citizens who naturalized 20 years or more ago or whether only information collected moving forward will be retained. The language in the notice is both broad and vague, giving DHS wide latitude in implementing this policy. Advocacy groups have raised concerns that the new policy may have a chilling effect on free speech.

The Notice is subject to a 30-day public comment period. Members of the public may submit comments until October 18, 2017, by clicking on the green “Submit a Formal Comment” button at the following website.

While the notice provides the effective date as October 18, 2017, it is unclear if DHS will wait until this date to begin collecting social media information. DHS issued a statement to Buzzfeed News stating that “DHS published this notice in the Federal Register on Sept. 18 to comply with the administrative requirements of the Privacy Act to help address these requirements, not launch a new policy initiative. DHS, in its law-enforcement and immigration process capacity, has and continues to monitor publicly-available social media to protect the homeland.”   

 

USCIS Ombudsman Teleconference on new AOS interview requirements

USCIS Ombudsman Teleconference on new AOS interview requirements

On September 28, 2017, the USCIS Ombudsman’s Office held a teleconference to advise stakeholders on the new requirement for I-140 based Adjustment of Status applicants to appear for interviews. The following is a summary of the information that was provided during that call. 

  • All I-140 based Adjustment of Status (AOS) cases that were filed on or after March 6, 2017, will be scheduled for in-person interviews at a local USCIS office. Cases filed before March 6, 2017, will not be subject to interviews.
  • The nationwide rollout of the interview requirement is October 1, 2017.
  • Training for USCIS field officers was completed on September 28, 2017. Checklists and standard operating procedures are in place to assist officers in their directive, which is combating fraud.
  • After the service center has approved an I-140 and completed review of any corresponding I-485 applications, it will forward the I-485 application(s) to the National Benefits Center. The applicant will receive a transfer notice after this is completed. The National Benefits Center (NBC) will schedule interviews and generate the interview notices, which will be sent to the applicants.
  • USCIS will notify applicants at least 30 days in advance of their scheduled interview appointment. Every applicant will receive his or her own interview notice, and USCIS will make an effort to interview families together who filed their applications at the same time. The field office may waive interviews for dependents under 14 years of age. The NBC will forward the cases to the appropriate field office with jurisdiction over the case.
  • Interview notices include a generic document checklist, but USCIS encourages applicants to submit ALL evidence with their initial applications.
  • Applicants should respond to any Requests for Evidence (RFEs) prior to the interview in order to avoid delays in adjudication.
  • USCIS officers have been instructed not to re-adjudicate the I-140 petition. Officers will assess the validity of the supporting documents used in the initial I-140 filing, and confirm that the job offer still exists.
    • This also applies to EB-1A self-petition cases.
  • If applicant has “ported” to a new job and the adjudicating officer has questions about 204(j) and whether the new position qualifies as a “same or similar occupation” the officer may consult with the service center.
  • Applicants should expect to articulate the details and requirements of the offered position in the underlying I-140 petition, and be able to confirm how their education and experience meets those requirements.
  • Applicants should be prepared to answer all questions found on Form I-485 and to confirm the information contained in that application.
  • Dependent family members should expect to show evidence of a bona fide relationship to the Principal Applicant.
  • At the conclusion of the interview, the interviewing officer may request additional evidence, approve the application, recommend revocation, or deny an application.
  • In the case of a denial or revocation:
    • If the issues revolve around inadmissibility of an applicant, on the I-485 application will be denied.
    • If issues of credibility relate instead to the underlying I-140, both the I-140 and I-485(s) will be returned to the service center for further review, possible notice of intent to revoke, and ultimately denial of the I-140 and attached I-485(s).
  • USCIS anticipates that the employment-based adjustment interviews will comprise 17% of overall workload at Field Offices.
    • The agency expects a slight delay in processing times for family-based applications and Naturalization cases due to being understaffed.
  • Field Office processing times should be updated soon to include processing times for I-140 based cases. The Field Offices will strive to adjudicate cases as quickly as possible, based on visa availability in each preference category.

Our office is committed to preparing complete applications, and will work with applicants and their dependent family members to prepare them in advance of their scheduled interview. Please do not hesitate to contact our office if you have any questions about this or any other immigration matter.

President Trump Enacts New Travel Ban, Extends to Chad, North Korea, and Venezuela

President Trump Enacts New Travel Ban, Extends to Chad, North Korea, and Venezuela

President Trump signed a proclamation on September 24, 2017, expanding travel restrictions to three new countries: Chad, North Korea, and Venezuela. Some travel restrictions and/or enhanced screening remain in place for citizens of Iran, Iraq, Libya, Somalia, Syria, and Yemen. Travel restrictions for nationals of Sudan have been lifted. Under the proclamation, restrictions vary from country to country. The new travel ban suspends entry to the U.S. by the following nationals:

Chad:  Immigrants and temporary visitors on business or tourist visas (B-1/B-2)

North Korea:  All immigrants and nonimmigrants

Venezuela:   Certain government officials and their immediate family members on business or        tourist visas (B-1/B-2); Other visa holders will be subject to additional security measures

Iran:    Immigrants and nonimmigrants

EXCEPT: F (student), M (vocational student), and J (exchange visitor) visas are permitted but will be subject to enhanced screening and vetting requirements

Libya:  Immigrants and temporary visitors on business or tourist visas (B-1/B-2)

Somalia:  Immigrants;  Requires enhanced screening and vetting of all nonimmigrants

Syria:  All immigrants and nonimmigrants

Yemen:  Immigrants and temporary visitors on business or tourist visas (B-1/B-2)

Iraq:  Requires enhanced screening of all foreign nationals seeking to enter the United States

The new travel ban will be effective immediately for nationals of Iran, Libya, Somalia, Syria, and Yemen who do not have a bona fide relationship with a person or entity in the United States. For all other foreign nationals subject to restrictions, the travel ban will be effective starting October 18, 2017.

Nationals of the designated countries will be subject to the restrictions if they are outside of the U.S. on the applicable effective date, do not have a valid visa on the applicable effective date, and do not qualify for a reinstated visa or travel document that was revoked under the first travel ban (Executive Order 13769).

The travel ban will not apply to: lawful permanent residents; individuals admitted to or paroled into the U.S. on or after the effective date of the new travel ban; those with a document other than a visa that allows them to travel to the U.S. if the document is dated on/after the effective date of the new travel ban (i.e. advance parole travel document); dual-nationals traveling on a passport from a non-designated country; individuals traveling on diplomatic visas (NATO, C-2, G-1, G-2, G-3, or G-4 visas); individuals granted asylum; refugees already admitted to the United States; or individuals granted withholding of removal, advance parole, or protection under the Convention Against Torture.

A case-by-case waiver is available if a national from a designated country demonstrates: 1) that being denied entry would cause undue hardship to the individual, 2) that their entry would not pose a threat to U.S. national security or public safety, and 3) that their entry will be in the national interest. Finally, there is no automatic expiration for the new travel ban and the restrictions will be in place until the Secretary of Homeland Security recommends termination or modification.

ADHS Set to Open its FY-2018 J-1 Waiver Program

ADHS Set to Open its FY-2018 J-1 Waiver Program

The Arizona Department of Health Services (ADHS) announced that it will begin accepting applications for the 2018 Conrad 30 J-1 waiver program on October 2, 2017.  Conrad 30 J-1 waivers are for clinical physicians, as opposed to teaching or research positions.  To be considered for the 2018 program, an application must be postmarked by November 30, 2017.  Please contact our office if you wish to submit a J-1 waiver application to ADHS.

Please feel free to contact our office if you have questions regarding J-1 waiver applications or any other immigration matter.

USCIS will resume Premium Processing for H-1B visa petitions subject to the 2018 Fiscal Year cap

USCIS will resume Premium Processing for H-1B visa petitions

subject to the 2018 Fiscal Year cap

USCIS announced today that Premium Processing will resume for H-1B visa petitions subject to the Fiscal Year 2018 cap.  This includes the cap limit of 65,000 H-1B visas as well as 20,000 additional visas for workers with a U.S. master’s degree or higher. Premium Processing will only be available for pending petitions and not for any new petitions. USCIS’s Premium Processing service guarantees a response from the government on a petition within 15 days and requires an additional $1225 filing fee.

Premium Processing has already resumed for H-1B petitions filed on behalf of physicians participating in the Conrad-30 waiver program, interested government agency waivers, and for certain H-1B petitions not subject to the cap.

For all other H-1B petitions, Premium Processing remains temporarily suspended. According to USCIS, they plan to resume Premium Processing for other H-1B petitions as agency workloads permit.

If you are interested in “upgrading” a currently pending H-1B petition to Premium Processing, please contact our office.

DIVERSITY VISA LOTTERY REGISTRATION WILL OPEN ON OCTOBER 3, 2017

DIVERSITY VISA LOTTERY REGISTRATION WILL OPEN ON OCTOBER 3, 2017

Each year the U.S. Department of State conducts a “lottery” of qualified applicants from under-represented countries, selecting 50,000 individuals who may then immigrate to the U.S. and receive their “green cards.” The applicants must register online and meet the following basic requirements:

 ·       Must have been born in an eligible country (see page 16 of the registration instructions).

  o   Or, be married to a person born in one of those countries

  o   Or, in special cases, be the child of parents born in an eligible country

·       And, must meet the either educational or work experience requirement:

  o   Have at least a high school education, OR

  o   Have two years of work experience within the past five years in an occupation that requires at least two years of training or experience to perform.

Qualified entrants may submit just one application. Entries for the Fiscal Year 2019 lottery should be submitted electronically at https://www.dvlottery.state.gov/ between noon, Eastern Daylight Time (EDT) (GMT-4), Tuesday, October 3, 2017, and noon, Eastern Standard Time (EST) (GMT-5), Tuesday, November 7, 2017. The website may experience problems during high-traffic times (such as the last days of the filing window), so we recommend completing the application as soon as possible. It is important to fill out the requested information completely and truthfully and to carefully follow the guidelines for submitting photos. There is no cost to submit an entry form and we caution our clients to only use the state.gov website, and be wary of any “copycat” websites that charge a fee to submit the application.

 Once an entry is submitted, the applicant will receive a confirmation page and confirmation number. The confirmation page should be printed, and the number should be carefully recorded. Again, we recommend caution against scams that offer to provide a confirmation number for a fee. The U.S. Department of State will randomly select individuals entries by computer, from among the qualified entrants. Individuals may then go to the Entrant Status Check section of https://www.dvlottery.state.gov/ to find out if they have been selected, using their confirmation number, starting on May 1, 2018, through September 30, 2019.  If selected, individuals and their qualifying dependent family members will receive instructions through the website on how to apply for their green cards through either adjustment of status, or through consular processing.

 We encourage all qualified individuals to enter the Fiscal Year 2019 Diversity Visa Lottery and we wish them luck!

USCIS Expanding In-Person Interview Requirement to Employment-Based Adjustment Applicants

USCIS Expanding In-Person Interview Requirement

to Employment-Based Adjustment Applicants

U.S. Citizenship and Immigration Services (USCIS) announced recently that they will begin expanding the in-person interview requirement to certain applicants seeking permanent resident status. Specifically, USCIS will now require in-person interviews for the beneficiaries of (1) adjustment of status applications based on employment and (2) refugee or asylee relative petitions for beneficiaries who are in the U.S. petitioning to join a principal refugee or asylee applicant.

Previously, USCIS waived most interviews for beneficiaries in these categories. According to USCIS, the in-person interview will allow officers to verify information provided in the application, discover new and relevant information, and determine the applicant’s credibility.

The new in-person interview policy will be phased-in beginning October 1, 2017. A statement released by USCIS said that “beyond these categories, USCIS is planning an incremental expansion of interviews to other benefit types.” However, at this time, no further information has been provided on the potential expansion to categories other than those listed above.

Voice Your Organization’s Support for the H-1B Program

Voice Your Organization’s Support for the H-1B Program

Recent pronouncements by the federal government and negative media stories have questioned the benefits of employment-based immigration and in particular the H-1B program.  As you likely know, U.S. businesses use H-1B visas to gain access to sought-after skills of foreign professionals, many of whom graduate from U.S. universities, to complement the U.S. workforce.  These foreign professional workers greatly benefit U.S. businesses, U.S. workers, and the economy.  With Congress preparing to resume session, it is important that your Senators and Representatives understand the value and importance of the H-1B visa program.

 Please show your support for the H-1B program by sending a letter to your Congressional members explaining how your organization has benefitted from the program.  Below is a sample employer support letter that your company can use and adapt as appropriate to suit your needs. (You can use this link to look up your members of Congress.) Your support will help show Congress that the H-1B visa is critical to the continuing success of thousands of U.S. businesses.

SAMPLE EMPLOYER LETTER TO CONGRESS RE: H-1Bs

[date]

The Honorable __________ United States Congress Washington, DC ______

Dear [Senator/Representative] ________:

On behalf of [COMPANY NAME], headquartered in [CITY, STATE], I am writing to express our concern regarding recent pronouncements by the federal government and negative media stories questioning  the benefits of employment-based immigration to the United States, and in particular, the H-1B program. [INSERT DESCRIPTION OF COMPANY]. Our company has utilized the H-1B to hire talent from across the globe. The H-1B visa has allowed us to remain globally competitive, helps keep jobs in the United States, and is an essential component of a thriving U.S. economy.

The United States was built by immigrants and flourished because of our storied history of welcoming entrepreneurs and innovators to our shores. Our country benefits when companies are given the flexibility they need to fill open positions with the best talent available, from within the United States and around the world. The H-1B gives U.S. companies like ours an opportunity to compete in the global talent race and hire professionals who are best able to advance our mission and the U.S. economy.

Our company, and by extension, the U.S. economy, has benefitted from the H-1B as follows: [ADD IN EXAMPLES OF HOW THE COMPANY HAS SUCCESSFULLY USED THE H-1B PROGRAM].

As a U.S. company that has benefitted from the H-1B program, we are troubled by reports of U.S. workers losing their jobs, and certainly, no one should be forced to train their replacement or forego compensation or other benefits associated with a separation agreement. Our company abides by the rules, utilizes the H-1B program in the manner and spirit in which it was intended, and we welcome additional efforts by the administration to eliminate fraud in our immigration system. But to blame these unfortunate occurrences solely on the use of visas is incorrect and fails to account for a variety of factors that businesses must consider when making hiring and restructuring decisions. Quite simply, without adequate and appropriate visas, the ability of our company to flourish and reach its potential is limited. We lose out and America loses out.

We urge you and your colleagues in Congress to recognize the benefits that visa workers bring to the United States, and to preserve this program which is vital to the continuing success of thousands of U.S. businesses. If you need any additional information or would like to meet regarding this matter, please do not hesitate to contact me at [phone or email contact].