USCIS has indicated in a Memorandum, dated July 13, 2018, that officers now have the discretion to deny applications without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) when they find that the required initial evidence was not submitted or the evidence of record fails to establish eligibility.
Under current practice, unless an application is clearly frivolous or lacking any legal basis, the Service would typically issue an RFE spelling out, often in great detail, the perceived deficiencies and giving the applicant/petitioner an opportunity gather and submit additional evidence and/or legal arguments in support of their case. This new approach will require applicants and petitioners to take extra care in preparing a properly documented matter for filing.
Importantly, this Memo will only affect matters filed after September 11, 2018.
In light of these Memos, there is no longer any doubt that this Administration is doing everything it can to implement its anti-immigration philosophy.
We intend to do the best we can to see that our clients have the best advice possible under difficult circumstances.
USCIS has announced an important and disturbing change in how the agency will deal with denied applications for immigration benefits such as requests for extension of stay and change of nonimmigrant status. Under the new policy set forth in a Memorandum issued June 28, 2018, when the subject of a denied application has no valid underlying immigration status, USCIS is instructed to issue a Notice to Appear (NTA) in Immigration Court to face removal proceedings.
For example, an applicant already in H-1B status working on the basis of a timely filed and now pending application for extension of stay would not have a valid underlying status if the petition extension is denied. The same would be true for an applicant for Adjustment of Status whose prior nonimmigrant status expired after the I-485 was filed.
This change does not affect applicants who have a valid underlying status. For example, an applicant who is maintaining valid F-1 OPT status and has time remaining and who is seeking a change to H-1B status would not be affected by the new policy.
Previously, if an immigration benefit was denied and an applicant was then unlawfully present in the U.S., the applicant would need to depart the U.S. immediately but NTAs were not routinely issued nor were any bars usually imposed if they departed before the accrual of 180 days of unlawful presence.
Once an NTA is issued, the matter becomes a removal case in Immigration Court.
Even if the applicant departs from the U.S. immediately, he/she will eventually be called to appear before an Immigration Judge. If the applicant fails to appear, having already left the U.S., he/she may be ordered removed in absentia. Once issued, this will trigger bars for reentry that may or may not be waivable.
USCIS offices were given until July 28 to come up with plans to implement this new policy. Perhaps the government will recognize that this approach unduly burdens the already backlogged Immigration Courts, in addition to causing unnecessary hardship to petitioners and applicants and will moderate or scale back this plan. But so far, we have no reason to think this is likely.
Since 2004, USCIS policy required adjudicators to defer to prior determinations when reviewing nonimmigrant H or L Visa Petition extensions. Where the parties involved and the basic facts remained the same, there was a built-in bias toward approval. The October 23, 2017 Memorandum rescinds that policy.
Now adjudicators must “thoroughly review the petition and supporting evidence to determine eligibility for the benefit sought.” This will require Petitioners to more thoroughly document petition extensions, even though the regulations at Title 8 C.F.R. specifically state that in some cases, initial evidence need not be submitted with these extension requests.
USCIS cites the undue burden placed on the Service by the prior policy. The Memorandum notes that adjudicators would have to request a separate file-possibly at another location-in order to determine if the original petition was properly approved, there has been a material change in circumstances, or there is new material information which adversely affects eligibility.
Moving forward, extra care must be taken when preparing an H-1 or L-1 petition extension in order to avoid the dreaded Request for Evidence.
This is just the latest step taken by the administration to negatively impact the lawful employment of foreign nationals-all in the name of protecting U.S. workers.
Please contact our office if you have any questions.
U.S. Citizenship and Immigration Services (USCIS) has announced that it will begin expanding in-person interviews for certain applicants for lawful permanent resident (green card) status. According to USCIS, this is “part of the agency’s comprehensive strategy to further improve the detection and prevention of fraud and further enhance the integrity of the immigration system.”
Effective Oct. 1, USCIS will begin to phase-in interviews for the following:
- Adjustment of status applications based on employment (Form I-485, Application to Register Permanent Residence or Adjust Status). Previously, applicants in these categories rarely required an in-person interview with USCIS in order for their application for permanent residency to be adjudicated.
- Refugee/asylee relative petitions (Form I-730, Refugee/Asylee Relative Petition) for beneficiaries who are in the United States and are petitioning to join a principal asylee/refugee applicant.
Beyond these categories, USCIS is planning an incremental expansion of interviews to other benefit types.
Our office will be in touch to discuss how to prepare for the interviews as soon as we receive any interview appointment notices. Please contact us should you have any questions or concerns.
Due to the recent reductions in U.S. Consular staff imposed by the Russian government, nonimmigrant visa processing in Russia will be sharply curtailed. Specifically:
All NIV operations in Russia are suspended effective tomorrow, August 23. Previously scheduled appointments are being canceled and applicants are being notified individually.
Beginning September 1, ALL NIV processing will resume in Moscow only. NO NIV applications will be processed in St. Petersburg, Yekaterinburg, or Vladivostok until further notice.
Scheduling of immigrant visa interviews may also be affected.
Please refer to the Department of State website (https://ru.usembassy.gov/fact-sheet/) for additional information.
We encourage all our clients to contact us in advance of any international travel if they have questions about current documentary requirements for reentry to the U.S.
The Department of State has released the Visa Bulletin for the month of August.
Unfortunately, a backlog has developed and a cutoff date of April 1, 2015 has been established for the employment-based E-2 worldwide category in the “final action date” chart.* USCIS has announced that it will use this chart to determine whether an Adjustment of Status application can be filed.
Therefore, only applicants who have a “Priority Date” prior to April 1, 2015 will be able to file an Adjustment of Status application after July 31.
The Department predicts that the cutoff date for worldwide will again become current on October 1, 2017, the beginning of the new fiscal year. Historically, this has been the case when numbers have become backlogged during the months of August and September.
*the cutoff date for India is July 22, 2008 and the cutoff date for China is April 22, 2013.
June 26, 2017. The U.S. Supreme Court today issued a decision partially reinstating the travel ban set forth in President Trump’s Executive Order 13780 issued on March 6, 2017, while indicating that it will consider the case on its merits in the Fall term. Implementation of the ban was previously enjoined by decisions of the U.S. Courts of Appeal in the 4th and 9th Circuits.
Nationals of six Muslim majority countries are affected by the decision: Iran, Libya, Somalia, Sudan, Syria, and Yemen. The ban sought to bar all nationals of these countries from entering the U.S. for a 90 day period, while the government reviewed the security issues involved in screening visa applicants.
In today’s decision, the Court allowed the ban to take effect except for those individuals who have a close familial relationship with a U.S. person, or a documented relationship with a U.S. entity. Examples provided by the Court include a person seeking to visit or live with a family member, a student admitted to a U.S. university, or a worker offered a job in the U.S.
Three Justices dissented and would have allowed the ban to apply to all foreign nationals from the designated countries. They were motivated in part by their concern that creation of these “exceptions” would lead to extensive litigation by prospective travelers and their U.S. contacts seeking to push the boundaries of the decision.
USCIS has recently announced that it has completed the random selection process for cap-subject H-1B Petitions filed during the first five days of April. The Service will begin returning cases that were not selected to Petitioners in the coming days along with all filing fees tendered. H-1B visas are still available in the following situations:
Extensions of H-1B status for foreign nationals currently employed in H-1B status by the petitioner
New employees who currently maintain H-1B status with another employer, OR who have previously been in H-1B status in the past six years and have not subsequently been absent from the U.S. for more than one year [note: if the prior H-1B employer was an exempt employer as described below, the new petition does require a number under the cap and can only be filed when H-1B visa numbers are available].
H-1B1 Petitions filed on behalf of citizens of Chile and Singapore (based on treaty obligations).
New Petitions filed by “Cap-Exempt” Petitioners: the following organizations are exempt from the “cap” and may obtain H-1B status for new employees at any time:
institutions of higher education
a nonprofit organization related to or affiliated with an institution of higher education
a nonprofit research organization or governmental research organization
(These exempt classes are often referred to informally as “educational H-1B” cases, though this label is somewhat misleading.)
Note carefully: this does not exempt all nonprofit organizations; only those affiliated with an institution of higher education
Many of our clients are concerned about the President’s most recent Executive Order as it pertains to the immigration system, specifically the H-1B Temporary Worker category.
The Executive Order directs the heads of the agencies involved (DHS, USCIS, and DOL) to develop proposals in the coming months to modify the program to ensure that the most highly skilled and highly paid applicants have access to the H-1B visa. This will involve updating regulations, memos and other guidance to comport with the objectives of the Order. This will take time.
In the short term, nothing has changed as a result of this Order.
Also, USCIS announced on April 7, 2017 that it has received enough H-1B petitions to reach the statutory cap of 85,000 visas for fiscal year (FY) 2018 for both the regular cap and the master’s cap. As such, cap-subject employers may only file H-1B transfer applications or extension requests for applicants who have already been counted in a prior year’s cap.
Academic institutions and related non-profit organizations not subject to the cap can also continue to file until new regulations are adopted and implemented.
Please contact our office if you have any questions.
USCIS published a Final Rule in the Federal Register on November 18, 2016 implementing a number of provisions proposed at the end of 2015. USCIS described the stated goal of the rule changes as follows:
“These changes are primarily intended to better enable U.S. employers to employ and retain high-skilled workers who are beneficiaries of employment-based immigrant visa (Form I-140) petitions, while increasing the ability of these workers to further their careers by accepting promotions, changing positions with current employers, changing employers, and pursuing other employment opportunities.”
The most important provisions of the new regulations are set forth below.
Retention of I-140 Priority Dates
The Beneficiary of an approved I-140 Visa Petition is entitled to retain the Priority Date in connection with a future I-140 in any employment category regardless of how much time has passed since the Petition was approved, unless the Petition was revoked for fraud, misrepresentation, or “material error.”
Retention of I-140 Petition Approval
In addition to retaining the Priority Date, the Petition remains approved despite withdrawal by the Petitioner or termination of the Petitioner’s business, if the withdrawal or termination of the Petitioner’ business occurs more than 180 days after the Petition was approved OR more than 180 days after an I-485 Adjustment of Status has been filed.
Employment Authorization (EAD) based on compelling circumstances
An EAD valid for one year may be available for the Beneficiary of an approved I-140 and family members if (1) the applicant is in E-3, H-1B, H-1B1, O-1 or L-1 status (2) there is no visa number available and (3) the applicant can show “compelling” circumstances.” While not defined, some examples provided include serious illness or disability, employer dispute or retaliation, serious harm to the applicant, and substantial disruption to the employer.
Applicants granted an EAD based on compelling circumstances will not be maintaining nonimmigrant status and will therefore generally be ineligible for Adjustment of Status. However, they will not accrue unlawful presence while remaining in the US and working with the EAD.
Automatic Extension of Expiring EADs
An application to extend an EAD may be filed up to 180 days prior to expiration. For certain nonimmigrant classifications, the EAD is automatically extended for up to 180 days beyond the stated expiration date provided a request for extension is timely filed. Unfortunately, this provision does not extend to all classes of foreign nationals who are eligible for EADs, including L-2 spouses and qualifying H-4 spouses. NOTE: DHS has eliminated the requirement that the USCIS adjudicate I-765 EAD applications within 90 days.
Supplement J to I-485
This new form will be required to confirm existence of a valid job offer if claiming I-485 portability, and can also be requested by the adjudicator to confirm the original I-140 job. This form will solicit very specific information about the job offer and the employer to insure that the offered position is consistent with the original approval.
H-1B Visa Status
The Beneficiary of an H-1B Petition may start work with a new Petitioner if a new H-1B Petition is filed while maintaining H status, OR while a timely filed Petition Extension is pending.
An extension of stay beyond the normal six year limitation in one year increments is available if a Labor Certification or I-140 Visa Petition is filed at least 365 days prior to the start date requested in the petition, even if that date is less than 365 days before the 6 year limitation is reached.
An extension of stay beyond the normal six year limitation in three year increments is available for H-1B workers who are the beneficiaries of an approved I-140 Petition and for whom, at the time the H-1B extension is requested, an immigrant visa number is not available due to per country limitations.
A position requiring state licensing may be approved without the license if the job duties can be fully performed under the supervision of a licensed professional OR failure to obtain a license is due to technical reasons such as lack of a Social Security number or employment authorization.
A Beneficiary counted under the H-1B cap may recapture any time spent outside the US in order to utilize the full 6 years available.
A Beneficiary counted under the H-1B cap who is absent from the U.S. for more than one year has the option to recapture time remaining within the six year limit without being subject to the cap. The Beneficiary also has option to seek a new 6 year period of stay by subjecting to the cap.
Grace Periods for Nonimmigrant Workers
A 10 day grace period allowed for E-1, E-2, E-3, L-1, and TN before and after their authorized period of stay. This is the same as the existing rule for H-1B, O-1, and P status.
A 60 day grace period for E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TN is provided upon termination of employment. This is limited to one 60 day period per authorized validity of underlying petition.