Notice to Appear Policy Memorandum

USCIS has issued a new policy memorandum affecting immigrants with certain application denials. Under this new policy memorandum, USCIS can issue Form I-862, Notice to Appear, or “NTA” to certain petitioners or applicants with denied status-impacting applications. An NTA instructs an immigrant to appear before an immigration judge, and is typically issued to immigrants who are no longer within a period of authorized stay. The issuance of an NTA is the first step in the removal proceedings process.

Beginning on October 1, 2018, USCIS may issue an NTA to individuals who have a denied status-impacting application.

Starting on November 19, 2018, USCIS can also issue an NTA based on the denial of other underlying form types. These forms include:

·         Form I-914/I-914A, Applications for T Nonimmigrant Status

·         Form I-918 Petitions for U Nonimmigrant Status

·         I-360 Petition for Amerasian, Widow(er), or Special Immigrant (Violence Against Women Act self-petitions and Special Immigrant Juvenile Petitions)

·         Form I-929, Petition for Qualifying Family Member of a U-1 Nonimmigrant

·         I-730 Refugee/Asylee Relative Petitions

·         I-485 Applications to Register Permanent Residence or Adjustment of Status

You can find more information about the new Notice to Appear policy memorandum here.

Medical Exam (Form I-693) Validity Extended to Two Years

On October 16, USCIS issued a new policy guideline for foreign nationals submitting a medical exam with Adjustment of Status applications. Form I-693, otherwise known as immigration medical exams, are required by USCIS to determine if an applicant is inadmissible to the United States for health reasons. Before the new policy was put into place, Form I-693 medical exams were only valid for one year.

While the new policy guideline extends the validity of Form I-693 to two years, applicants should take note that the medical exam must have been performed within sixty days of filing the applicant’s Adjustment of Status application. If a medical exam is performed more than sixty days before the Adjustment of Status application is filed, the medical exam will no longer be valid. USCIS indicated in this policy update that the new guidelines are effective for all new and pending I-485 Adjustment of Status applications.

The advantage of this new policy update is that a medical exam submitted with an Adjustment of Status is less likely to expire while the application is still pending. Before the validity period of the medical exam was extended from one year to two, permanent residency applications were often delayed due to expired medical exams. Since the medical exam must be valid at the time of adjudication, expired medical exams often caused Requests for Evidence (RFEs) asking for a valid medical exam, which in turn imposed unnecessary and expensive return trips to a civil surgeon for permanent residency applicants. In the new policy update, USCIS cites improvements to operational efficiencies and a reduction in Requests for Evidence as the primary reasons for increasing the validity period of medical exams.  

Proposed Change to Public Charge Rule

On September 22, the Department of Homeland Security has issued a new proposal to change the definition of ‘public charge’. In broad terms, ‘public charge’ means an individual may become dependent on government assistance, such as income maintenance. Aliens seeking permanent residency may be inadmissible on the grounds of public charge.  The Department of Homeland Security’s proposal aims to broaden the legal definition of public charge determinations.

Based on the unofficial proposed rule, individuals may be considered under the new public charge definition if they receive public benefits including supplemental security income, income maintenance, Medicare and some Medicaid, public or Section 8 housing, Temporary Assistance for Needy Families, Supplemental Nutrition Assistance Program, or institutionalization. It’s important to note that the proposed definition change to public charge does have some exceptions to certain categories of vulnerable aliens, including refugees, members of the U.S. armed forces, and asylees.  

The Department of Homeland Security indicates in this proposal that several factors will be heavily weighted when considering whether an alien may become a public charge, including education, whether the alien has received or receives public benefits, age, and ability of the alien to obtain health insurance.

In addition to modifying the definition of public charge, the proposed policy also seeks to increase the costs of I-485, I-129, I-129CW, and I-539 applications. The proposed new rule would also add additional costs to filing applications related to the public charge bond process, including Form I-945 and Form I-356.

Another aspect that is important to consider is that the final rule, if approved, is subject to a mandatory comment period before it can be finalized. This could take anywhere between several months to over a year to complete. A copy of the unofficial DHS proposal can be found here.

Unlawful Presence Policy

In August 2018, USCIS issued a new unlawful presence policy for F-1 and J-1 students. Essentially, the policy memo states that F-1 and J-1 nonimmigrants begin accruing unlawful presence starting from when they violate their nonimmigrant status. This USCIS policy memo also provided new guidance about what constitutes unlawful presence, as well as any exceptions to this rule.

Now, several U.S. colleges and universities are suing the Trump administration over this policy memorandum. Universities including Haverford College and the New School in New York City allege that USCIS violated the Administrative Procedure Act’s formal notice requirements. Moreover, the lawsuit also alleges that the new policy memo is intentionally designed to unfairly punish student visa holders and their dependents, with a potential punishment ranging from a 3-year or 10-year bar on re-entry to the United States. There are an estimated 1.2 million nonimmigrants on F, J, and M visas affected by this policy. The lawsuit is also concerned about the severity of punishment for even minor infractions, such as spelling or typographical mistakes.

This policy memorandum also poses a challenge to students attempting to calculate their accrual of unlawful presence. Unlike other visas, students are admitted for a period of ‘duration of stay’ throughout their authorized studies. This makes it challenging to calculate how much unlawful presence a nonimmigrant has accrued.

EMPLOYMENT-BASED PETITIONS NOT SUBJECT TO JUNE 2018 NTA POLICY MEMO AT THIS TIME

In June of this year, the USCIS issued a new policy memorandum with updated guidelines regarding when the USCIS should issue a Notice to Appear, or NTA, which instructs an individual to appear in court before an immigration judge. A NTA provides information about when and where the individual should appear and initiates removal proceedings against a noncitizen. Prior to this June 2018 memo, there were only a handful of situations in which the USCIS was instructed to issue a NTA. Instead, the enforcement branches of the Department of Homeland Security (such as ICE) usually issued NTAs. However, the June 2018 memo supersedes a previous 2011 memo and greatly increases the number of situations that require or permit the USCIS to issue an NTA.

 

Specifically, the new June 2018 memo states that the USCIS will issue a NTA if they deny a case for an individual who is not lawfully present in the United States. Previously, the USCIS had the discretion to issue a NTA, and generally only did so in cases involving fraud, crimes, or national security. However, under the new June 2018 memo, the USCIS is explicitly directed to issue a NTA if the beneficiary of the petition is out of status at the time the petition is denied.

 

Earlier this week, the USCIS provided some clarification about when and how this policy is being implemented. They announced their commitment to implementing the new policy and stated that it will go into effect on October 1, 2018. While the USCIS is still committed to moving forward with the new policy, they have clarified their intent to implement the new policy only gradually. In particular, they are not enforcing this policy with respect to employment-based petitions and humanitarian applications at this time, stating they plan to follow existing guidance with regard to these petition types for the time being.

O-1A Visa: Does the “O” Stand for “Overlooked”?

The O-1A visa is available for individuals with an extraordinary ability in the sciences, education, business, or athletics. Often rumors float around that an O-1A visa requires awards comparable to a Nobel Prize, Lasker Award, Olympic Medal, etc. While these are classic examples of achievements that may garner a granting of an O-1A visa, USCIS specifically sets out evidentiary criteria in recognition that an individual may have extraordinary ability without having earned such an accolade.


A common misconception is that an O-1A visa is simply the non-immigrant version of the EB-1A visa. While the criteria for each are similar, there are notable differences in the standards set for each visa type. Whether or not you may be able to qualify for an O-1A visa depends on your individual circumstances and the job for which the visa is being sought. Whether you are a Research Fellow, Resident Physician, Computer Scientist, Professor, or virtually any other position in the sciences, education, business, or athletics, and O-1A visa could be the right option for someone.


The following is a small sample of the pros/cons of the O-1A visa:


Pros: 

- Quick adjudication turnaround – allows for premium processing
- No annual cap on number of visas available
- No prevailing wage process or advertising requirements


Cons:

-Generally requires a lot of documentation/careful discussion of individual achievements
-Does not offer work authorization for O-3 dependents
-Requires an employer-sponsor of the petition for the particular position sought


In short, if you are an employer, or an individual with an employer seeking to hire you and you need quick work authorization, then the O-1A visa is worth exploring. It has several advantages over visas such as the H-1B and L-1, and too often the O-1A visa is overlooked in terms of its usefulness/viability. 

Visa Bulletin Update

Charles (“Charlie”) Oppenheim, Chief of the Visa Control and Reporting Division of the U.S. Department of State, has provided predictions for the upcoming visa bulletin. Charlie sets “Dates for Filing” based on Final Action Date estimates over the course of the next 8 to 12 months. 

In essence, the visa bulletin provides a look into when certain visas will be available to immigrants filing for adjustment of status (I-485) to obtain lawful permanent residency by either employment-based or family-sponsored petitions. The visa bulletin indicates when the “Final Action Dates” of certain visa classes will become current. In other words, the visa bulletin indicates the earliest date applicants can file their adjustment of status applications. The visa bulletin provides earliest filing dates for applicants based on country of birth.

EB-1

Charlie indicated that EB-1 Worldwide Final Action Date will move to April 1, 2017 based on the October 2018 Visa Bulletin. Charlie predicted that the EB-1 Worldwide priority date will not likely become current before 2019 due to the EB-1 demand. However, Charlie stated that EB-1 Worldwide would likely advance forward in early 2019 (i.e. ~January). Due to the demand of EB-1 at this time, Charlie is unable to predict if and when EB-1 Worldwide would become current in FY2019.

For applicants born in India and China, Charlie does not anticipate any advancement of the Final Action Date in EB-1 categories before January 2019.

EB-2 and EB-3 Worldwide

Charlie indicated that both EB-2 and EB-3 Worldwide categories would return to current in October. He anticipates that both categories will remain current through the calendar year.

VISA BULLETIN UPDATE – OCTOBER 2018

Every month, the Department of State releases a new Visa Bulletin that dictates the date a foreign national can submit the final step of the green card process.

 

Here are the updates from the newly-released October 2018 Visa Bulletin:

 

EB-1 is not current for any country. The Final Action Date for those born in China and India is June 1, 2016. This date has moved forward more than four years for both China and India compared to the last Visa Bulletin. The Final Action Date for those from all other countries is April 1, 2017. This date has moved forward ten months compared to the last Visa Bulletin.

 

EB-2 is now current for all people who are not from India and China. The Final Action Date for those from India is now March 26, 2009, while the Final Action Date for those from China is now April 1, 2015. These dates have each moved forward more than two years compared to the previous Visa Bulletin.

USCIS EXPANDS DISCRETION OF ADJUDICATORS TO ISSUE A CASE DENIAL WITHOUT FIRST ISSUING A RFE OR NOID

Since 2013, USCIS adjudicators have been instructed to issue a Request For Evidence (RFE) or Notice Of Intent to Deny (NOID) if the evidence submitted for a case was lacking or fell short of the applicable standard of proof. If a case receives a RFE or NOID, the petitioner is then able to submit additional evidence as requested by the adjudicator.

 

However, in July of this year, the USCIS announced new guidance regarding the issuing of RFEs and NOIDs. The new guidance rescinds the previous policy and grants adjudicators more discretion in denying a case outright without first issuing a RFE or NOID. This is problematic because if a case is denied and the petitioner is not given the opportunity to provide additional evidence related to their case, they may have to take extra time to resubmit their case entirely, including paying the filing fee for a second time.

 

This new policy goes into effect on September 11, 2018, and the USCIS has stated that all cases filed on September 12, 2018 or later will be subject to the new guidelines. However, if a case was filed prior to this date, it will still be adjudicated under the previous standards related to issuing a RFE or NOID.

 

However, in a teleconference last week, the Ombudsman’s Office of the USCIS stated that the goal of this new policy is not to punish innocent mistakes or misunderstandings, such as forgetting to submit a document, but rather to reduce frivolous filings, placeholder filings, and incomplete filings. The USCIS has stated that it intends to publish checklists of required initial evidence for various affected petition types on their website on September 11. Ostensibly, if all of the required initial evidence is submitted at the time of filing, the adjudicator should not issue an outright denial without first issuing a RFE or NOID. Given the above, we don't have too much fear about the new policy given the expected explicit details of what is "required" to make a prima facia showing here. In short, we don't believe this new policy will alter much in terms of practice for the vast majority of clients.

USCIS Amends Previous Position and Now Allows F-1 STEM OPT Employees to Work at Third-Party Sites

Several months ago, the USCIS revised its website to state that F-1 STEM (science, technology, engineering, and mathematics) graduates on an OPT (optional practical training) extension were no longer able to work at third-party sites. Specifically, the USCIS expressed concern that an F-1 STEM OPT employee should not receive training experience at any third-party site, such as at the location of one of the employer’s clients, since U.S. Immigration and Customs Enforcement (ICE) would be unable to visit such a site to ensure that all training obligations were being met.

The STEM OPT extension allows graduates with STEM degrees to work in the U.S. for up to three years after they graduate as long as they meet training requirements, including the development and submission of a Training Plan along with a confirmation from the employer that a valid “employer-employee” relationship exists between themselves and the STEM OPT employee. Therefore, a STEM OPT employee should be able to work at a third-party site as long as these restrictions were met. However, the revision to the USCIS website implies that even if a valid employer-employee relationship does exist for an employee working at a third-party site, this type of arrangement is prohibited due to ICE’s inability to visit the site in order to confirm that the employer is meeting the necessary requirements. Ultimately, this rule change would limit the ability of F-1 STEM OPT workers to receive valuable professional training.

As this revision was unannounced, this change created a great deal of confusion for both employers and employees who were impacted. In order to address this concern, the American Immigration Lawyers Association (AILA) contacted the Department of Homeland Security to receive clarification about this change. On August 17, the USCIS responded, amending its previous position. The USCIS has now confirmed that third-party placements for F-1 STEM OPT employees are allowed as long as the training requirements are met and as long as a bona fide employer-employee relationship is maintained.

Increase in I-907 Premium Processing Fee from $1225 to $1410

Multiple outlets are reporting that the Department of Homeland Security will publish a notice tomorrow announcing the increase in the I-907 premium processing fee from $1225 to $1410. The I-907 premium processing option allows for petitioners to request a faster processing time of 15 days for certain I-129 and I-140 petitions. This fee increase is expected to be effective on September 30, 2018.

 

For more information, please refer to the following notice from the DHS: https://s3.amazonaws.com/public-inspection.federalregister.gov/2018-19108.pdf

USCIS plan to rescind work authorization for H-4 spouses

In 2015, the Obama administration granted work authorization to H-4 visa holders whose spouses are in line to obtain their green cards. To date, over 100,000 work permits have been approved for H-4 visa holders since 2015. The majority of these work permits are held by educated Indian women whose husbands are working in the United States on H-1B visas.

 

However, in December of 2017, President Trump signed the “Buy American and Hire American” executive order. In light of this executive order, the Department of Homeland Security announced a plan to issue a new proposed rule in June of 2018 to rescind the ability of these H-4 holders to obtain work authorization on the premise that these H-4 work authorizations deprive American workers of jobs. Since that time, the publication of the new rule has been postponed twice. The USCIS has explained that it still intends to proceed with the rescission of work authorization for these H-4 visa holders but that it is currently focused on solving other issues.

 

After the DHS does propose a new rule regarding work authorization for eligible H-4 visa holders, there will be a 60-day public comment period during which time members of the public are able to submit their comments regarding the new rule. In addition, it is possible that any new rule on this topic issued by the Trump administration may face a court challenge from a district court issuing an injunction to stop the implementation of the new rule.

 

Currently, the rule allowing work authorization for eligible H-4 visa holders remains unchanged. As such, these H-4 spouses are still able to apply for and renew these work authorizations. Nevertheless, the USCIS has confirmed its intent to eventually propose a new rule regarding this topic, and as such any eligible H-4 visa holders should consider alternatives in the event that a new rule may prevent them from working in the future.

EB-2 and EB-2/NIW Retrogression Imminent Worldwide

Breaking news: The Department of State has recently noted just minutes ago that the 2nd preference category for employment-based petitions will retrogress at the end of the month of August. This means that anyone wishing to adjust their status for the remainder of the fiscal year must file their I-485 before this time.

Furthermore, it seems that the EB1 category will now NOT return to current on October 1st, 2018 but rather remain retrogressed worldwide until December 2018 at the earliest.

We will keep you posted about further developments.