BREAKING: Bipartisan group of Senators sends letters to USCIS Director Francis Cissna and CIS Ombudsman Julie Kirchner citing AILA National data about case processing delays and calling for greater transparency and accountability within USCIS. http://ow.ly/90at30oJxyz
On May 3 of this year, the U.S. District Court for the Middle District of North Carolina issued a decision in litigation pertaining to a USCIS policy memo that set forth a new policy regarding foreign nationals holding nonimmigrant vis statuses valid until “D/S,” or duration of status. This ruling has a number of important implications for people holding F, J, and M statuses, as well as those holding other nonimmigrant visa statuses.
Before discussing the implications of this ruling, however, it is first necessary to provide background information for context. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996, or IIRAIRA, set forth the concept of unlawful presence; the term refers to foreign nationals who enter the United States without being admitted or paroled or who stay beyond their period of authorized stay, such as people who remain in the United States beyond the expiration of their nonimmigrant visa status. Foreign nationals who accrue more than 180 days of unlawful presence may be subject to a three-year bar from entering the United States, while those who accrue more than a year may be subject to a ten-year bar. One ambiguity in this concept is that some foreign nationals—particularly those who enter on F, J, and M statuses—are authorized to stay for the duration of their status, or “D/S,” as opposed to those who are authorized to stay until a fixed date.
Since IIRAIRA was passed, the INS and later USCIS policies held that unlawful presence for those in D/S status began to accrue only when those foreign nationals were notified by the government that they had violated status. However, on August 9, 2018, USCIS issued a policy memo that reversed this determination. This new policy memo indicates that those in F, J, or M status begin to accrue unlawful presence immediately upon violating their status, regardless of whether or not they have been notified of their violation. This policy went into effect without notice or public comment under the Administrative Procedure Act (APA).
In response to this policy change, two individuals, four universities, and the American Federation of Teachers (which also represents educators in higher education) filed a complaint in federal court that sought to inhibit and overturn the new policy. The complaint rested on two factors: that the USCIS did not comply with the APA by not permitting public comment on the proposed rule and that the policy is inconsistent with section 212(a)(9) of the Immigration and Nationality Act (INA). The government in turn filed a motion to dismiss the complaint based on the ripeness of the issue and the plaintiffs’ standing. The court, however, rejected the government’s motion and granted the plaintiffs’ motion for preliminary injunction, barring the implementation of the August 9 policy memo. In her decision, the Honorable Loretta C. Briggs held that the plaintiffs are likely to succeed in challenging the policy memo for conflicting with the INA. She also concurred with the previous understanding that unlawful presence begins only when USCIS determines that a foreign national is out of status. The court has ordered an accelerating briefing schedule for the plaintiffs’ motion for summary judgment, set to begin on May 13 and ending on May 30.
The judge’s granting of a preliminary injunction and her seeming agreement with the logic of the plaintiffs’ arguments inspires some hope that the court will ultimately side with the plaintiffs and overturn the August 9 policy memo. However, a decision is not expected until at least June. In the meantime, those who could be affected by the policy memo—those in F, J, or M status—might be better off not travelling internationally, as doing so could potentially trigger a bar to re-entering the U.S. depending on the court’s final ruling.
USCIS has announced that they will resume premium processing of H1B cap subject visas today for the 2019 cap season. Previously, USCIS has suspended premium processing last March. This is good news for many employers and beneficiaries of these applications as the additional fee is often worth the 15 calendar day turnaround on these decisions versus the many months they would otherwise have to wait for a decision.
In September of 2018, U.S. Citizenship and Immigration Services (USCIS) started to allow those with an approved immigrant visa petition to file I-485 applications according to the Dates for Filing Applications chart. The dates on this chart are the earliest dates that a person can file an I-485 application; USCIS stated that these dates may be used when they determine that there are enough immigrant visas available to accommodate the filing of additional I-485 applications. The benefit of filing according to the date on the Dates for Filing Applications chart is that the dates on the Dates for Filing Applications chart are often much earlier as compared to the dates on the Application Final Action Dates chart; as such, many applicants have been able to file I-765 and I-131 applications with their I-485 applications and thus receive an employment authorization document (EAD) or advance parole travel document much earlier. This was especially beneficial for our clients with approved EB-1 petitions, since the priority dates for the EB-1 category have retrogressed for all countries.
However, USCIS has more recently indicated that, given current trends and the number of visas available, they anticipate that applicants will need to file their I-485 applications in accordance with the dates on the Final Action Date chart and not the Dates for Filing Applications chart. While USCIS has not indicated precisely when this change will go into effect, it could happen as early as February 2019. People with an approved immigrant visa petition—especially an approved EB-1 petition—should continue to monitor both the Dates for Filing Applications chart and the Final Action Date chart to determine if they are eligible to file an I-485. Those who are able to file an I-485 based on the dates in the Dates for Filing Applications chart should strongly consider filing their I-485 sooner rather than later in order to take advantage of the potentially earlier date.
USCIS Director L Francis Cissna has recently indicated that USCIS may change its current policy on Advance Parole application abandonment. Form I-131 Application for Travel Document applications allow non-U.S. nationals without valid immigrant visas to travel internationally.
Director Cissna’s comments imply that USCIS may be discontinuing its current policy of denying pending advance parole Form I-131 applications when applicants travel abroad. It is unclear from Director Cissna’s comments when this policy change is slated to be put into effect.
The current USCIS policy indicates that if an applicant travels abroad before their travel documents are issued, the advance parole application may be considered abandoned. Previous USCIS policy mandated that valid H and L visa holders who filed adjustment of status would be exempt from their advance parole applications being considered abandoned upon foreign travel. When this policy was reversed, many H and L visa holders were forced to remain in the US for up to six months in order to obtain the requisite travel documents.
You can find more information about Advance Parole on USCIS’ website here.
The Department of Homeland Security has recently released its fall 2018 regulatory agenda, which includes a number of changes to current practices. H-1B visa holders are especially impacted by many of these changes.
First, the USCIS intends to propose a new rule that would create a registration requirement for anyone planning to file an H-1B cap-subject petition. While this rule would mean that employers would only need to file full petitions in the event that the beneficiary wins the annual lottery, there is a possibility that the USCIS will change the way the lottery works. Specifically, in light of President Trump’s “Buy American, Hire American” executive order, it is possible that the lottery may no longer be random, with more preference being given to beneficiaries with more education or higher salaries instead. In addition, the USCIS may also limit the number of applications it is willing to accept from any one company, which would likely mean that there will be fewer H-1B visas awarded to staffing companies and companies that outsource work.
Additionally, USCIS also plans to institute a rule that would define new meanings of the terms “employment,” “specialty occupation,” and “employer-employee relationship” in August of 2019, after the H-1B cap filings.
The spouses of some H-1B holders are also likely to be impacted by the new regulatory agenda. For months, the USCIS has intended to introduce a new rule rescinding work authorization of H-4 visa holders that had been introduced during the Obama administration. It appears the USCIS is finally ready to release the notice of this new rule in November of this year, and when this happens the USCIS will answer questions about whether or not current holders of H-4 EADs will be able to renew their work authorization.
Other impacts of the new regulatory agenda include USCIS updates regarding the recruitment requirements for the H-2A and H-2B programs in October 2018, revisions to the H-2A labor certification process in December 2018, and a variety of changes to the EB-5 program including increasing investment levels and limiting the designation of Targeting Employment Areas in November 2018, incorporating process changes for EB-5 Regional Center applications in March 2019, and ramping up monitoring of the EB-5 Program in September of 2019.
Furthermore, based on information presented in the new regulatory agenda, the USCIS also plans to update its fee schedule in February 2019, curtail access to the USCIS AAO for appeals and require electronic submission for all immigration benefit requests in April 2019, and eliminate the ability to file the I-140 petition and I-485 application concurrently in September 2019.
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.
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.
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.
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.
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.
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:
- Quick adjudication turnaround – allows for premium processing
- No annual cap on number of visas available
- No prevailing wage process or advertising requirements
-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.
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.
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.
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.
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.
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.
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
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.
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.