Posts Tagged ‘USCIS’

Long-Pending DACA Case? Check to See If Certain Factors Apply

Friday, March 28th, 2014

A recent, informal survey among the immigration bar reveals that many long-pending (more than six months) DACA cases involved one or more of the following circumstances:

  • The requestor had a criminal history – numerous cases involved DUI-related incidents, juvenile adjudications, gang issues, and drug and theft offenses;
  • The requestor attended an online school or was homeschooled;
  • The requestor had previously been in removal proceedings or was in removal proceedings at the time of the DACA request;
  • The requestor had a petition or an application for other relief pending;
  • The requestor departed the United States for a considerable period of time either during or prior to the continuous residence period;
  • The requestor provided what the attorney considered to be a small amount of evidence to support either continuous residence during the relevant period or physical presence on June 15, 2012.

If any of these factors apply to your case, this may explain the longer processing times, even though these factors may not reflect official USCIS policy decisions or adjudication trends.  Cases pending for a year or more can been elevated to the USCIS Ombudsman’s Office for assistance.

Immigrant Visa Availability: What to Expect in the Coming Months

Friday, March 21st, 2014

The family second preference for spouses and children of lawful permanent residents (F2A), which advanced significantly in August 2013, has retrogressed for Mexico to 04/15/2012, as posted in the March Visa Bulletin. This means that those applicants who applied to adjust their status during the last six months but who do not have their cases approved before March 1 will have to wait to obtain their green cards until they reach their priority date. The State Department also advises that because there are many applicants with priority dates earlier than any listed cut-off dates, not everyone who reaches a priority date will receive a visa.(The F2A worldwide preference category is expected to retrogress by the summer.)

As the visa allocations enter the sixth month of the fiscal year, the March Visa Bulletin provides projections for the next several months based on current applicant demand patterns, with the caveat that projections are not guaranteed and “corrective” action may be required to maintain visa number use within the applicable annual limits. Nevertheless, those categories with a “current” projection are likely to remain so for the foreseeable future.

 

Family-sponsored categories (potential monthly movement)

Worldwide dates:

F1: Two to four weeks

F2A: No forward movement is expected

F2B: Four to seven weeks

F3: Four to six weeks

F4: Two or three weeks

 

Employment-based categories (potential monthly movement)

EB-1: Current

EB-2:

Worldwide: Current

China: Three to five weeks

India: No forward movement

EB-3:

Worldwide: This cut-off date has been advanced over four and one half years since last spring in an effort to generate new demand. After such a rapid advance of a cut-off date, applicant demand, particularly for adjustment of status cases, can be expected to increase significantly. Once applicant demand materializes the cut-off date could be significantly impacted. Little, if any, forward movement of this cut-off date is likely during the next few months.

China: Will remain at the worldwide date

India: Little if any movement

Mexico: Will remain at the worldwide date

Philippines: Three to six weeks

EB-4: Current

EB-5: Current.  However, insiders worry that a cut-off date for China could be established this summer or early fall.

More on Stateside Provisional Unlawful Presence Waivers and “Reason to Believe”

Friday, March 7th, 2014

Just about one year ago, USCIS began implementing a program permitting certain immediate relatives of U.S. citizens (spouses, parents of adult U.S. citizens, and minor children) who are physically present in the United States to request a provisional unlawful presence waiver prior to traveling abroad for consular processing of their immigrant visa applications. Under the program, if USCIS has “reason to believe” that the applicant may be inadmissible on grounds other than unlawful presence, the agency would not approve the waiver. For months, concerns have been raised that USCIS, taking a very broad approach to the standard “reason to believe,” has been unnecessarily denying I-601A provisional waivers. A common class of “reason to believe” denials has been those based on criminal incidents that do not render the foreign national inadmissible.

In a recent field memo, USCIS advises and reminds its officers that all evidence in the record should be carefully reviewed to make sure officers are not inadvertently excluding someone from the process based on a minor infraction, a petty offense, or one that falls under the youthful offender exception. Furthermore, the memo reminds officers that they should not find a “reason to believe” that the individual may be subject to inadmissibility solely on account of such offense, and should continue to determine whether the applicant meets the other requirements for the provisional waiver, including whether he or she warrants a favorable exercise of discretion.

Adjudication of Stand Alone I-130s Delayed; USCIS Seeks to Correct by May 2014

Friday, February 14th, 2014

USCIS is currently taking an average of 10 months to process stand-alone I-130 petitions. In order to speed up these processing times, USCIS is transferring some cases from its National Benefits Center to various USCIS regional centers. If your case is transferred, you will receive a notice in the mail and your case should be adjudicated within 60 days of the transfer date. By May 2014, USCIS expects I-130 processing times to return to the normal processing time of five months

Statutory Limit of U Visas for Victims of Certain Crimes Reached for FY2014

Thursday, January 2nd, 2014

USCIS has announced it has approved the statutory maximum of 10,000 U visas until October 1, 2014, the visa classification granted to eligible victims of certain qualifying crimes who have suffered substantial mental or physical abuse and are willing to help law enforcement authorities investigate or prosecute those crimes. USICS will continue to review pending petitions for eligibility and advises that it will send a letter to all eligible petitioners who are not granted the visa because of the cap, notifying them that they are on a waiting list to receive a U visa when visas again become available. USCIS reminds petitioners and qualifying family members that they must continue to meet eligibility requirements at the time the U visa is ultimately issued.

In recent correspondence from at least one of the regional services centers, USCIS acknowledges that U visa applicants with approvable applications will need some sort of relief, but what that relief will be is still under discussion. The Vermont Service Center indicated that it may issue conditional approvals to those applications processed after the cap was reached and such applicants could apply for work authorization. That service center is also contemplating issuing deferred action until visas become available. Those impacted should consult with their immigration attorney regarding what options may be available to them.

New USCIS “Parole in Place” Policy for Immediate Relatives of Military Members Also Paves the Way for Green Cards

Friday, December 27th, 2013

In mid-November, USCIS announced a new policy that permits eligible spouses, children, and parents of certain members of the U.S. armed forces – active duty military, certain reserves, and certain veterans – to apply for “parole in place” (PIP), a discretionary grant by USCIS that allows those who are physically present in the U.S. without inspection or admission to have their status regularized for the duration of the parole in place. Once granted PIP, the immediate relative may be eligible to adjust status to a lawful permanent resident.

The parole authority of USCIS is most frequently used to permit a foreign national who is outside the United States to come into U.S. territory for urgent humanitarian reasons or significant public benefit. But the parole authority for those already in the country has been recognized since 1998.

PIP is one of a number of initiatives that USCIS has launched in partnership with the Department of Defense to assist military members, veterans, and their families to apply for special immigration services and benefits. Finding that military members face stress and anxiety about their family members’ immigration status, which impacts their combat readiness, USCIS determined that PIP would be an appropriate relief measure for immediate family members. To be eligible, the applicant must have a qualifying relationship with the military member and must not have a criminal conviction or other serious adverse factors. USCIS will authorize PIP in one-year increments, with extensions as appropriate.

 

Most significantly, though, the grant of PIP will pave the way for family members who entered the U.S. without inspection to have an adjustment of status application filed on their behalf if they are otherwise eligible. The grant of PIP cures the problem that an applicant who entered without inspection is not eligible to adjust status, by permitting that person to fulfill the statutory requirement that he or she was “admitted or paroled” into the country.

E-Verify Can Now Directly Notify Employees of a Record Information Mismatch

Friday, September 6th, 2013

USCIS has announced that E-Verify will allow direct notification to employees if there is a record mismatch that needs to be resolved before the employee can be confirmed as work authorized. Until now, only the employer was issued a “Tentative Nonconfirmation” (TNC). A TNC occurs when information an employer provides about an employee to E-Verify does not match the data found in either DHS or Social Security Administration records. Employees (of employers who use E-Verify) can voluntarily provide an e-mail address when completing their I-9 form and they will be notified of a TNC at the same time their employer is notified by E-Verify.

Changes at the Helm of Immigration Agencies

Friday, August 23rd, 2013

In mid-July, Department of Homeland Security (DHS) Secretary Janet Napolitano announced that she would be leaving DHS to become president of the University of California, and expected to leave her post in September. A former governor of Arizona, Napolitano is only the third person to lead DHS, a department created a decade ago in the wake of the 9/11 attacks. Secretary Napolitano held the job throughout President Obama’s first term.

Apparently, Napolitano’s departure will create the 15th vacancy in the department’s 45 leadership positions. This includes the directorship of Immigration and Customs Enforcement (ICE) and USCIS. ICE Director John Morton recently announced that he would be leaving DHS at the end of July, and USCIS Director Alejandro Mayorkas recently was nominated to become DHS Deputy Secretary. Other vacancies include general counsel, privacy, legislative affairs, intelligence and analysis; those top positions are currently filled with acting officials. Rand Beer, acting DHS deputy secretary, is expected to serve as Acting Secretary until Napolitano’s permanent replacement is confirmed by the full Senate.

Update on Processing of Stateside Provisional Unlawful Presence Waivers

Friday, August 16th, 2013

In March 2013, USCIS implemented a new program that permits certain immediate relatives of U.S. citizens (spouses, parents of adult U.S. citizens, and minor children) who are physically present in the United States to request a provisional unlawful presence waiver prior to traveling abroad for consular processing of their immigrant visa applications. However, a provisional waiver will not be approved if USCIS has “reason to believe” that the applicant may be inadmissible on grounds other than unlawful presence. Based on these first five months of adjudication, the American Immigration Lawyers Association (AILA) has recently raised concern that USCIS is taking a very broad approach to the standard “reason to believe,” and has been denying I-601A provisional waivers that follow two clear patterns:

• Criminal record of arrest or conviction. “Reason to believe” denials are being issued notwithstanding evidence submitted that establishes that either the arrest did not result in a criminal conviction, that the incident was not conduct that would render the foreign national inadmissible, or that the crime for which the individual alien was convicted was not an inadmissible offense.

• Providing false name, date of birth, or other information at the time of an apprehension for entry without inspection. USCIS is denying the I-601A on the grounds that there is “reason to believe” that the alien knowingly and willfully provided false or materially misleading information while applying for an immigration benefit or while trying to gain admission to the United States. Denials are being issued even though the allegedly false or misleading information was not material, or was not given in connection with a benefit application or application for admission.

Individuals should carefully examine their circumstances and seek guidance from their immigration attorney before applying for a provisional waiver.

More Fingerprinting and Photographs for Foreign Nationals Seeking Benefits at USCIS Field Offices

Friday, May 10th, 2013

USCIS announced that commencing on May 6, 2013, foreign nationals will be required to submit fingerprints and photographs when appearing at USCIS offices for interviews or to receive evidence of an immigration benefit. This new biometrics requirement is called Customer Identity Verification (CIV). Currently, USCIS requires applicants and petitioners requesting immigration or naturalization benefits to visit an Application Support Center (ASC) to provide biometric data. This requirement will not change. Instead, USCIS will add another round of fingerprinting and photographing.  For CIV, an individual appearing at a USCIS field office for an interview or to be issued evidence of an immigration benefit will have his or her identity biometrically re-verified. Examples of evidence include temporary travel documents, parole authorizations, temporary extensions of Form I-90, and temporary I-551 stamps on passports or on Forms I-94 to evidence lawful permanent resident status.

An individual coming to USCIS for an InfoPass appointment or as the guest of an applicant or petitioner will not be required to submit biometric data.

The individual’s experience under this new process will be similar to that of an ASC appointment.  USCIS will take two fingerprints and a photograph of the individual and input this information into the US-VISIT (U.S. Visitor and Immigrant Status Indicator Technology) Secondary Inspections Tool (SIT), a Web-based application that processes, displays and retrieves biometric and biographic data. US-VISIT also links databases associated with border inspections and security. After identity verification is satisfactorily completed, individuals will proceed to their interviews or be issued their immigration documents. In instances where biometrics don’t produce a verification, other steps will be taken, which may include reprocessing at an ASC or even further questioning if an identity is suspicious.

Why is this second round of biometrics being implemented?  USCIS says to protect against identity fraud and defend against threats to national security.