Posts Tagged ‘USCIS’

Visa Bulletin Changes

Thursday, October 29th, 2015

The Department of State (DOS) and USCIS announced new procedural changes to the Visa Bulletin that may provide some relief to immigrant visa applicants affected by current visa backlogs. Under the new procedure, the Visa Bulletin presents information regarding immigrant visa number availability differently. Now, there are two sets of cut-off dates for both family- and employment-based immigrant visa categories, “Application Final Action Date” and “Date for Filing.”

The “Application Final Action Date” is essentially the same as the “Priority Date” cut-off date of previous years.  The “Date for Filing” is new.  The Department of State will use this date to determine when an immigrant visa applicant may assemble and submit required documents to the National Visa Center (NVC), following receipt of notification from the NVC. USCIS, however, will not automatically use the “Date for Filing” in adjustment of status applications. Rather, it will follow the “Application Final Action Date” chart for accepting adjustment of status applications. However, upon determining that additional immigrant visas are available, USCIS may decide to then accept adjustment applications based on the “Date for Filing” chart. USCIS expects to make that determination within a week of the posting of each new Visa Bulletin. For November 2015, USCIS has determined that applicants for adjustment may use the “Date for Filing” chart.

While the new system does not make applicants in high-demand immigrant visa categories permanent residents any sooner – it does not eliminate the severe backlogs experienced by foreign nationals of certain countries – it will provide the opportunity for individuals to obtain employment authorization and travel documents sooner than they would otherwise, which alleviates the dependency on visas for temporary work authorization, and allows them to change employers.  The new procedure also should allow cut-off dates to advance at a slower and steadier pace in contrast to the widely varying speeds with which they advanced in the past

Ongoing Delays for Interview-Waivable Cases

Friday, September 18th, 2015

Since 2013, there have been extensive adjudication delays of certain interview-waivable, family-based adjustment of status cases held at the National Benefits Center (NBC), with no real relief available while the case waits. Interview-waivable cases are those that the USCIS determines a personal interview at a USCIS field office is not required for adjustment adjudication. While in theory this is a benefit because the individual is not required to appear for an interview, in practice delayed cases are often adjudicated after a year or even longer whereas individuals scheduled for an interview at a USCIS field office normally obtain a decision and their green card within 6–8 months of filing. For the past two years, USCIS has repeatedly stated that it is trying to resolve this problem; however, delays continue. According to the latest USCIS update released on April 16, 2015, USCIS hopes to bring these cases within the regular four-month NBC processing time by the end of this fiscal year – September 30, 2015. We can only hope this means all delayed cases will be adjudicated by this date and going forward all interview-waivable cases will be processed within four months.

Certain DACA Recipients with Three-year EADS Must Return Them to USCIS

Friday, August 28th, 2015

In response to the injunction challenging President Obama’s executive action on immigration (Texas v. United States), USCIS is taking extreme measures to retrieve three-year employment authorization documents (EADs) issued to DACA recipients in violation of the court’s order even though the recall only applies to recipients who received the card after February 16, 2015. Such steps included making home visits to obtain the cards. There are more than 100,000 other DACA recipients with valid three-year EADs who do not need to return them.

As of August 5, 2015, USCIS has accounted for over 99 percent of the approximately 2,600 identified invalid work permits requiring return. USCIS sent multiple letters to such recipients warning them that they must return the EAD by July 17, 2015.  Failure to return the invalid EAD without good cause, USCIS warned, may affect the recipient’s deferred action and employment authorization. Indeed, USCIS reports that 22 recipients failed to respond to the recall, and their DACA has been terminated.

Meanwhile, the DHS Inspector General found no evidence that USCIS deliberately violated the court’s injunction when it issued the three-year EADs after the court enjoined the November 2014 executive actions on immigration.

New I-129 Form Work Visas Goes Into Effect May 1

Thursday, March 19th, 2015

USCIS released a new Form I-129 Petition for Nonimmigrant Worker, that is visually and substantively different from the prior edition. The new form, containing an edition date of 10/23/14, includes a number of new attestations that must be made by the preparer. The new form is required for all filings received by USCIS on May 1, 2015 and thereafter. (USCIS had previously announced that the new forms would be required as of 2/23/15 but moved the effective date until after the H-1B filing season.)

New Policy Announcement on the Effect of Assisted Reproductive Technology (ART) Immigration

Wednesday, February 25th, 2015

USCIS and DOS have recently collaborated in the development of a new policy on the effect of assisted reproductive technology (ART) on immigration and acquisition of citizenship. In an October 28 announcement, the agencies stated that a non-genetic gestational mother (person who carried and gave birth to the child) who is also the child’s legal mother may be recognized in the same way as genetic legal mothers are treated under the immigration laws. Previously, a genetic relationship with a U.S. citizen parent was required in order for a child born abroad to acquire citizenship at birth through his or her parent. Under the new policy:

(1)     a “natural mother” or “natural father” is a genetic parent or gestational parent. Accordingly, the “natural mother” of a child born out of wedlock includes a non-genetic gestational mother if she is the legal parent at the time of birth.

(2)     A gestational mother has a petitionable relationship without a genetic relationship to the child, as long as she is also the child’s legal parent at the time of birth.

(3)     A non-genetic gestational legal mother who is a U.S. citizen may transmit citizenship at birth, or after birth, when all other pertinent citizenship and naturalization requirements are met.

DHS To Implement Haitian Family Reunification Parole Program

Friday, February 20th, 2015

DHS announced in mid-October that starting in early 2015 it will implement the Haitian Family Reunification Parole (HFRP) program to expedite family reunification for certain eligible Haitian family members of U.S. citizens and lawful permanent residents.

Under this program, USCIS will offer certain eligible Haitian beneficiaries of already-approved family-based immigrant visa petitions, who are currently in Haiti, to be paroled into the United States up to approximately two years before their immigrant visa priority dates become current. The program is intended to promote “a fundamental underlying goal of our immigration system — family reunification” and “supports broader U.S. goals for Haiti’s reconstruction and development by providing the opportunity for certain eligible Haitians to safely and legally immigrate sooner to the United States.” Furthermore, the program is designed to discourage individuals in Haiti from undertaking life-threatening maritime journeys to the United States.  DHS advises that such individuals will not qualify for the HFRP program, and, if located at sea, may be returned to Haiti.

USCIS is not currently accepting HFRP program applications, and potential beneficiaries should not take any action at this time. Full program details are expected soon.

President Obama’s Executive Action on Immigration Law Enforcement: What Does It Mean?

Wednesday, December 24th, 2014

As most of our readers know, on November 20, President Obama announced a number of sweeping and historic immigration measures to address the country’s pressing immigration issues. The overriding principles behind the President’s announcement are: (1) prioritizing immigration law enforcement on those who pose a threat to the United States; (2) creating a program that ensures family unity; (3) facilitating the entry of highly skilled workers who contribute to the U.S. economy, and retaining those who are already here; and (4) securing the country’s borders. Two initiatives will grant work authorization and a shield against deportation for an estimated 4-5 million undocumented immigrants. Other initiatives will benefit over 400,000 foreign national employees waiting for green cards. While the announcement dominated the news and social media for several weeks, none of the actions outlined in the President’s speech and by the Department of Homeland Security shortly thereafter has taken effect.

The articles below summarize the President’s executive action, describe who is likely to be impacted, and explain when in the coming months these measures will be available to eligible foreign nationals.

Expansion of Deferred Action for Childhood Arrivals (DACA):

As announced, the program that went into effect in 2012 will be expanded by eliminating the current age cap of 31 (as of the date of the original DACA announcement). Also, the eligibility cut-off date by which an applicant must have been in the United States will be moved to January 1, 2010. Moreover, USCIS will grant DACA and work authorization for three instead of two years, which also will be extended to pending DACA renewal applicants.

USCIS expects to accept DACA application under the extended program within 90 days of November 20.

Deferred Action for Parental Accountability (DAPA):

USCIS will create a new deferred action process, similar to DACA, for parents of U.S. citizens and lawful permanent residents – such children must have been born as of November 20, 2014 – who have been continuously present in the U.S. since before January 1, 2010; who were physically present in the U.S. on November 20, 2014; and who are present at the time of application. Eligible parent-applicants will be able to request deferred action and employment authorization for three years, provided they pass required background checks.USCIS expects to begin accepting applications within 180 days of the November 20 announcement

Expansion of Provisional Waiver Program:

The provisional waiver process permits individuals who are eligible to apply for their green cards but who must apply for a waiver of inadmissibility because they have been in the United States unlawfully to do so from within the U.S. before departing for an interview at U.S. consulate abroad. Currently, only immediate relatives (spouses and children of U.S. citizens) are eligible to apply for provisional waivers. Under the expanded program, eligibility for such waivers will become available to all relatives for whom an immigrant visa is available.  In other words, the provisional waiver will be available to the spouses and children of lawful permanent residents (LPRs) as well as other relatives of U.S. citizen-petitioners. Under the provisional waiver program, applicants must show “extreme” hardship to certain U.S. citizen or LPR family members. Under the new directive, USCIS also has been instructed to provide guidance on the definition of “extreme” hardship. The agency may also consider criteria by which a presumption of extreme hardship may apply, which would make it easier for otherwise eligible green card applicants to obtain this necessary waiver.

This change will be done by regulation, but no time frame has been provided.

Work Authorization for H-4 Spouses:

A rule already proposed would permit H-4 spouses of H-1B employees to apply for an Employment Authorization Document (EAD) card. The rule as proposed limited eligibility to H-4 spouses whose H-1B spouse has begun the process to obtain permanent residency.

Final rulemaking is expected later this month or in January 2015.

Foreign Student Optional Practical Training (OPT):

The length of time for OPT for STEM (science, technology, engineering, and mathematics) graduates of U.S. institutions will be extended, and additional expansions of this program may occur, including the number of degree programs eligible for OPT.

This will be done by regulation, but no time frame has been provided.

PERM Labor Certification:

Perhaps the most common way for employees to obtain green cards is through a labor certification showing that no U.S. workers are willing, able, or available to perform the job.

Regulations will be published to modernize the PERM program and to make the program more responsive to changes in the U.S. workforce.

Relief for Employees Awaiting Green Cards and Modernizing the Employment-Based Visa System:

Each year thousands of visas go unused because the allocation system is not precise. These unused visas could be recaptured so that those waiting for their green cards can get them more quickly. DHS Secretary Jeh Johnson has directed USCIS to undertake several steps to modernize the employment-based visa system, including exploring with the Department of State optimal use of the annual visa allocations. Another measure is to permit individuals with an approved I-140 employment-based petition and caught in the lengthy visa backlog to pre-register for adjustment of status and obtain the benefits of pending adjustment. Such benefits would include obtaining EADs and travel permits. It is presumed that this would include the employee-principal applicants as well as their family-member dependents. These changes could provide tremendous flexibility for employers and their foreign national personnel. Moreover, USCIS has been instructed to clarify the types of job changes (“same or similar”) that do not require new PERM applications, and to make it clear that promotions to supervisory positions and transitions to related jobs in the field of endeavor are permissible. The change is expected to affect about 410,000 people.

No time frame has been provided for when these changes would be implemented.

Promoting Research, Development, and Entrepreneurship:

Certain foreign “inventors, researchers, and founders of start up enterprises” will be afforded new immigration options, through the clarification by USCIS that the National Interest Waiver employment-based immigrant visa category is appropriate for some and granting parole status for others.

These changes will be implemented by policy memo and regulation, but no time frame has been provided.

L-1B Specialized Knowledge Intracompany Transferees:

USCIS has been instructed to issue a long-awaited policy memorandum that will “provide clear, consolidated guidance on the meaning of specialized knowledge.” It is expected that a more lenient and consistent interpretation of the law will be implemented, which will provide more certainty for companies and reduce denials.

Southern Border and Approaches Campaign:

DHS has commissioned three new task forces, with personnel realignments to improve border security. The announcement specifically states that the objectives should not impede travel, lawful trade, and commerce.

“Secure Communities”: The controversial deportation program, also referred to as 289(g), is discontinued. The program relied on integrated databases and partnerships with local and state jailers to build domestic deportation capacity and required local law enforcement to detain individuals for ICE custody. Many state and local partners as well as rights advocates and others came to resent the program because of its detrimental effect on local law-enforcement operations, and because it became a general deportation facilitation tool rather than a tool for deporting criminals.

Immediately after President Obama’s executive action was issued, the legality of his authority and actions was raised. While many legal scholars, including some 130 law professors and former general counsel of the immigration service, have stated that the President’s actions are within the legal authority of the government’s executive branch and are consistent with similar actions taken by other presidents, a lawsuit was filed by 17 states in U.S. district court seeking declaratory and injunctive relief. The suit alleges that the Administration’s immigration executive actions violate the “Take Care Clause” of U.S. Constitution (Art. II, Sec. 3, Cl. 5) and Administrative Procedure Act (APA). It remains to seen what the court will do.

In any event, none of these programs has been implemented, and it may be months before the publication of any policy guidance or formal regulations that give these action effect.Moreover, President Obama’s actions do not provide permanent relief or status to anyone, and Congress can enact legislation to supersede any and all of these reform measures.

For months to come, the agencies will provide explanations, instructions, forms, and more detailed procedures as necessary, and we will provide those details as we learn of them. In the meantime, our experienced attorneys are available to answer questions and determine how you may benefit.

USCIS Announces Expansion of L-1 Site Visits

Friday, July 18th, 2014

USCIS recently announced an expansion of its Administrative Site Visit and Verification Program, which conducts unannounced site visits to the offices of U.S. employers who have filed H-1B — and now L-1 — visa petitions. The program is implemented by the USCIS Fraud Detection and National Security Directorate (FDNSD). Until recently, site visits targeted locations where H-1B workers were employed and verified compliance with the terms and conditions set forth in the H-1B petition filings. This expansion corresponds to a report on the L-1 visa category recently released by the Office of Inspector General, which specifically recommended that USCIS complete a site visit before approving extensions of new office L-1 petitions. It is anticipated that extensions of new office L-1 petitions will be the primary target of L-1 site visits initially. Whether the program will be expanded to longer-established companies that file L-1 petitions remains to be seen; in all likelihood, that too can be expected.

Renewing DACA

Friday, July 11th, 2014

As expected, in early June USCIS released a new dual-use form (I-821D) and instructions for individuals seeking renewal of or initial requests for Deferred Action for Childhood Arrivals (DACA) relief. First and foremost, USCIS advises that DACA renewal requests should be filed no sooner than 150 days and no later than 120 days before the current period of DACA expires, to ensure that the case is processed in time. While USCIS anticipates making a determination before the expiration date, if the agency does not adjudicate the case in time, it is likely to grant deferred action and employment authorization for a short period of time until it finishes processing the case. Second, USCIS advises that only new documentation pertaining to removal proceedings or criminal history not previously submitted should be filed with the renewal request. USCIS may request additional documents or statements to support the request for renewal of DACA, and advises that it may also contact other government agencies, education institutions, employers, or other entities in order to verify information.

USCIS will continue to accept requests for DACA from individuals who have not previously sought to access the program. As of April 2014, more than 560,000 individuals have received DACA.

Medical Reports (I-693) Now Valid for Only One Year But Can be Submitted After Initial Filing

Friday, June 20th, 2014

As of June 1, medical examination reports (I-693) submitted by applicants in support of a benefit application will be only valid for one year from the time of the civil surgeon’s signature and submission to U.S. Citizenship and Immigration Services (USCIS). In other words, the report must be submitted to USCIS within one year of the complete examination and the application must be adjudicated within one year after the date the report was submitted to USCIS. Medical exam reports are most commonly submitted in support of I-485 adjustment of status applications. Previously, since about 2002, USCIS had agreed to extend the validity of the civil surgeon’s I-693 endorsement until the time of adjudication, because of backlogs in certain preference categories. While the new policy means that some applicants must undergo another medical exam before their case is adjudicated, the good news is that medical examination forms will no longer be required as initial evidence and may be submitted at any time after filing the immigration benefit application but prior to adjudication. If the medical examination form is not filed concurrently, USCIS encourages applicants to wait until the medical examination form is requested by USCIS, either through the issuance of a Request for Evidence (RFE) or through a notice to bring a completed medical examination form to the interview. This policy change was made in response to concerns raised by the Centers for Disease Control.

In the meantime, and in anticipation of this policy change, USCIS has been sending RFEs to applicants notifying them that their medical reports filed in support of their adjustment applications are about to exceed the validity period. Moving forward, RFEs for new medical examinations will only be issued shortly before it is anticipated that the case can be adjudicated to completion.