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According to the Administrative Procedure Act, a court may review a final agency action to determine whether it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). On February 19, 2020, in the case of v. Koumans, U.S. District Court for the District of Columbia exercised this power by reviewing USCIS’s decision to deny the H-1B visa petition for a “Market Analysis Representative.”

USCIS determined that Plaintiff,, failed to show why the position was a specialty occupation requiring a bachelor’s degree. This determination follows the Plaintiff filing an H-1B petition with USCIS, to hire a prospective employee, who held a bachelor’s degree in finance. The employer submitted a letter in support of the petition, detailing the position and the employee’s qualifications, during the initial filing. Additionally, in a Request for Evidence (RFE) Response, the employer submitted a declaration from Ethan Robinson, Senior Program Manager of the company, which detailed the job duties, the job’s significance to the company, and why a finance degree is necessary.

Through the power of 5 U.S.C. § 706(2)(A) the District Court decided to vacate and remand the agency’s decision because USCIS lacked to consider the evidence submitted in the RFE Response, mainly the Robinson Declaration. In 463 U.S. 29, 43 the court states, “Normally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” In denying the Petition, USCIS faulted for failing to show the position required a bachelor’s degree or higher. However, nowhere in reaching this decision did USCIS consider the Robinson Declaration. According to 613 F.3d at 194 “[A]n agency’s refusal to consider evidence bearing on the issue before it constitutes arbitrary agency action within the meaning of [5 U.S.C.] § 706.” By failing to consider the Robinson Declaration, as evidence bearing on the issue, USCIS constituted arbitrary and capricious action resulting in the Court’s ruling to vacate and remand the H-1B denial.

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The visa bulletin is out at this link: March 2020 Visa Bulletin

Employment-based preferences must use the Dates of Filing chart. The employment-based categories are as follows: EB-1 is current for all countries except China (October 1, 2017) and India (March 15, 2017); EB-2 is current for all countries except China (August 1, 2016) and India (July 1, 2009); EB-3 is January 1, 2019, for all countries except China (March 1, 2017) and India (February 1, 2010); EB-3 Other Worker is January 1, 2019, for all countries except China (August 1, 2008) and India (February 1, 2010). EB-4 is current for all countries except El Salvador, Guatemala, and Honduras (August 15, 2016); Religious Worker visas are current for all countries except El Salvador, Guatemala, and Honduras (August 15, 2016); EB-5 non-regional centers are current for all countries except China (December 15, 2015); EB-5 regional centers are current for all countries except China (December 15, 2015).

Family-based petitions are backlogged, however, the F2A category is current in the Final Action Dates. USCIS says that applicants in the F2A category may file using the Final Action Dates Chart for March 2020.

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On January 31, 2020 the Trump Administration expanded Presidential Proclamation 9645(commonly known as the Travel Ban 3.0) to suspend U.S. entry of nationals from the following countries: Burma (Myanmar), Eritrea, Kyrgyzstan, Nigeria, Sudan, and Tanzania.

The extended ban suspends entry for immigrants of Burma and Eritrea, Kyrgyzstan and Nigeria (except special immigrants who have provided assistance to the U.S. government) and Diversity Visa immigrants of Sudan and Tanzania.

Presidential Proclamation 9645 was initially issued in September 2017 and suspended the entry of immigrants and nonimmigrants of Iran (except F and M students and J exchange visitors), immigrants and temporary tourist and business visitors of Libya and Yemen, immigrants and nonimmigrants of North Korea and Syria, and certain government officials and their family members of Venezuela. Chad was included in the initial ban but in April 2018, Proclamation 9723 removed the visa restrictions previously imposed on Chad.

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A San Francisco immigration judge has granted a respondent’s request to become a lawful permanent resident based on an employer-sponsored petition even though the respondent has lived and worked in the U.S. without authorization. The judge decided that when the respondent was granted Temporary Protected Status (TPS gives work permits and deportation protection to people from countries in crisis) he was granted an “admission” to the U.S.

Under the provision of the Immigration and Nationality Act Section 245(k), foreign citizens remain eligible to become permanent residents through an employer-sponsored petition if they have accrued no more than 180 days of unauthorized employment or residence after they were “admitted” to the U.S.

The San Francisco immigration judge decided that since the granting of TPS is an admission and this respondent had accrued fewer than 180 days of unauthorized employment and residence after TPS was granted, he was eligible for permanent residence.

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UPDATE: USCIS Releases New and Revised Forms associated with Inadmissibility on Public Charge Grounds Final Rule

February 19, 2020

U.S. Citizenship and Immigration Services (USCIS) has released new and revised forms which must be used for applications and petitions received on and after February 24, 2020. The change is associated with the February 24, 2020 implementation of the Inadmissibility on Public Charge Grounds Final Rule, which expands USCIS’ grounds to deny applications for permanent residence and petitions for nonimmigrant status based upon the beneficiary’s or applicant’s use of public benefit programs.

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A group of eleven tech companies are suing the Department of Homeland Security arguing that USCIS’ February 2018 Policy Memo, “Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites” exceeds the agency’s power because they issued the policy as a new rule without following required rule-making procedures.

The February 2018 memo stipulates that petitioners filing H-1B petitions involving third-party worksites must provide evidence of the beneficiary’s specific work assignments and evidence of their actual control over the beneficiary.

According to the tech companies filing suit, H-1B denial rates have skyrocketed since the memo was issued. They argue that the memo functions as a new rule even though it did not undergo the required notice-and-comment procedure.

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Despite a federal judge’s order that his removal from the United States should be delayed, an Iranian student, Mohammad Shahab Dehghani Hossein Abadi, was deported on January 21, 2020. The Northwestern student attempted to return to the U.S. with a student visa when he was detained by Customs and Border Protection (CBP) at Logan Airport in Boston, MA.

American Civil Liberties Union of Massachusetts and other attorneys on Abadi’s behalf filed an emergency suite and U.S. District Judge Allison D. Burroughs issued an order delaying the student’s deportation for 48 hours. About an hour after the order was issues Abadhi was put on a plane bound for France.

Abadi’s legal team will file a motion that seeks to force the government to explain why it defied the judge’s instructions and deported Abadi.

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On January 12, 2020, in the case of Wagafe et al. v. Trump et al, U.S. District Judge Richard A. Jones decided that U.S. Citizenship and Immigration Services (USCIS) must provide over two dozen documents detailing how USCIS evaluates immigration applications.

The class action suit was filed in 2017 by the American Civil Liberties Union (ACLU) on behalf of individuals whose applications for citizenship and legal residency were delayed for long periods of time without being informed why. The lawsuit argues that government’s extreme vetting of people applying for citizenship and permanent residency under Trump’s January 2017 executive order suspending the issuance of visas and other immigration statuses to nationals of Iraq, Syria, Iran, Libya, Somalia, Sudan, and Yemen, along with the existing Controlled Application Review and Resolution Program (CARRP) violate federal laws and due process protections. The ACLU argues the executive order and CARP are designed to delay and deny citizenship and permanent residency to Muslim immigrants and immigrants from Muslim majority countries, despite their eligibility under the law.

The documents that Judge Jones has ordered USCIS to turn over, after finding that the data is directly relevant to the case, include documents regarding USCIS’ scoring methodologies, risk factors and indicators of national security concerns. Judge Jones explained, “The withheld information regarding USCIS’s processes is directly relevant to plaintiff’s claims and does not appear to be obtainable from alternative sources.” USICS has three weeks to provide the documents.

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According to Bloomberg Law, a case pending in federal district court could put a stop to USCIS’ practice of issuing of H-1B approvals that are only valid for several weeks or months despite requests for full three year validity that is allowed for H-1B petitions.

For approximately two years USCIS has been issuing H-1B approvals to information technology consulting companies that allow workers to remain in H-1B status for only a few weeks or months at a time. USCIS’ February 2018 policy requires consulting and staffing companies to submit itineraries detailing their H-1B employees’ work for the entire length of time requested on their petitions. If an employer can’t provide the full itinerary for the requested three year period, USCIS can shorten the validity of the petition to correspond with how much future work those companies can show.

Members of the IT consulting industry say the practice is causing them to lose business and thousands of dollars in filing and attorneys’ fees to request multiple H-1B extensions during the year. They also say it’s impossible to know exactly what a worker will be doing years into the future.

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On December 13, 2019 USCIS expanded its policy guidance regarding unlawful acts that may prevent an applicant from meeting the good moral character (GMC) requirement for naturalization.

Under the Immigration and Nationality Act (INA), an applicant for naturalization must establish GMC. The commission of, or conviction or imprisonment for, an unlawful act, during the statutory period for naturalization, may render an applicant ineligible for naturalization should the act be found to adversely reflect on moral character. The statutory period is generally five years for permanent residents of the United States, three years for applicants married to a U.S. citizen, and one year for certain applicants applying on the basis of qualifying U.S. military service.

Previously, the USCIS Policy Manual did not include extensive information about unlawful acts. The update to the Policy Manual provides additional examples of unlawful acts, more detailed instructions for USCIS adjudicators, and further identifies unlawful acts that may affect GMC based on judicial precedent.