Articles Posted in General Immigration Issues

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The H-1B court case ITServe Alliance v. USCIS consolidates several cases of information technology (IT) companies whose H-1B applications have been denied or approved with short validity periods.  Judge Collyer’s ruling for this case could carry major implications for how U.S. Citizenship and Immigration Services (USCIS) directs adjudicators to decide H-1B cases.

According to Forbes, Judge Collyer addressed three key issues in the lawsuit.  “First, the government has yet to provide a good explanation for the disparate outcomes and adjudication processes for different types of employers—those with H-1B employees who perform work on customer sites and those who do not.  The denial rates for initial H-1B petitions in [fiscal year] (FY) 2018 were 1% for large technology companies and 34% to 80% for companies that place H-1B [petition] holders at third-party sites.”

“Second, USCIS has to explain why it must require specific work assignments stretching out for three years for contractors even though the law permits H-1B professionals to be in ‘nonproductive’ time so long as they are paid.”  “Third, Judge Collyer will decide whether discovery is warranted to find out what is behind the changes in USCIS adjudications of H-1B petitions.”

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The American Immigration Lawyers Association (AILA), the national association of more than 15,000 attorneys and law professors who practice and teach immigration law, provides insight to the systemic nature of U.S. Citizenship and Immigration Services (USCIS) processing delays, and lists concrete steps you and the millions of other affected individuals and businesses can take in the face of USCIS backlogs.

Please contact our office at immigrationinfo@cornerlaw.com and refer to AILA’s handout for more information about processing delays.

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U.S. Citizenship and Immigration Services (USCIS) has issued policy guidance in the USCIS Policy Manual to clarify that violation of federal controlled substance law, including for marijuana, remains a conditional bar to establishing good moral character (GMC) for naturalization even where that conduct would not be an offense under state law.

Background 

Since 1996, several states have enacted laws to decriminalize the cultivation, possession, distribution, and use of both medical and non-medical (recreational) marijuana in their jurisdictions. However, Federal law continues to classify marijuana as a “Schedule I” controlled substance whose manufacture, cultivation, possession, or distribution may lead to criminal[1] and immigration consequences.  This guidance, contained in Volume 12 of the Policy Manual, is controlling and supersedes any prior guidance on the topic.

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The American Immigration Council (AIC), a nonprofit immigration advocacy group, published fact sheets and resources with key data points, historical information, and background on hot topics in immigration.  These publications highlight various aspects of economic contributions immigrants, such as H-1B and Temporary Protected Status workers, provide to the U.S.

H-1B

H-1B is a temporary (nonimmigrant) classification that allows employers to petition for highly educated foreign professionals to work in “specialty occupations” that require at least a bachelor’s degree or the equivalent.

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The American Immigration Lawyers Association (AILA), the national association of more than 15,000 attorneys and law professors who practice and teach immigration law, released a policy brief analysis about U.S. Citizenship and Immigration Services’ (USCIS) case processing delays.

Forbes reports the analysis found that USCIS’ average time to process a case increased by 46% over the past two fiscal years and 91% since fiscal year 2014.  Although case receipt volume appeared to have decreased, case processing times increased substantially in fiscal year 2018.

Because of the delays, tech workers are finding the process of applying for and getting H-1Bs increasingly difficult, according to the Los Angeles Times.  The article notes that AILA Vice President Jennifer Minear said, “[USCIS] delays have reached a crisis level and are the result of policies that inhibit efficiency.”

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On September 21, 2018, the Department of Homeland Security proposed new regulations related to public charge grounds of inadmissibility. The proposed regulations expand U.S. Citizenship and Immigration Services (USCIS) grounds to deny permanent resident applications based upon a green card applicant’s use of public benefit programs such as food assistance and section 8 housing vouchers.  The regulations will also apply to individuals seeking nonimmigrant visas and change of status applicants.

Background on Public Charge:

When reviewing Permanent Residence applications, USCIS determines whether applicants are likely to become a public charge or primarily dependent on the government for subsistence. Applicants found likely to become a public charge may be denied lawful permanent resident status.

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U.S. Customs and Border Protection (CBP) has expanded the I-94 website to include a feature which allows Visa Waiver Program (VWP) travelers to check the duration of their stay in the United States.  A new “View Compliance” option provides VWP travelers with the number of days remaining until their status expires, or alternatively, how many days they have overstayed.  To check their status, travelers may go to the I-94 website (https://i94.cbp.dhs.gov/), select the “View Compliance” tab, and enter their biographic and passport information.

In addition, CBP will now send email notifications to VWP travelers who are still in the United States 10 days prior to the expiration of their lawful admission period.  Travelers should note that the email notifications will originate from staycompliance-donotreply@cbp.dhs.gov; if the notification email comes from a different address, it may be fraudulent.

Please contact us if you have any questions.

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On September 1, 2017, the U.S. Department of State amended its Foreign Affairs Manual (FAM), with a new directive regarding “misrepresentation” as it relates to foreign nationals in the U.S. “who conduct themselves in a manner inconsistent with representations they made to consular officers concerning their intentions at the time of visa application or to Department of Homeland Security when applying for admission or for an immigration benefit.”  The conduct most commonly deemed “inconsistent with representations made to consular officers” is filing for adjustment of status to permanent residency shortly after arriving in the U.S. under a nonimmigrant visa, but also includes other conduct not authorized by one’s nonimmigrant visa, such as engaging in unauthorized study or employment, application for certain benefits, or marrying a U.S. citizen or permanent resident.

The new subsection in FAM instructs adjudicating officers: “If a [foreign national] violates or engages in conduct inconsistent with his or her nonimmigrant status within 90 days of entry . . . you may presume that the applicant’s representations about engaging in only status-compliant activity were willful misrepresentations of his or her intention in seeking a visa or entry.” This 90-Day Rule replaces the previous rule which held that, if a foreign national engaged in “conduct inconsistent with representations” (for example, applying for adjustment of status) within the first 30 days after entering the U.S. under a nonimmigrant status, the presumption would be that the foreign national had willfully misrepresented their intention when applying for a nonimmigrant visa.  However, if the “inconsistent conduct” occurred more than 30 days but less than 60 days after the foreign national’s arrival, there would be no presumption either for or against a supposition of willful misrepresentation, and, if the conduct occurred more than 60 days after arrival, it would be presumed that there had been no willful misrepresentation. Under the new rule, “conduct inconsistent” within 90 days of arrival invokes an automatic presumption that the foreign national willfully misrepresented him or herself in obtaining his or her nonimmigrant visa.

This constitutes a major change in the regulations governing perceived misrepresentation with far reaching potential effects.  Per 212(a)(6)(C) of the Immigration and Nationality Act, a foreign national found to have willfully misrepresented him/herself for the purpose of gaining a visa or admission to the U.S. is subject to a permanent ban on entry into the U.S. Although applicants are permitted to rebut a presumption of misrepresentation, the burden of proof falls upon the applicant to “establish that his or her true intent at the time of the presumptive willful misrepresentation was permissible in his or her nonimmigrant status.”

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On September 24, 2017, the Trump administration announced details of a revised and expanded travel ban upon nationals from Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen.  The ban immediately impacts nationals of Iran, Libya, Somalia, Syria, and Yemen with no bona fide relationship to a U.S. person or entity, and will take effect for all other impacted nationals of those countries, as well as nationals of Chad, North Korea, and Venezuela, on October 18, 2017.

The original travel ban has been the subject of numerous legal challenges which blocked implementation of the ban until June, when the U.S. Supreme Court permitted a more narrowly focused version of the ban to go into effect until the Court could ultimately rule on its constitutionality, with oral arguments scheduled for October 10, 2017.

In contrast to the original ban, which temporarily suspended travel to the U.S. by nationals of the designated countries for a period of ninety days, the new ban applies indefinitely. The new rules do not apply to legal permanent residents, nor do they apply to current nonimmigrant visa holders already in the U.S.  This means that students from the banned countries may remain and finish their studies, and business employees may stay for as long as their present visas are valid. Once their existing visas expire however, they will be subject to the travel ban.

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On September 5, 2017, the Trump administration announced the rescission of the Deferred Action for Childhood Arrivals (DACA) program.  This impacts almost 800,000 individuals who have been granted DACA.

In a June 15, 2012 memorandum, the Obama Administration announced the DACA initiative.  DACA provided certain people who came to the U.S. as children and who meet several guidelines the opportunity to request consideration of deferred action for a period of two years, subject to renewal.  DACA recipients were also eligible for work authorization.

While Congress may pass a permanent protection for DACA recipients, here are answers to some questions: