Articles Posted in General

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U.S. Citizenship and Immigration Services (USCIS) issued an updated policy memo with guidance to adjudicators regarding the discretion to deny an application, petition, or request without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) if initial evidence is not submitted or if the evidence in the record does not establish eligibility.

The updated policy was effective September 11, 2018, and applies to most applications, petitions, and requests received after the effective date.  Petitions and applications not subject to the policy are those received on or before September 11, 2018; and Deferred Action for Childhood Arrivals (DACA), asylum, and refugee cases.

The previous policy instructed USCIS adjudicators to issue statutory denials without an RFE or a NOID only if there was no legal basis for the benefit requested or the benefit requested was nonexistent.  The policy also stated that adjudicators should issue an RFE unless there was “no possibility” that the deficiency could be cured by submission of additional evidence.  This provided filers the opportunity to submit additional requested evidence to prove eligibility and achieve case approval.  In addition, adjudicators were instructed to issue NOIDS which provide filers the opportunity to rebut evidence of ineligibility or derogatory information that has been discovered by USCIS and may affect eligibility.

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Starting October 1, 2018, U.S. Citizenship and Immigration Services (USCIS) will implement its June 28, 2018, policy memo that updated guidance on the issuance of Notices to Appear (NTAs).  This policy will be implemented based on the Executive Order 13768, Enhancing Public Safety in the Interior of the United States issued on January 25, 2017, which set forth the administration’s enforcement priorities “against all removable aliens.”

Background

A Notice to Appear is the Department of Homeland Security’s (DHS) Form, I-862, that is issued to a noncitizen whom the federal government believes to be removable from the United States. This document instructs them to appear before an immigration judge on a certain date and commences removal proceedings.

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Effective December 23, 2016, the U.S. Citizenship and Immigration Services (USCIS) will increase the fees required for most immigration applications and petitions.  Applications and petitions postmarked or filed on or after December 23, 2016, must include these new fees or USCIS will reject the submission.

Here is a partial list of common forms with fee increases:

  • Form N-400, Application for Naturalization from $595 to $640
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Based on the recently released guidance from the U.S. Department of State (DOS), individuals who hold nonimmigrant visas in the U.S. are likely to face severe consequences if arrested for Driving Under the Influence (DUI) or a related offense. Earlier this year, DOS made public all unclassified content in its policy manual for DOS and its officers. According to its policy manual, DOS “has the authority to prudentially revoke a visa on the basis of a potential [health-related ground of] ineligibility” when DOS receives notification of “an arrest or conviction of driving under the influence, driving while intoxicated, or similar DUI arrests/convictions that occurred within the previous five years.”

Please contact our office if you plan to travel internationally using a nonimmigrant visa and have been arrested or convicted for a DUI or a related offense. Please also contact our office if you have any questions.

For more information, please visit the following website.

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Starting March 15, 2016, visa-exempt foreign nationals who fly to or transit through Canada will need an Electronic Travel Authorization (eTA). However, from March 15, 2016 until fall 2016, travelers who do not have an eTA can board their flight, as long as they have appropriate travel documents, such as a valid passport. During this time, border services officers can let travelers arriving without an eTA into Canada, as long as they meet the other requirements to enter Canada. Exceptions to the eTA process include U.S. citizens and travelers with a valid visa for entrance to Canada. The eTA process is similar to the U.S.’s Electronic System for Travel Authorization (ESTA), and individuals who travel to Canada on a regular basis or may be seeking to apply to the U.S. consulates in Canada as Third-Party Nationals are encouraged to apply early.

A list of visa-exempt countries can be found here.

For more information on the eTA process and how to apply, please go to the following website.

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The Department of Homeland Security’s (DHS) final rule, effective on February 16, 2016, revises regulations affecting highly skilled workers in the nonimmigrant classifications for specialty occupations from Chile, Singapore (H-1B1) and Australia (E-3); the immigrant classification for employment-based first preference (EB-1) outstanding professors and researchers; and nonimmigrant workers in the Commonwealth of the Northern Mariana Islands (CNMI)-Only Transitional Worker (CW-1) classification.

In particular, DHS is including H-1B1 and principal E-3 classifications in the list of classes of foreign nationals authorized for employment incident to status with a specific employer. This means that H-1B1 and principal E-3 nonimmigrants are allowed to work for the sponsoring employer without having to separately apply for employment authorization. Additionally, DHS is authorizing continued employment with the same employer for up to 240 days for H-1B1 and principal E-3 nonimmigrants whose status has expired while their employer’s timely filed extension of stay request remains pending.

This final rule does not impose any additional costs on employers and minimizes the potential of employment disruptions.

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Information on the 2017 Diversity Immigrant Visa Program (DV-2017), including instructions on submitting an electronic entry, answers to frequently asked questions (FAQs), and a list of countries/areas by region whose natives are eligible for DV-2017 is now available. Entries must be submitted electronically between October 1, 2015, and November 3, 2015.

The congressionally mandated Diversity Immigrant Visa Program will provide 50,000 Diversity Visas for the 2017 fiscal year. Diversity Visas are drawn from random selection among all entries to individuals who meet strict eligibility requirements, and who are from countries with low rates of immigration to the United States.

Successful Diversity Visa entrants must have at least a high school education or its equivalent, or two years of work experience within the past five years in an occupation requiring at least two years of training or experience.

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Although a foreign national entrepreneur must usually obtain authorization from the U.S. Citizenship and Immigration Services (USCIS) through the immigrant or nonimmigrant visa process to live and work in the United States, there are a variety of options available to come to the United States to start or expand a business. For example, an entrepreneur may be eligible for certain nonimmigrant classifications such as E-2 Treaty Investor or a B-1 Business Visitor. An E-2 classification enables an entrepreneur from a country that has a treaty of commerce and navigation with the United States to invest a substantial amount of money in a new or existing U.S. business. And a B-1 classification allows an entrepreneur to come to the United States to secure funding or office space, negotiate a contract, or attend certain business meetings in connection with opening a new business in the United States.

It is important to determine which classification works best as not every classification that USCIS administers will allow an entrepreneur to work in the United States. Most employment-based petitions are issued for a specific type of activity with a specific employer. Also, certain nonimmigrant classifications are subject to annual numerical limitations. These limitations can affect the amount of time it may take for an entrepreneur to obtain authorization to live and work in the United States.

We practice exclusively immigration law, and our office can assist in determining the appropriate visa classification for your circumstances and business plans. Please feel free to contact us to learn more information. We recommend that you consult with us early to best explore your U.S. immigration options in light of your business and personal goals.

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California Governor Jerry Brown signed a bill that removes the term “alien,” used in reference to foreign-born workers, from the California Labor Code. According to KPCC, Democratic Sen. Tony Mendoza of Artesia stated that removing the term was an important step toward modernizing California law because it is now commonly viewed as derogatory term.

To read the KPCC article please go to the following website.

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The employment authorization document (EAD) provides for employment authorization. Once the EAD expires, however, the employee must stop working. Continued employment is not permitted based on the filing an application to extend the EAD.

The USCIS is required by law to adjudicate EAD applications in 90 days. However, it has recently acknowledged that this requirement is not being met in many cases. The USCIS allows an EAD applicant or their counsel to initiate a service request once the person’s EAD application has been pending for at least 75 days. Such a request can be made by calling the National Customer Service Center or using its e-Request system. The expectation is that, once a service request is made, the USCIS will prioritize the case and issue the EAD within the 90-day timeframe.

We recommend applying as far in advance of the EAD expiration date to minimize the probability of a gap in employment eligibility. EAD renewal applications may be filed up to 120 days prior to the expiration date of the existing EAD.