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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.

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The visa bulletin is out at this link: December 2019

Employment-based petitions must use the Dates for Filing chart. The employment-based categories are as follows: EB-1 is current for all countries except China (September 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 current for all countries except China (March 1, 2017) and India (February 1, 2010);  EB-3 other workers is current for all countries except China (August 1, 2008) and India (February 1, 2010); EB-4 and religious worker visas are current for all countries except El Salvador, Guatemala, Honduras and Mexico (August 15, 2016); and EB-5 non-regional centers and regional centers are current for all countries except China (May 15, 2015). Family based petitions must use the Dates for Filing chart.  Family based petitions are backlogged, with the most recent date at October 1, 2019 for F2A (spouses and children under 21 of lawful permanent residents) and the longest queue for Mexico F4 (brothers and sisters of U.S. Citizens) at January 1, 1999.

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The federal judge presiding over a court case that challenges United Sates Citizenship and Immigration Services’ (USCIS) policy regarding unlawful presence calculations for student visa holders, has issued an injunction permitting the two student plaintiffs to remain in the U.S. so that they can continue to participate in the case.

The case, Guilford College et al. v. Nielsen et al., challenges USICS’ May 2018 policy that changes how unlawful presence is calculated for foreign citizens studying in the U.S. under F student, J exchange visitor, or M vocational student status. Under the new policy, USCIS considers unlawful presence accrual to begin from the date in which a student initially falls out of status, rather than from the date when USCIS formally concludes that there has been a violation and notifies the student.

According to the legal news service Law 360, the policy “could carry heavy penalties for students who inadvertently or unknowingly accrue unlawful status including re-entry bars after 180 days of unlawful presence that would prevent the students from returning to the U.S. again for years.”

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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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