General Immigration News and Updates

On May 11, 2018, United States Citizenship and Immigration Services (USCIS) issued a Policy Memorandum for Public Comment, with the comment period set to end on June 11, 2018.  The proposed change would affect those individuals and their dependents in the following statuses:  Student (F-1 Academic Student and F-2 Spouse or Child of F-1 nonimmigrant); Exchange Visitor (J-1 Exchange Visitor and J-2 Spouse or Child of J-1 nonimmigrant); and Vocational Student (M-1 Vocational Student or non-academic Student and M-2 Spouse or Child of M-1 nonimmigrant).  The new policy memorandum would change the way F, M, and J visa holders accrue unlawful presence.   A person is unlawfully present in the United States if he or she is present “after the expiration of the period of stay authorized by the Secretary of the Department of Homeland Security or is present in the United States without being admitted or paroled” according to INA §212(a)(9)(B)(ii).  If one is unlawfully present for greater than 180 days, a three year bar is placed upon the individual to return to the United States.  If the person is unlawfully present for greater than one year, a 10 year bar is placed upon the individual to return to the United States.

The current policy memorandum dated May 6, 2009, entitled “Consolidation of Guidance Concerning Unlawful Presence for Purposes of Sections 212(a)(9)(B)(i) and 212 (a)(9)(C)(i)(I) of the Act”, USCIS recognized that a Customs and Border Protection (CBP) stamp of Duration of Status (D/S) meant that those individuals with this admittance into the United States did not accrue unlawful presence until the day after USCIS formally found a nonimmigrant status violation or on the day after an Immigration Judge ordered exclusion, deportation or removal.  Those who were admitted until a specific date as shown on their Form I-94 Entry Record would start accruing unlawful presence on the day after this form expired.

USCIS now proposes that effective August 9, 2018, those F, J. or M nonimmigrants granted admission as D/S, Duration of Status, who failed to maintain their status before August 9, 2018 will start accruing unlawful presence at that time and will no longer be deemed to be in Duration of Status.  If a nonimmigrant in these statuses has been found in violation prior to this date or had their Form I-94 expire previously, they will start to accrue unlawful presence on the earlier date.  This is a significant change in policy and the understanding of duration of status and changes the requirement that only a finding by USCIS of being out of status when adjudicating a request for another immigration benefit or a finding by an immigration judge triggers unlawful presence.  Now simply being out of status as of August 9, 2018, would trigger the start of the calculation of unlawful presence.

As of August 9th if the policy becomes procedure, students will begin to accrue unlawful presence if they are not in lawful nonimmigrant status on or after August 9, 2018, defined by no longer pursuing the course of study or the authorized activity, or the day after he or she engages in an unauthorized activity.  Additionally, the day after completing the course of study or program (including any authorized practical training plus any authorized grace period (as outlined in 8 CFR 214.2)), they will begin to accrue unlawful presence.

8 CFR 214.2 allows an additional 60-day period to prepare for departure from the United States or to transfer.   An F-1 student authorized by the DSO to withdraw from classes will be allowed a 15-day period for departure from the United States. The Regulations also allow for what is commonly known as “Cap Gap” wherein an F-1 student who is the beneficiary of a Cap Subject H-1B petition with a change of status request is automatically extended until October 1st of the fiscal year in which the H-1b is filed.   As many immigration practitioners know, H-1b petitions often are not adjudicated by October 1st and this will put those F-1 students who would have been allowed to stay in the U.S. in reliance of Duration of Status after the Cap Gap period has ended at risk of accruing Unlawful Presence if they remain in the United States.  As such, this change in policy is fundamentally unfair because it was made after the filing of the fiscal year H-1B applications and will impact numerous students.

Furthermore, it is not clear how the government will allow for Re-instatement of Student status, as per the regulations at 8 CFR 214.2(f)(16), where a student who has been out of status for less than 5 months or shows an exceptional circumstance can be re-instated by USCIS and re-enrolled in school.  Re-instatement requires that the student does not have a record of repeated or willful violations of USCIS regulations.  However, if the Unlawful Presence has started to accrue, it is questionable whether USCIS will approve such requests.

As the Policy Memorandum proposes a material change in the accrual of Unlawful Presence for Students, Exchange Visitors and Vocational Students, it is sure to bring legal challenges.  The proposed change will essentially ensure that those who come here to study face additional challenges beyond their studies.

Please keep tuned in to this blog for further information as it becomes available.

 

As has become common under the present Administration, yet another country is losing Temporary Protected Status (TPS) designation.  On April 26, 2018, Homeland Security Secretary Kirstjen M. Neilson announced that Nepal will lose TPS designation on June 24, 2019.  As in past terminations, there is a delay of 12 months to allow for transition.  The April 2015 earthquake and aftershocks decimated the nation and necessitated the designation of TPS for the nation.  The Department of Homeland Security reviewed the disaster relief remediation process and determined that Nepali nationals can now safely return to the country.  Outreach efforts will be made to notify the affected individuals to advise them of the change and that they may still receive other protections under the United States immigration system for which they are eligible.  Nepali citizens with current TPS registrations will be required to re-register for TPS and additionally apply for Employment Authorization in order to legally work until the effective date of the termination on June 24, 2019.

Today, USCIS announced it has completed the H-1B cap FY 2019 random selection process on April 11. This year, USCIS received a total of 190,098 H-1B cap petitions during the H-1B cap FY 2019 filing period, which started on April 2.  The announcement means USCIS has completed the computer generated random selection process and selected enough petitions to meet the 65,000 regular cap and the 20,000 cap under the U.S. advanced degree exemption, known as the master’s cap. Next, USCIS will reject and return all unselected H-1B cap petitions with their filing fees.

As a reminder, USCIS will continue to accept and process petitions that are otherwise exempt from the cap.

 

Yesterday, U.S. Citizenship and Immigration Services (USCIS) announced the launch of a new and expanded E-Verify website, E-Verify.gov.  The website, which is in both the English and Spanish languages, includes sections for Employers, Employees, About E-Verify and myE-Verify.   E-Verify is a web-based system that allows enrolled employers to confirm the eligibility of their employees to work in the United States. E-Verify employers can verify the identity and employment eligibility of newly hired employees by electronically matching the information provided by their employees on the Form I-9, Employment Eligibility Verification, against records available to the Social Security Administration (SSA) and the Department of Homeland Security (DHS). On the website, employers will find information on Using an E-Verify Employer Agent, For Federal Contractors, Web Services, Enrolling in E-Verify, Verification Process and Monitoring & Compliance.  Employees can find specific information on E-Verify Overview, Tentative Nonconfirmation (TNC), Employee Email Notifications, Employee Rights and Responsibilities, Correct Your Immigration Record and Reporting Violations.  E-Verify is free and all employers and employees should explore and be familiar with this system since USCIS is encouraging all employers to enroll.  The attorneys at Fox Rothschild are available to assist both businesses and employees alike with any questions regarding the E-Verify system.

Today, United States Citizenship and Immigration Services (USCIS) announced the temporary suspension of premium processing for all FY 2019 cap-subject petitions. USCIS expects this suspension to last until Sept. 10, 2018. During this time, USCIS will continue to accept premium processing requests for H-1B petitions that are not subject to the FY 2019 cap.

On March 6, 2018, the US Department of State announced a change in the location of certain greencard interviews in India.

In summary, for interviews scheduled on or after April 1, 2018:

  • The US Embassy in New Delhi will no longer conduct interviews for US Permanent Residence for the spouse (IR1/CR1) and the unmarried minor child(ren) (IR2/CR2) of a US citizen
  • The US Consulate General in Mumbai will begin conducting interviews for US Permanent Residence for the spouse and the unmarried minor child(ren) of a US citizen.

The change includes cases already in process and going forward. The National Visa Center will notify applicants of the specific location of their interview, along with details relating to visa interview preparation.

This change is for the purpose of consolidating visa processing of this type in Mumbai.

Recently, United States Citizenship and Immigration Services (USCIS) changed the language in the agency’s Mission Statement.    Previous language recognized that the United States is a “nation of immigrants”.   USCIS Director L. Francis Cissna provided a statement to explain the reasoning behind the change.

New Mission Statement:
U.S. Citizenship and Immigration Services administers the nation’s lawful immigration system, safeguarding its integrity and promise by efficiently and fairly adjudicating requests for immigration benefits while protecting Americans, securing the homeland, and honoring our values.

Old Mission Statement:
USCIS secures America’s promise as a nation of immigrants by providing accurate and useful information to our customers, granting immigration and citizenship benefits, promoting an awareness and understanding of citizenship, and ensuring the integrity of our immigration system.

However, immigration advocates see this change as further demonstration that this administration does not recognize the importance of immigration to the history and growth of this nation.  By ending DACA, restricting Refugees and ending TPS designations for El Salvador, Haiti and Honduras among other actions, this administration appears on a pathway to make more changes to the U.S. immigration landscape than any recent administration.  The language of the Statue of Liberty from Emma Lazarus’ poem The New Colossus so eloquently reads:

“Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tost to me,
I lift my lamp beside the golden door!”

It does not appear that USCIS’ change in Mission Statement adheres to this vision of America nor our long history of welcoming immigrants and their significant contributions.

Last evening, President Trump delivered his State of the Union Address, which touched on many aspects of immigration.  The President’s plan consists of four pillars, summarized below:

1.)  Path to Citizenship for 1.8 million “illegal” immigrants (often referred to as Dreamers) who were brought here by their parents at a young age.  President Trump claimed that this number covers almost three times more people than the previous administration (under Deferred Action for Childhood Arrivals (DACA)). Under the Trump plan, those who meet education and work requirements, and show good moral character, will be able to become full citizens of the United States.    President Trump did not indicate any specific details how this plan would be enacted but he has made past comments that the path to citizenship would take over a decade.

2)  Building of the border wall with Mexico, hiring more federal agents and ending “catch and release” which the President called dangerous.   President Trump’s plan to end “catch and release” would require much more bed space to hold detained immigrants and doesn’t acknowledge the fact that those who are released are non-violent individuals with terms of release, much like the criminal probation/bond system.

3)  Ending the visa lottery.  President Trump claimed that the program randomly hands out green cards without any regard for skill, merit, or the safety of our people. He indicated that a merit-based immigration system should be adopted.  President Trump indicated that this merit based system would admit people who are skilled, who want to work, who will contribute to our society, and who will love and respect our country.  President Trump’s language suggests that those who enter on visa lottery do not meet these characteristics, which is contrary to the program’s purpose of creating diversity.

4) Ending what the President calls “chain migration”. President Trump claimed that a single immigrant can bring in virtually unlimited numbers of distant relatives. His plan would limit sponsorships to spouses and minor children.  This term which many people consider derogatory would end U.S. Citizens and Lawful Permanent Residents being able to re-unite with family members and would do away with sponsorships for parents of U.S. Citizens, siblings of U.S. Citizens, among others.  President Trump also does not indicate the long wait times associated with visa availability which often make it difficult to sponsor family members.

Should a person have questions regarding how the pillars may impact their case or sponsorships for family members, now would be the time to contact an immigration lawyer to discuss the person’s eligibility to file the appropriate applications.

 

 

 

U.S. PassportFox partner Matthew D. Lee has published a client alert warning that individuals who owe more than $51,000 in back taxes are now at risk of losing their U.S. passports. This has arisen under a new law requiring the Internal Revenue Service to notify the State Department of taxpayers with “seriously delinquent tax debts.”

This month the IRS will begin the process of certifying delinquent taxpayers to the State Department, which is required by law to deny passport applications or renewals filed by such individuals, and in some instances revoke existing passports. The IRS estimates that 270,000 individuals currently meet the criteria for certification to the State Department, and expects to certify an initial group this month, with additional certifications to follow weekly throughout 2018.

At-risk individuals concerned about losing their passports must take immediate steps to address their outstanding tax liabilities, by either paying such debt in full or seeking to negotiate a collection alternative such as an installment agreement or offer-in-compromise.

You can read Matt’s full Alert on the Fox Rothschild website.

On January 9, 2018, U.S. District Judge William Alsup of the Northern District of California granted an injunction that resulted in provisional relief for current DACA recipients by allowing them to renew their DACA benefits which include employment authorization and deferred action from removal. USCIS recently posted on its website that due to the federal court order, the agency has resumed accepting requests to renew a grant of deferred action under DACA. USCIS indicates that as of now, the DACA policy will be operated on the terms in place before it was rescinded on September 5, 2017.

Individuals previously granted deferred action under DACA may file for renewal. USCIS is not accepting requests from individuals who were never granted DACA before. USCIS also announced that the government will not accept or approve advance parole requests from DACA recipients.

In the FAQ previously generated by USCIS, applicants were strongly encouraged to file a renewal request within the recommended 150-120 day filing period. Many individuals have already entered this period and were previously unable to file the renewal based on the September 5, 2017 rescission. USCIS indicates in this guidance that requests received sooner than 150 days in advance will be accepted, however, this may cause less time for an extension.

If your DACA is up for renewal, an application must be filed promptly. Given the concern over whether additional court action will result in DACA being rescinded again, consideration should be made to file an application for renewal pre-emptively based on USCIS guidance for renewal. If your status runs out in more than 150 days it would be worth discussing renewal with an immigration attorney.

UPDATE: The Department of Justice has appealed the decision.  Keep posted for further information.