Interviews for Employment Based I-485’s: What we Know so Far

3EB2E8ED-35F7-451D-B3AF-96539B02C187Beginning on October 2, 2017, USCIS started sending out interview notices for I-140 based adjustment of status applications. As of that date, all I-140 Adjustment of Status applications filed after March 6, 2017 will be subject to interviews. In case you were unaware, March 6, 2017 is the date the President signed Executive Order 13780m which began the whole move towards more intense scrutiny of applications. Below is some of the nitty gritty details of how this will work.

First, all approved I-140s (with their pending I-485 applications) will be routed to the National Benefits Center. Therefore, the most likely first notice you will receive after the approval of the I-140 is that your I-485 has been transferred to the NBC. The NBC will ensure that the case is ready for adjudication and, if necessary, issue an RFE for additional evidence that is needed to adjudicate the case. One thing to note in our experience so far: While NBC is fairly good at doing this, they do miss things sometimes. We would urge people to check the dates on their medical exams and, if you get an interview notice and more than 1 year has passed, get a new medical and bring it to the interview (otherwise the officer at the interview will request a new medical). Once they feel everything is set, they will send it on to the local office for an interview.

Second, the local office will NOT re-adjudicate the I-140. However, the local officers WILL assess the validity of the supporting documents and evaluate whether the evidence submitted was accurate, bona fide and credible. If the officer feels the underlying I-140 is not valid, they need to send the application back to the service center to re-evaluate it. The local office will ask where the foreigner is going to be working, what they are going to be doing, and could ask about experience and education as well. In addition, in employer sponsored cases they will check to make sure that the employer still intends to hire the employee in the requisite position, as well as questions about admissibility and maintenance of status.

If there are dependents, the local office will also be asked questions regarding their relationship tot he principal and to establish the bona fides of that relationship.

Third, in terms of what to prepare for the interview. For self-sponsored applications, despite the fact that the central office stated that they trained personnel on I-140 applications, in our experience the local offices have no clue what these applications are or what is required by them. It may be advantageous, because of this, to bring your attorney to the interview (at least until things settle down). In addition, you should make sure to bring all necessary documents to show maintenance of status, about any arrests or other grounds of potential inadmissibility, as well as employment documentation showing you intend to continue working in your field. If you were sponsored by an employer, you need documentation showing that the employer who sponsored you is still seeking to hire you in the same position OR that you have a new position at a new employer that is the same or similar to the original position (if the I-485 has been pending for at least 6 months). You should also bring a completed and singed I-485J. Also remember, that if you do have dependents they need to bring evidence of the bona fide relationship (marriage and birth certificate, evidence of join assets, home ownership, rental agreements, etc.). Lastly, as stated above, bring a new medical if necessary.

Remember, the purpose of the interview is to develop a more robust screening and vetting process. You need to be prepared.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

Update from Charlie Oppenheim RE: Visa Bulletin Movement

UnknownCharlie Oppenheim recently released a new update on possible movement of various visa categories.  While for the most part there are no surprises, it is good to review what he says on your particular category to ensure you are not surprised in future months.  However, overall, it was a short update this month.

EB-1:  All countries should remain current for the foreseeable future (including China and India)

EB-2:  Worldwide should remain current for the foreseeable future.  India and China will have some forward movement but not much.

EB-3:  Worldwide should remain current for the foreseeable future.  India will most likely hold steady and China will move forward slowly.  Charlie has been paying close attention to China especially because of the number of EB-2 downgrades.  To prevent any retrogression, Charlie is only moving forward slowly in that category.  The Philippines should also progress slowly.

Family based:  Mostly modest movement forward.  The only surprise is FB-4 for India, which is having lower than expected demand and may move forward more quickly than Charlie previously thought.

 

USCIS Changes Adjudication Standard for I-129 Renewals

B61D08D2-1849-4FCD-9897-F0AC03874CFFMany of you may know that USCIS has had a policy in place that allowed those filing an application to renew their status (H-1B, L-1, E-1, etc.) to file a ‘bare bones’ application – an application with just new information and none of the initial documentation sent in with the first application to show that the person qualified for the status.  This policy stated that, assuming the underlying conditions were the same for the renewal (i.e. same employer, same position, etc.) then there was no real reason to totally re-adjudicate a case unless the officer felt that the initial approval was done in error.  Just this week, USCIS changed this policy.

Before going into the new policy, you maybe asking yourself “But when I filed a renewal, I filed it with substantial documentation, did I not need to do that?”.  The answer is technically no, but realistically yes.  While the above policy was in place, especially over the last year (but even before that) most officers did not follow this policy to the letter.  In most cases, we found that if we did not include substantial documentation, even for an H-1B renewal, showing that ALL the requirements were met, USCIS would issue a Request for Evidence.  So in practice, the above policy was more of a slight leaning in favor of approving the renewal rather than the intent of the policy, which was to lighten the load of officers and those filing the cases.

So what does the new policy say?  It rescinds the old policy and states that each application should be adjudicated according to its own merits regardless if it is an initial application or a renewal.  In practice, it simply means that there is no longer a slight bias in favor of approving a renewal, and, instead, you will need to be more careful and ensure that you provide documentation with the renewal to show that ALL qualifications are met, even if the documentation was given with the original application.  It also means that the fact that a case was approved in the past, does not mean that, if you file the same documentation, the case will be approved in the future, or that USCIS will not request additional evidence the second time around.

So while this may not change the rules as much as one may have thought on first glance, it still does change them to a certain degree.  That degree will depend on the strength of the underlying case.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

November 2017 Visa Bulletin Released

UnknownThe Department of State released the November 2017 visa bulletin.  This bulletin includes some modest forward movement in most categories.

Family Based Immigrant Visa Numbers

USCIS has allowed people to base the filing of the Adjustment of Status applications on the Dates for Filing.  However those dates have not changes since last month.  As most people who file family based applications are not in the US, and the Final Action Dates have changed somewhat, I will discuss those dates below.

FB1:  Most countries moved forward a month to January 22, 2011.  Mexico also moved forward  a month to April 1, 1996.  The Philippines did not move from January 1, 2007.

FB2A:  All countries moved forward 1 month to November 15, 2015 except Mexico which moved forward a month to November 1, 2015

FB2B:  Most countries moved forward about 1 week to November 15, 2010.  The only exceptions were Mexico, which also moved forward about 1 week to July 22, 1996 and the Philippines which did not move from January 1, 2007

F3:  Most countries moved forward about 1 month to August 15, 2005.  Mexico moved forward about two weeks to May 8, 1995 and the Philippines moved forward about 1 week to March 1, 1995

F4:  Most countries moved forward about two weeks to May 22, 2004.  Mexico moved forward 1 week to October 8, 1997.  India moved forward about three weeks to October 22, 2003.  The Philippines moved forward about 1 week to June 8, 1994.

Employment Based Immigrant Visa Numbers

According to USCIS, all flings must use the Final Action Dates.  Therefore, all below dates are based upon that chart.

EB-1:  Remains current for all countries

EB-2:  Current for most countries except:  India, which moved forward about 1 month to October 8, 2008; and, China, which also moved forward about 1 month to June 15, 2013.

EB-3:  Most countries are current except: India, which did not move from October 15, 2006; China which forward about 1 month to  February 1, 2014; and, the Philippines, which moved forward about 1 month to January 15, 2016

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

 

New Rule – All Employment Based I-485 application will have Interviews

Recently USCIS issued a new rule stating that all employment based green card applications will be subject to interview starting on October 3, 2017.  Just this week AILA members and the Ombudsperson for USCIS had a Stakeholder Call to discuss the new rule. Here are the details that came out of this call:

  •  All EB applications are subject to the new rule INCLUDING NIW and EA applications.
  • Any I-485 filed prior to March 6, 2017 (the date of the EO “Protecting the Nation from Foreign Terrorist Entry into the United States” the root of this new requirement) are NOT subject to the new rule.  Those cases will still be subject to random interviews, but only about 5% of cases are so selected.
  • The Service Centers will still adjudicate the I-140’s and the local offices have been instructed not to readjudicate the I-140s however they are allowed to evaluate the evidence used to support the I-140 for accuracy and credibility.  We will have to see how this plays out in real life.
  • Once the Service Center adjudicates the I-140, the file will be sent to the National Benefits Center (NBC) to determine if all documents for the I-485 are present.  If there is no medical, this is when an RFE will be sent out for the medical (and, considering that there will be longer processing times for everything, it may be wise to not submit the medical until an RFE is issues).
  • Surprisingly, USCIS does not feel that timelines will be significantly lengthened due to this requirement.  According to USCIS employment based I-485s are only about 17% of the Field offices caseload.  We will have to see how this plays out in the real world.
  • The top field offices that will be most affected are: San Jose, San Francisco, Newark, New York, Houston, Seattle, Chicago, Dallas, Atlanta and Los Angeles.
  • In most cases families will be interviewed together.

As we learn more information we will certainly let you know.  Please do contact us with any questions on how you may be impacted.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

30/60 Day Rule is Removed from FAM, Replaced with 90 Day Rule

images.jpegMany of you may not be aware of the 30/60 day rule.  The Department of State in its Foreign Affairs Manual (FAM) has a section on willful misrepresentations.  Part of this section describes how to determine willful misrepresentations in the case of people who enter the US on a non-immigrant visa but then undertake activities which contradict that status.  A good example is if someone enters the US on a tourist visa and then marries a US Citizen or begins to work without authorization.  Under its old rule, the Department of State would consider such activities as prima facie evidence of a willful misrepresentation if the activities occurred within 30 days of entry on the non-immigrant visa.  If the events occurred within 60 days of entry, they would not constitute prima facie evidence of a willful misrepresentation, however, if the facts of the case give the officer a reasonable belief that a misrepresentation was made they should ask for countervailing evidence from the foreigner.  If the activity took place more than 60 days after entry, then actual evidence of a misrepresentation would be needed.  DOS has now amended this section, and, instead, instituted a 90 day rule

The new rule states that if someone enters the US on a non-immigrant visa and undertakes certain types of activities (working without permission, undertaking a course of study (if not authorized to do so), marrying a US Citizen (only visas that require non-immigrant intent – including B and F visas), undertaking any other activity for which a change of status or adjustment of status would be required (and no such change of status or adjustment has been made) within 90 days, there will be a presumption that the person made a willful misrepresentation.

It is important to remember a few points here:

  1. This is a Department of State Rule, and, USCIS has not yet adopted it.  While USCIS has followed the 30/60 rule in the past, they did not consider it a bright line rule, rather one factor to look at.  In addition, they were much less likely to apply to marriage based cases based upon the date of marriage (they more looked at the date the I-130 was filed).  This is not to say individual officers did not apply the previous rules more strictly, but overall, USCIS did not use it a bright line test.
  2. The 90 day rule applies to when the activity occurred.  For example, in terms of a marriage based case, even waiting until 91 days has passed and then filing the I-130 does not matter if the marriage took place at day 34 – DOS would look at the date of the marriage and there would be a presumption of a willful misrepresentation.
  3. It is a presumption, not a definite finding.  In other words, you can still try to rebut the presumption if you have convincing evidence to show that you did not intend to undertake the activity when you applied for the Visa and entered the US.
  4. In terms of the marriage piece, this does not apply to those on H-1Bs, E visas, L Visas. K visas, O visas, and any other nonimmigrant visa that allows dual intent to one degree or another.

We will certainly be watching both USCIS and DOS and let you know any additional information about how this new rule is implemented.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

President Issues New Travel Restrictions

imagesOn September 24, 2017, the President issued a new Executive Order (“EO”) entitled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or other Public Safety Threats”.  This new EO builds upon the last order, which was only valid for 90 days.  However, part of the old EO directed DHS to do a worldwide review to determine what additional information is needed from each foreign country to assess whether foreign nationals who seek to enter the United States pose a security or safety threat.  DHS completed that review and gave the President a list of seven countries that had “inadequate” information sharing practices.  The new EO implements certain types of restrictions against nationals of these seven countries (plus one additional country that the President felt posed security risks) in terms of their ability to get certain visas.

Who Does the Ban Affect?

The countries that are part of this new Executive Order are:

  1. Chad
  2. Libya
  3. Iran
  4. North Korea
  5. Syria
  6. Venezuela
  7. Yemen
  8. Somalia

As stated, the restrictions are not uniform for all the above countries.  The following table lays out what restrictions are placed on immigrant and non-immigrant visas for each country:

Country Non-Immigrant Visas Immigrant Visas
Chad No B-1, B-2 or B-1/B-2 visas No Immigrant or diversity lottery visas

 

Iran No non-immigrant visas except the F, M and J student visas No Immigrant or diversity visas

 

 

Libya No B-1, B-2 or B-1/B-2 visas No Immigrant or diversity lottery visas

 

North Korea No nonimmigrant visas No Immigrant or diversity lottery visas

 

Syria No nonimmigrant visas No Immigrant or diversity lottery visas

 

Venezuela No B-1, B-2 or B-1/B-2 visas of any kind for officials of the following government agencies: Ministry of Interior, Justice, and Peace; the Administrative Service of Identification, Migration and Immigration; the Corps of Scientific Investigations, Judicial and Criminal; the Bolivarian Intelligence Service; and, the People’s Power Ministry of Foreign Affairs, and their immediate family members.

 

No Restrictions

 

Yemen No B-1, B-2 or B-1/B-2 visas No Immigrant or diversity lottery visas

 

Somalia No nonimmigrant visas No Immigrant or diversity lottery visas

 

Dual Nationals:  Dual nationals can still travel and get visas based upon another nationality besides the ones listed above (So, for example, a national of both Iran and Canada can still get any nonimmigrant visa or immigrant visa based upon their Canadian Nationality).

Those in the US at the time the travel ban takes effect:  They are not affected by the travel ban as they are already in the US.

Those Outside the US with valid visas:  Exempt from the restrictions

Permanent Residents of the US:  These people are exempt from the Travel Ban

There are other certain exemptions as well, please make an appointment if you feel you may be affected by the travel ban and we can review the waivers and exemptions with you.

When will the Ban take effect?

From 3:30 pm on September 24, 2017, until 12:01 am on October 18, 2017, Nationals of Iran, Libya, Syria Yemen and Somalia will remain under the previous Travel Ban (i.e. only those with close family ties can get visas).  Sudanese national will no longer be subject to any ban as of that date and time.

From 12:01 am on October 18, 2017, forward the above travel restrictions will be in force and will replace the previous Executive Order Travel Ban.

If you feel you may be affected by the new travel ban, please do call our office.  We can assess your case and let you know if the travel ban does affect you, and if you are eligible for any of the waiver/exemptions.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.