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.

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.

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.

Supreme Court partially lifts Travel Ban Injunction

images-1Today the Supreme Court agreed to hear an appeal from the US Government arguing that the injunction placed on the Executive Order that banned travel from 6 majority muslim countries was should be lifted.  In agreeing to take the case, the Supreme Court also looked at whether the current temporary injunction should stay in effect.  The Court determined that the injunction on the travel ban and the refugee ban should stay in effect insofar as it affected people who were similarly situated as the Plaintiff’s in the case – that is to say foreigners with familial or other ties to the US (through organizations or companies).  However the Supreme Court lifted the injunction (allowing the travel ban to be put into place) for everyone else, that is to say those with NO such ties to the US.  Why did the Court lift the ban in certain cases? Basically, the Court weighted the harm to persons affected by the travel ban and refugee ban with the interests of our Government as described by the current administration.  The Court agreed with the lower Courts that the interests of the Plaintiff’s and those similarly situated to the Plaintiff’s, outweighed the interests of the Government.  But for those with no ties to the US, the Court found that the interest of our Government outweighed the interests of those individuals.

I think that there are two additional questions to ask here:  First, what does the above mean and how will it be implemented?  The second question is, does this ruling allow for any indication of how the Court will rule on the injunction itself?

To answer the first question, it is a little hard to say how the Department of Homeland Security will read the decision, however it appears that the Court only meant to narrowly lift the injunction.  Anyone who has relatives in the US or a job in the US, or a job offer, or other relationship with an organization or business in the US is still covered by the injunction.  It is only those people who have no relationship with any person or organization for whom the Ban can now be put into place.  This is a narrowly drawn exception to the injunction currently in place, and many people will not be covered by the Travel Ban.

In terms of whether or not this tips the hand of the Court in terms of  how they may rule on the case when it comes before them, I think it shows that a majority of the Court will, most likely, uphold the injunction.  But this is just my opinion, and we will have to see what happens.

Lastly, for those who are from one of the six named countries, please, please, please, call your immigration attorney before traveling outside the US so that they can discuss any potential issues with you.

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 Presidential Executive Order “Buy American, Hire American”

Many of you know that yesterday President Trump signed a new executive order.  The idea of this order was to ensure that Federal grants and procurements go, first and foremost, to American companies and that the government focuses on ensuring that qualified Americans are hired prior to foreigners.  In terms of Immigration consequences, the executive order says the following:

Sec. 5. Ensuring the Integrity of the Immigration System in Order to “Hire American.” (a) In order to advance the policy outlined in section 2(b) of this order, the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security shall, as soon as practicable, and consistent with applicable law, propose new rules and issue new guidance, to supersede or revise previous rules and guidance if appropriate, to protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse.

(b) In order to promote the proper functioning of the H-1B visa program, the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security shall, as soon as practicable, suggest reforms to help ensure that H-1B visas are awarded to the most- skilled or highest-paid petition beneficiaries.

In other words, at this time there is no effect on the H-1B program.  However, in the future, after the proposed suggested changes are given to the President, there is the possibility that some changes could be made.

It is important to keep in mind, however, that most changes would require congressional approval, meaning that it could take a while, if they are approved at all.  Changed that do not require congressional approval would need to go through the rule making process, meaning that they would take several months  for those to be sent out and to go through the rule making process.  We will keep you updated on any proposed changes.

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.

More Explanation of the Executive Order of January 27, 2017

What_Is_An_Executive_Order__0_7133975_ver1.0_640_360.jpgOn Friday, January 27, 2017 President Trump signed an executive order on immigration restricting travel to the United States from citizens of seven countries – namely, Iraq, Iran, Syria, Yemen, Sudan, Somalia & Libya. The initial interpretation and implementation of this order led to confusion among U.S. border agents and others placed with admitting individuals to the United States. This included a period of time over the weekend when returning permanent residents (green card holders) were subject to the order, denying them admission to the United States. There are now lawsuits that have been filed and we are hopeful that there will be additional judicial review and clarification of this order in due course.

In the short term, here are some points to consider:

  1. On Sunday night (January 29, 2017), the Secretary of the Department of Homeland Security, General John Kelly, confirmed that “I hereby deem the entry of lawful permanent residents to be in the national interest.” This statement means that green card holders are now (absent the receipt of significant derogatory information indicating a serious threat to public safety and welfare), exempt from the travel ban and can be admitted.  However, keep in mind that they will still put you in secondary and you will still need additional time at the airport.
  2. If you are from one of the seven countries affected and are residing in the United States in a temporary (or non-immigrant status) you should not currently make plans to travel outside the United States even if you hold a valid visa in your passport.  (there are some exceptions to this, but they are narrow.  Please contact us if you have questions).
  3. There seem to be conflicting reports as to how this affects dual nationals (so if you are in fact a dual national of a country other than the United States and of one of the seven countries) you should probably err on the side of caution until this is clarified.
  4. Individuals from countries other than those listed (Iraq, Iran, Syria, Yemen, Sudan, Somalia & Libya) are eligible to continue to travel, obtain visas and reenter the United States.
  5. This does not affect the current and ongoing status of individuals from the seven countries listed who are currently inside the United States in a valid non-immigrant status.
  6. With regards to social media postings, The Department of Homeland Security has a wide amount of discretion in terms of what they review and how they interpret that information in terms of a person’s eligibility for admission to the United States. Remember – a valid visa essentially provides you with the opportunity to be reviewed and admitted. It does not guarantee admission, so political postings and similar information could be reviewed and utilized by DHS in the context of a person’s admission to the United States.

As this is a fluid and changing situation we will continue to monitor this and provide updated relevant information as needed.

President Trump’s First Two Executive Orders Regarding Immigration: What do They Mean For You?

what_is_an_executive_order__0_7133975_ver1-0_640_360While the Executive Order President Trump signed on January 27, 2017 affecting refugees and those from certain countries has come front and center, there were two other Executive Orders that Trump signed earlier last week.

 

Border Security and Enforcement Improvements

The first of these, the Border Security and Enforcement Improvements focuses on two things:

  1. Building a wall between the US and Mexico:  While the law states that all available funding should be put towards this (that is, all funding that can be re-allocated according to law), it will take an act of Congress to allocate the funds necessary to finish its construction.
  2. In conjunction with the above the Executive Order also requires the building of additional detention facilities and the allocation of additional asylum officers and immigration Judges to the Border.  Again, this will certainly require additional resources from Congress as the current number of asylum officers and immigration Judges is inadequate for the current number of detainees.
  3. Terminate Catch and Release:  This refers to a policy that was already stopped by the Obama administration of releasing those caught at the Border instead of keeping them in detention facilities.  As this practice was already stopped, except for those qualifying for certain relief, it should have little impact.
  4. State Partnerships:  The Order also tries to push the expansion of state assistance in enforcing immigration laws
  5. Parole and Asylum:  The Order tightens expectations for asylum review and parole reviews at the Border.  It basically pushes the officers at the Border to use available expedited procedures when applicable.  Likewise, Parole should only be given when statutory standards are met.

While there are some other provisions, the above are the main provisions of this order.

Enhancing Public Safety In the Interior of the United States

The second order is called Enhancing Public Safety In the Interior of the United States. This Order focuses on:

  1. So-called “Sanctuary Jurisdictions”:  Sanctuary Jurisdictions are those jurisdictions that actively do not cooperate with the Federal Government in the enforcement of Immigration Issues and will not share or collect immigration information about persons who utilize local and/or state government services.  The Order seeks to force these jurisdictions to comply and provide such information or face a cessation of all Federal Aid (except for law enforcement).  This section appears to violate several Court cases that require any such cessation of aid to be tied closely to the purpose of the statute.
  2. The Order also re-institutes the so-called “Secure Communities” enforcement model.  This model is based upon local and state authorities helping with immigration enforcement.  However, it should be noted that much of that program was decreed unconstitutional by the Courts already.
  3. Enforcement Priorities:  The Order also sets enforcement priorities, which focuses on criminal conduct,  but includes in that criminal conduct, those who have violated immigration laws, which basically includes everyone in the US illegally.  We have to wait and see how this is interpreted by officers to see what it will mean in practice.
  4. Recalcitrant Countries:  The Order also seeks to negotiate with Countries that refuse to take their citizens that we try to deport to get them to accept such persons.
  5. Additional Immigration Officers:  The Order also states that 10,000 new immigration officers should be hired – again, this will require additional allocations by Congress.
  6. Civil Fines and Penalties:  The Order requires officers to try and get all fines and penalties allowed under the INA for immigration violations.
  7. Office for Victims of Crimes Committed by Removable Aliens:  The Order also requires USCIS to start keeping track of crimes committed by removable aliens and to release such reports to the public.
  8. Privacy Act:  The Order requires all agencies to ensure that only US Citizens and Permanent Residents are included in Privacy Acts – removing both illegal aliens AND those in the US on temporary visas.  For those people, their personally identifiable information will not longer be covered by any Federal Privacy policy.

I have tried to give you an idea of what all the major provisions of both orders are, but have just summarized them.  If you have any questions, please let me know.