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.

Did Water Damage your Passport and/or Visa? Here is what you should do

damaged_passport_bookIn the wake of the hurricanes that have brought massive flooding to parts of Texas, Indiana, Florida and many islands in the Caribbean, many foreign nationals in the US planning foreign travel (or those outside the US planning on coming back) have passports and visas that have been water damaged.  According to the Department of Homeland Security, you should replace such documents before attempting to enter the US.  The primary reason for this is that the ink that is used in the documents does not hold up to water, and if the damage is apparent by looking at the document, there is a high likelihood that the visa/ passport will not be machine readable. People who seek reentry to the United States by air will not be permitted to board an airplane if their passports cannot be scanned. There is very little room for discretion for those entering by air, as the airlines will likely deny boarding before CBP (Customs and Border Protection) ever sees the applicant.

Those who seek reentry by land may receive greater favorable discretion, as they may be granted a waiver of the required entry document (on Form I-193, pursuant to INA 212(d)(4)). Such waivers are granted on a case-by-case basis at the discretion of the port, and there is no guarantee that it will be done in any particular case. In cases that merit favorable discretion (e.g., emergency travel due to hardship), you should call your attorney as soon as you can so that they can facilitate your return at a border port of entry by contacting them and explaining why you warrant a favorable exercise of discretion.   While ports will never pre-adjudicate admissibility, your entry may be facilitated by having your attorney make this type of inquiry in advance. The I-193 waives only the lack of a travel document and does not waive any other grounds of inadmissibility which would require a waiver under INA 212(d)(3).

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.

October Visa Bulletin Released

Today, USCIS released the October Visa Bulletin. The big changes are the EB1 coming current (as well as EB2 Worldwide) and a big jump forward in the F4 (siblings of a US Citizen) category for Worldwide, China and, to a lesser extent, India. Below is a summary of the developments this month:

Employment Based:

EB1: As predicted, the EB1 category went current across the Board, including for India and China.

EB2: The Worldwide category went current as well. EB-2 for China is now at May 22, 2013 and India is at September 15, 2008. China only moved forward about 1 week and India moved forward about 3 weeks.

EB3: Worldwide remained Current. India stayed at October 15, 2006. China, on the other hand jumped up to January 1, 2014.

Family Based:

F1: Worldwide, China and India all jumped to December 22, 2010. Mexico moved forward one month to March 1, 1996 and the Philippines remained at January 1, 2007.

F2A: Worldwide, India, China and the Philippines moved forward about 3 weeks to October 22, 2015. Mexico also moved forward about 3 weeks to October 15, 2015.

F2B:Worldwide, China and India moved forward about 1 week to November 9, 2010. Mexico moved forward about 1 week as well to July 15, 1996 and the Philippines staid at January 1, 2007.

F3:Worldwide, China and India moved forward about 2 weeks to July 22, 2005. Mexico moved forward about 2 weeks to April 22, 1995 and the Philippines moved forward about 1 week to February 22, 1995.

F4:Worldwide and China jumped forward about 2 years to May 8, 2004. India jumped a little less (about 1 year) to October 1, 2003. Mexico moved forward about 2 weeks to October 1, 1997 and the Philippines staid at June 1, 1994.

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.

Final Rule on Start-Up Entrepreneurs Delayed until Next Year

As part of its review of rules promulgated under the Obama administration near the end of his term, the Trump administration has put on hold the final rule regarding allowing start-up Entrepreneurs to temporarily come to the US and start up a company.   The final rule was put on hold until March 14, 2018.  In the meantime, the Trump administration is soliciting comments on a proposal to revoke the rule.

While the new rule was somewhat limited (it applied to entrepreneurs with a start-up in the US that was less than 3 years old and had received substantial investment from US investors or substantial grants from US government entities AND only provided a parole document as opposed to an actual visa and more standard status), it was an important rule to allow more people to come to the US and start substantial businesses that would help our economy and provide employment to US citizens.  There really was no downside the rule considering the amounts of investment required and the documentation needed to show that the company has the potential for rapid business growth and, therefore, the ability to hire substantial US workers.

However, because the new administration ordered USCIS to only use its parole authority in strict humanitarian circumstances, it appears that this new rule will be revoked prior to being implemented.  The only possibility for a reprieve would be if there is a change to the executive order regarding the use of parole authority by USCIS.

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.