Many 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.
I reported the other day of the implementation by USCIS of their new identification system for those coming to the local offices for interviews or to receive evidence of their status. Well, reports are in and, as I had stated, people are experiencing long delays at many USICS local offices. If you have an interview setup go early so you can complete the whole process and still be on time. (picture from colorlines.com)
Today USCIS is implementing its new customer verification program at all local offices. Customers will now submit biometric data, specifically fingerprints and photographs, when appearing at USCIS offices for interviews or to receive evidence of an immigration benefit.
In this way, USCIS is looking to combat fraud and improve its systems. Be prepared for the above when you go to an interview or to receive proof of an immigration benefit and build in extra time for this process.
Click here to view the USCIS press release with additional information.
Many times an attorney may talk about “period of authorized stay” or “unlawful presence” or even “lawful status”. It is important to understand what all these terms mean and refer as the subtle differences between them can make a very big difference on whether you may have to leave the US or if you are able to stay in the US.
This refers to someone in the United States in a non-immigrant status with an unexpired I-94 who is acting in compliance with such status. Acting in compliance with you status means, for example, attending school with a full time course load in F-1 status, working for your authorized employer in H-1B status, not working at all in H-4 status, etc. Each status has its own requirements and every person in that status is expiated to follow those requirements. If you do not, you would no longer be considered to be in lawful nonimmigrant status and, instead, would be considered to be out-of-stays.
Period of Authorized Stay/Unlawful Status
If your I-94 expires or you violate your status as discussed above, are you automatically considered “out of status”? The answer to this is it depends on your circumstances. Even in a situation where your I-94 expires or you have violated your status, you may still be in a “period of authorized stay”, that is a period of stay authorized by the Attorney General. It is important to remember, however, even if you are in a period of authorized stay this is NOT the same as being in a valid status, and you are still considered to be in an unlawful status i.e. you are not in a lawful non-immigrant status.
There are several situation in which you can be in a period of authorized stay:
First, if you filed a timely requires to change or extend your status and subsequently your I-94 expires you will be considered to be in a period of authorized stay and are allowed to remain in the United States. A “timely” request is one that is filed while you are still in a valid non-immigrant status – that is your I-94 has not yet expired and you have not violated your status. This period of authorized stay will continue until USCIS adjudicates the case. If they approved the case, the decision will be retroactive and the entire period you were in the US will be considered in a valid non-immigrant status. While you are allowed to stay in the US during this time, you are still in the US in unlawful status until the extension or change of status application is approved
Second, if you filed a timely application to adjust status (an I-485) you will also be considered to be in a period of authorized stay even if your non-immigrant status expires and as long as the I-485 is still pending. While you are allowed to stay in the US in this situation, you are still in the US in unlawful status until the adjustment application is approved or you leave and re-enter the US in parole status.
Lastly, if you are in F or J non-immigrant status, or any other status in which your I-94 reads D/S as opposed to having an actual end date, you will be considered to be in a period of authorized stay up until the time USCIS issues a formal finding of a violation of status (more on this below). Once again, you will not longer be in lawful nonimmigrant status, but you will be in the US in a period of authorized stay.
If you are not in a valid non-immigrant status, and you are not in a period of authorized stay, you are usually accruing unlawful presence towards the 3, 10 or permanent immigration bars. Every day you are in the US and are not in a valid non-immigrant status or in a period of authorized stay, you are accruing another day of unlawful presence. If you are in the US for more than 180 days AT ONE TIME (not cumulative) in unlawful status and you leave the US you are barred from re-entering for 3 years. If you are unlawfully present in the US for more than 1 year AT ONE TIME (not cumulative), you will be barred from re-entering for 10 years. There is also a permeant bar which requires one year (cumulative) of unlawful presence IN ADDITION TO having tried to re-enter the US after the 1 year of unlawful presence and being denied re-entry (there are some exceptions to this and you should discuss your specific situation with an attorney). Furthermore, even one day of accruing unlawful presence can mean that you are ineligible to adjust status to that of a permanent resident (although there are exceptions to this general rule – again discuss your specific situation with an attorney).
You can begin to accrue illegal presence if you stay past the expiration date of your I-94 and do not have a pending extension, change or adjustment of status application pending. The same is true if you have filed a change, extension or adjustment of application and that application is then denied (and your underlying I-94 has expired). If you are in a non-immigrant status and you violate that status (i.e. work for an unauthorized employer, etc.) you will be in the US unlawfully, you would have violated your status, but you would not be accruing unlawful presence as long as your I-94 had not yet expired AND as long as USCIS had not indicated that you were no longer in status. Since those in F and J status are in the United States for “Duration of Status” or D/S, their I-94s do not expire and therefore they will not accrue illegal presence until USCIS informs them that they are no longer in status.
It is very important to understand the distinctions between unlawful presence, unlawful status, status violation, etc. as it can affect your ability to remain in the US get a visa, and can affect what happens to you if you were to leave the US. There is no substitute to talking to an attorney to determine which, if any, term applies to your status.
There is a new telephone scam whereby someone claiming to be a USCIS officer is calling people and getting personal information and credit card/bank account information. Apparently, they are using a technique so that the called ID shown is USCIS. Be warned, according to UCSIS if a real USCIS officer were to call you they would not ask for ANY payment information or personally identifiable information besides your name.
USCIS has issued a memo implementing the US Supreme Court’s decision in overturning DOMA (the Defense of Marriage Act). In a statement, SecretaryNapolitano stated:
After last week’s decision by the Supreme Court holding that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional, President Obama directed federal departments to ensure the decision and its implication for federal benefits for same-sex legally married couples are implemented swiftly and smoothly. To that end, effective immediately, I have directed U.S. Citizenship and Immigration Services (USCIS) to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse
In determining your ability to file, USCIS will generally look at the legality of the marriage in the State or Country in which you were married, not at the legality in the State in which you live. Below is a link to the USCIS webpage which has some additional information. It should also be noted that Secretary Kerry also issued a statement that the DOS will be revising its policies to come in compliance as well.
USCIS has begun returning H-1B application for cases that were not lucky enough to be picked for the random audit. If you do not recall, USCIS received more application in the first week of H-1B availability than it had visas for. Therefore, USCIS pooled all applications received during the first 5 business days and conducted a random audit to select the requisite number of cases.
We began receiving receipts within 2 weeks of the end of the lottery. However, it has taken until today, more than a month after the lottery was conducted for USICS to send back petitions that were not selected. At this point we would certainly state that if you have not heard about your petition the most likely scenario is that your application was not accepted and you will be receiving it back shortly.
The June Visa Bulletin has been released by the Department of State. EB-2 numbers for India remain at Sept. 1, 2004. This is in line with the predictions of the DOS that these numbers would not progress at all for India in the near future. For China the date is now July 15, 2008. A modest movement of about 2 months for China.
For EB-3 numbers most countries are now up to Sept. 1, 2008, a big jump. However, the Department of State cautions that once more demand surfaces, they will stop making such big jumps in the EB-3 numbers. India is at January 8, 2003 and the Philippines is at Sept. 22, 2006 – both of which are big jumps as well.
Rep. Goodlatte (R) held a press conference this morning regarding immigration reform efforts underway in the Senate. While he stated that he welcomed such efforts, he also stated that the House Judiciary committee would be looking at Immigration differently. The House will be dividing the legislation into separate bills so that Representatives can review and look at each aspect of immigration reform separately, as opposed to having one take it or leave it bill. According to Rep. Goodlatte, the first two bills will be introduced tomorrow and will concern the agricultural worker program and mandatory e-verify provisions. It should also be noted that Rep. Goodlatte does not support providing legal status to the thousands of people in the US without status at this time.
Considering Rep. Goodlatte’s previous stands on immigration, and considering the fact that the Senate, at this time, most likely will not consider piecemeal legislation, I think that this move makes it less likely that we will actually see immigration reform anytime soon. While I sincerely hope that I am wrong, and I hope that this can be worked out, I am not as hopeful as I was even yesterday. The primary issue is the fact that when each piece is separate, there is no guarantee that once one part is passed, the other parts will also be passed. In other words, if the House passes mandatory e-verify, what is to stop Republicans at that point from voting against the pathway to citizenship, even if they previously agreed to support it? I really see this move more as a way to end the immigration debate rather than as a way to move it forward. The only hope I see is that there can be some compromise whereby the senate agrees to modify the bill somewhat in return for having it pass as one bill. At this point, only time will tell.