Uncategorized – Immigration Briefs

New Visa Bulletin, New Possible Backlogs

DOS released the March 2023 Visa Bulletin a couple days ago and has indicated that new possible backlogs could be down the road and also appeared to remove some possible backlogs as well.

First, last month the Department of State indicated that the Family Based 2A category (spouses and minor children of Permanent Residents) had the possibility of backlogging as soon as this month. Well, this month came, and it did not backlog. In addition, this month, there was no indication that the category is in trouble of backlogging in the future. This would lead me to believe that this category should stay current for the foreseeable future.

Second, as we reported previously, the Employment-Based Second Category (which includes employer-sponsored applications for those with a Master’s Degree or higher as well as National Interest Waiver applications) is backlogged for all countries and has been so since December 2022. In this month’s bulletin, the DOS states as follows:

Since December 2022, there has been higher than expected number use and demand, mostly due to continued new filings by applicants from all countries with priority dates earlier than the established final action dates. This will necessitate corrective action in the coming months to hold number use within the maximum allowed under the Fiscal Year 2023 annual limit. This situation will be continually monitored, and any necessary adjustments will be made accordingly.

This means there is now little hope of the EB-2 category coming current or moving forward until at least October 1, 2023, when the new government fiscal year begins.

Third, the DOS is now indicating that the Employment-Based Third category (employer-sponsored cases for those positions that require a Bachelor’s degree, two years of experience, or are considered unskilled labor) may become backlogged in the near future. The DOS stated:

Increased demand in the Employment Third category may necessitate the establishment of a worldwide final action date (including Mexico and Philippines) in the coming months to hold number use within the maximum allowed under the Fiscal Year 2023 annual limit. This situation will be continually monitored, and any necessary adjustments will be made accordingly.

Other than the above, most categories did not have any changes in terms of dates. The only exceptions are Employment-Based Category 4 (special immigrants and religious workers) and the Employment-Based 5th preference for India (Investment green card) – which backlogged almost another year.

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

USCIS Changes Adjudication Standard for I-129 Renewals

B61D08D2-1849-4FCD-9897-F0AC03874CFF 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.

ALERT: Delays at some USCIS local Offices – arrive early

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)

USCIS Implements its new Customer Verification Program – Be prepared

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.

Authorized Stay? Illegal Presence? What does it all mean?

Alien Registration Receipt Card (Photo credit: Wikipedia)

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.

Lawful Status

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.

Unlawful Presence

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.

Conclusion

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.

ALERT: New Telephone Scam displaying false USCIS Information

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 and implementation of the Supreme Court DOMA decision

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.

Link to USCIS Website Information

USCIS begins returning H-1B applications not Selected in Lottery

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.

June Visa Bulletin Out

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.

New I-9 Forms for employers

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USCIS has issued a new I-9 form for employers to use when checking that their workers are eligible to work. The form goes into effect tomorrow, May 7th. (Here is a link to the form: http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=31b3ab0a43b5d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=db029c7755cb9010VgnVCM10000045f3d6a1RCRD). Most importantly USCIS has made clear that the section 1 of the form, which contains the employee information CANNOT be filled in electronically by a form filling program or HR program. Use of such programs will render the I-9 insufficient and will not protect the employer.