USCIS Policy on Accrued Unlawful Presence by Nonimmigrant Students and Exchange Visitors.
USCIS sent information on May 11, 2018 regarding a policy memorandum that changes how it will calculate unlawful presence for students and exchange visitors in F, J, and M nonimmigrant status, including F-2, J-2, or M-2 dependents, who fail to maintain their status in the United States.> Full News
USCIS Completes the H-1B Cap Random Selection Process for FY 2019
On April11, USCIS used a computer-generated random selection process to select enough H-1B petitions to meet the congressionally-mandated and the U.S. advanced degree exemption, known as the master's cap, for fiscal year (FY) 2019.
USCIS received 190,098 H-1B petitions during filing period, which began April 2, including petitions filed for the advanced degree exemption. USCIS announced on April 6, that it had received enough H-1B petitions to reach the statutory cap of 65,000 and the master's cap of 20,000. USCIS will reject and return all unselected petitions with their filing fees unless the petition is a prohibited multiple filing.
USCIS conducted the selection process for the master's cap first. All unselected master's cap petitions then became part of the random selection process for the 65,000 cap.
USCIS will continue to accept and process petitions hat are otherwise exempt from the cap. Petitions filed for the current H-1B workers who have been counted previously against the cap, and who still retain their cap number, will also not be counted towards the FY 2019 H-1B cap. USCIS will continue to accept and process petitions filed to:
* Extended amount of time a current H-1B worker may remain in the United States.
* Change the terms of employment for current H-1B workers.
* Allow current H-1B workers to change employers.
* Allow current H-1B workers to work concurrently in a second H-1B position.
US CONSULATE WAIT TIMES
USCIS WILL TEMPORARILY SUSPEND PREMIUM PROCESSING FOR FY2019 H-1B CAP PETITIONS
USCIS announced that starting 4/2/18, it will begin accepting H-1B petitions subject to the FY2019 cap. USCIS will temporarily suspend premium processing for all FY2019 cap-subject petitions. This suspension is expected to last until 9/10/18..> Full News
EB-5 Processing Time Report Updated on 03/14/18
Attached is the link that shows the form number, form name and processing times for the following forms that areprocessed by the Immigrant Investor Program Office (IPO).> Full News
USCIS ISSUES POLICY MEMO ON H-1BS INVOLVING THIRD-PARTY WORKSITES
USCIS issued a policy memorandum, effective 2/22/18, establishing policy related to H-1Bs filed for workers who will be employed at one or more third-party worksites. Unless specifically exempted in this memo, this guidance applies to all USCIS officers adjudicating Form I-129 H-1B petition.> Full News
EB-5 PROCESSING TIME REPORT
USCIS has released the updated EB-5 Processing Time Report on February 15, 2018 with processing dates as of December 31, 2017. > Full News
EB-5 INVESTOR CAN REINVEST FUNDS FROM FRAUD-WRACKED EB-5 DEAL
A Florida federal judge has agreed to allow the court-appointed receiver for the failed Jay Peak EB-5 investment project to sink up to $67 million of immigrant investors’ money into a New York-based project that could give investors a chance to still get their green cards. U.S. District Judge Darrin P. Gayles signed off Tuesday on the request by Michael Goldberg, the receiver for the failed $350 million Vermont ski project, to funnel a portion of a $150 million settlement secured last year from Raymond James & Associates Inc. into a development project known as One Wall Street.
Select USCIS Field Offices Expected to Implement InfoPass Changes
As part of a new pilot program, select USCIS field offices are anticipated to roll out a new scheduling process for InfoPass appointments that will eliminate self-scheduling of InfoPass appointments online. Under the new pilot program, the scheduling of InfoPass appointments for select USCIS local field offices will instead be coordinated by the USCIS National Customer Service Center. The stated purpose for this new program is to avoid InfoPass appointments being utilized for routine inquiries that can be resolved via the Customer Service Hotline. According to reports, USCIS plans to implement this new pilot program at five local USCIS field offices: Hartford, CT; El Paso, TX; Jacksonville, FL; Sacramento, CA; and San Francisco, CA. Once the new pilot program is implemented, in order to schedule an InfoPass appointment at one of the above listed USCIS field offices, stakeholders will first need to contact the NCSC by phone (1-800-375-5283), speak to a Tier 1 officer, and request to schedule an InfoPass appointment. The call will then be escalated to a Tier 2 USCIS representative who will confirm that the issue is appropriate for an InfoPass appointment before scheduling the appointment. USCIS has not yet publicly released information about this new pilot program on the USCIS website and the implementation date of the program at all five of the selected USCIS field offices is not yet confirmed.
AAO Finds Level 1 Wage Appropriate for Geotechnical Engineer-in-Training
The Director of the Vermont Service Center denied the petition, concluding that the Petitioner did not establish, as required, that the submitted labor condition application (LCA) corresponds with the H-1B petition. More specifically, the Director found that the Petitioner's classification of the proffered position as a Level I wage was incorrect. The AAO sustained the appeal for a geotechnical engineer-in-training, finding that as the proffered position does not require experience, education, special skills, or supervisory duties beyond those listed in the related O*NET occupation, it is properly classified as a Level I wage. Matter of B-C-, Inc., ID# 1139516 (AAO Jan. 25, 2018)
Department of State (DOS) Cable on the Reorganization of 9 FAM 402.3-9
DOS released a cable advising posts the Visa Office has reorganized 9 FAM 402.3-9 to help guide consular officers through visa eligibility requirements for attendants, servants, and personal employees of foreign government officials and employees; officers and employees of international organizations; and NATO personnel, including A-3, C-3 (attendants, servants, and personal employees only), G-5, and NATO-7 visa applicants. As part of the reorganization, 9 FAM 402.3-9 now reflects updated legal, policy, and procedural changes, including new or amended contract terms, updates to minimum wage requirements, presumptions of ineligibility or other relevant considerations, and the applicability of INA 214(b).> Full News
NEW REQUIREMENTS FOR CHINESE VISITORS
On October 31, 2016 U.S. Customs and Border Protection (CBP) announced the launch of the Electronic Visa Update System (EVUS) website for early enrollments. All individuals with a People’s Republic of China issued passport bearing a 10-year B1/B2, B1 or B2 (visitor) visa will be required to have a valid EVUS enrollment when traveling to the United States beginning on November 29. EVUS is the online system used by nationals of the People’s Republic of China holding a 10-year B1/B2, B1 or B2 (visitor) visa to update basic biographic information to facilitate their travel to the United States. EVUS enrollments are valid for two years or until the traveler obtains a new passport or visa, whichever comes first.
CBP will not collect a fee for an EVUS enrollment at this time, but anticipates that an EVUS enrollment fee will eventually be implemented. Until the fee is implemented, travelers can complete their EVUS enrollment without charge. Travelers can submit an EVUS enrollment at any time and will typically receive a response from the system within minutes after submitting their information; however, some responses may take up to 72 hours. CBP encourages travelers to enroll in EVUS when they begin planning their trip to the United States to avoid delays.
Beginning November 29, nationals of the People’s Republic of China holding 10-year visas will not be able to travel to the United States without a valid EVUS enrollment. For travelers taking more than one flight to reach the United States, the EVUS enrollment will be verified when they check-in for their first flight. Nationals of the People’s Republic of China who hold a 10-year visa and are seeking to enter the U.S. through a land or sea port of entry must also have a valid EVUS enrollment. Until November 29, travelers may continue to travel to the United States without an enrollment. CBP operates an EVUS call center with Mandarin-speaking operators that travelers can call or email if they are experiencing technical difficulties or have questions about their enrollment. Travelers can contact the call center at 1-202-325-0180 or via email at firstname.lastname@example.org. The call center is available 24 hours a day, 7 days a week, but will be closed on U.S. federal holidays.
The EVUS process is similar to the process that travelers from 38 other countries must follow before traveling to the United States. If Chinese travelers do not update their information at least every two years, or upon obtaining a new passport after EVUS becomes effective, they will not be able to use their 10-year visas.
DOS POLICY ON VISA REVOCATION FOR NON-IMMIGRANTS WITH DUI CHARGES
The U.S. Department of State (DOS) Visa Office has recently issued new guidance to Consular Officers, instructing them to prudentially revoke visas for individuals in the U.S. who have been charged with a driving under the influence (DUI) related offense, unless the issue was already addressed in the initial visa application. Previously, visa holders who had already been issued visas and were present in the U.S. were not subject to visa revocation after the fact, and there were no consequences for DUI-related offenses until the time of the individual's next visa application.
DOS receives information on arrests and convictions through U.S. government agencies' electronic databases. If visa revocation is to occur, DOS is required to notify visa holders in writing where practical, prior to revocation. Visa revocation does not require an individual to immediately depart the U.S., assuming the individual has been admitted to the U.S. in lawful status with a corresponding valid unexpired I-94 arrival/departure record. However, visa revocation would invalidate all of the individual's currently valid visas for any future travel to the U.S. Further, an individual who departs the U.S. would then need to re-apply for a new visa at a U.S. Embassy or Consulate abroad before being able to return to the U.S. If the individual is currently present in the U.S. when revocation occurs, s/he would need to present the visa at a Consulate abroad so that the visa can be physically cancelled.
It is well established that DOS has the authority to revoke a visa based on an individual's arrest or conviction related to a DUI offense, as this may be indicative of visa ineligibility for a possible physical or mental disorder with associated harmful behavior under INA Section 212(a)(1)(A)(iii)).
It is critical that clients continue to immediately disclose all criminal-related issues to their legal counsel so that potential immigration consequences and ineligibilities can be analyzed and addressed.
EXPIRING EB-4, EB-5 PROGRAMS EXTENDED THROUGH DECEMBER 9, 2016
On Sept. 29, 2016 President Obama signed into law H.R. 5325 - Continuing Appropriations and Military Construction, Veterans Affairs, and Related Agencies Appropriations Act, 2017, and Zika Response and Preparedness Act. This Act extends the EB-5 Regional Center Program and EB-4 non-minister special immigrant program for certain religious workers until December 9, 2016.
The fate of the EB-5 Regional Center Program will continue to be hotly debated and may turn on the outcome of the Presidential election. It is likely that there would be one more temporary extension of the program while the next administration and congress works to find a middle ground on enhanced security and fraud prevention measures, as well as addressing issues such as increases in the amount of investment required and how best to determine Targeted Employment Areas (TEA’s).
EMPLOYERS MAY SUBMIT INQUIRIES IF EXTENSION OF STATUS/CHANGE OF EMPLOYER PETITION HAS BEEN PENDING FOR 210 DAYS OR MORE
On April 21, 2016, USCIS began allowing petitioners who filed Form I-129, Petition for a Nonimmigrant Worker, requesting an extension of status or change of employer to submit an inquiry after their petition has been pending for 210 days or more. This inquiry may be based on the petition being outside of normal processing times.
USCIS TO ALLOW ADDITIONAL APPLICANTS FOR PROVISIONAL WAIVER PROCESS
U.S. Citizenship and Immigration Services (USCIS) announced a final rule expanding the existing provisional waiver process to allow certain individuals who are family members of U.S. citizens and lawful permanent residents (LPRs), and who are statutorily eligible for immigrant visas, to more easily navigate the immigration process. The provisional waiver process promotes family unity by reducing the time that eligible individuals are separated from their family members while they complete immigration processing abroad, while also improving administrative efficiency.
This final rule builds on a process established in 2013 to support family unity. Under that process, certain immediate relatives of U.S. citizens can apply for provisional waivers of the unlawful presence ground of inadmissibility, based on the extreme hardship their U.S. citizen spouses or parents would suffer if the waiver were not granted. The rule announced today, which goes into effect on Aug. 29, 2016, expands eligibility for the provisional waiver process to all individuals who are statutorily eligible for the waiver of the unlawful presence ground of inadmissibility. USCIS expects to update its Policy Manual to provide guidance on how USCIS makes “extreme hardship” determinations in the coming weeks.
Until now, only immediate relatives of U.S. citizens were eligible to seek such provisional waivers before departing the United States for the processing of their immigrant visas. Those eligible for the provisional waiver process under the 2013 rule are only a subset of those eligible for the waiver under the statute. This regulation expands eligibility for the process to all individuals who are statutorily eligible for the waiver.
To qualify for a provisional waiver, applicants must establish that their U.S. citizen or lawful permanent resident spouses or parents would experience “extreme hardship” if the applicants are not allowed to return to the United States.
The final rule also makes changes to Form I-601A, Application for Provisional Unlawful Presence Waiver. Applicants should not submit a request for a provisional waiver under the expanded guidelines until the final rule takes effect on Aug. 29, 2016. If you do so before that date, USCIS may deny the application.
NEW LAW INCREASES H-1B AND L-1 PETITION FEES
The Consolidated Appropriations Act, 2016 (Public Law 114-113), signed into law by President Obama on December 18, 2015, increases fees for certain H-1B and L-1 petitioners. These petitioners must submit an additional fee of $4,000 for certain H-1B petitions and $4,500 for certain L-1A and L-1B petitions postmarked on or after December 18, 2015.
The additional fees apply to petitioners who employ 50 or more employees in the United States, with more than 50 percent of those employees in H-1B or L (including L-1A and L-1B) nonimmigrant status. These petitioners must submit the additional fees with an H-1B or L-1 petition filed:
- Initially to grant status to a nonimmigrant described in subparagraph (H)(i)(b) or (L) of section 101(a)(15) of the Immigration and Nationality Act; or
- To obtain authorization for a nonimmigrant in such status to change employers.
- This fee is in addition to the base processing fee, Fraud Prevention and Detection Fee, American Competitiveness and Workforce Improvement Act of 1998 fee (when required), as well as the premium processing fee, if applicable.
DHS ENHANCES OPPORTUNITIES FOR H-1B1, E-3, CW-1 NONIMMIGRANTS AND CERTAIN EB-1 IMMIGRANTS
The Department of Homeland Security (DHS) amended its regulations today to improve the programs serving the H-1B1, E-3 and CW-1 nonimmigrant classifications and the EB-1 immigrant classification, and remove unnecessary hurdles that place such workers at a disadvantage when compared to similarly situated workers in other visa classifications.
DHS LAUNCHES KNOWN EMPLOYER PILOT PROGRAM
The U.S. Department of Homeland Security (DHS) announced the launch of a Known Employer pilot to assess a new process for employers seeking to hire certain workers through employment-based visa categories.
By modifying the process U.S. Citizenship and Immigration Services (USCIS) uses to reviews an employer’s eligibility to sponsor individuals under certain employment-based immigrant and nonimmigrant classifications, the Known Employer pilot is expected to reduce paperwork, costs, and delays in the processing of these benefit requests. USCIS will oversee the pilot in collaboration with the DHS Office of Policy, U.S. Customs and Border Protection (CBP) and the U.S. Department of State (DOS).
H-1B FISCAL YEAR (FY) 2017 CAP SEASON
The annual H-1B filing season is upon us. USCIS recently issued information regarding H-1B cap subject cases and best practices for filing the petitions. USCIS has indicated they will accept H-1B petitions from April 1, 2016 through April 7, 2016.
EXTENSION OF POST COMPLETION OPTIONAL PRACTICAL TRAINING (OPT) AND F-1 STATUS FOR ELIGIBLE STUDENTS UNDER THE H-1B CAP-GAP REGULATIONS
Current regulations allow certain students with pending or approved H-1B petitions to remain in F-1 status during the Cap-Gap period. This is referred to as filling the "Cap- Gap," meaning the regulations provide a way of filling the "gap" between the end of F-1 status and the beginning of H-1B status that might otherwise occur if F-1 status is not extended for qualifying students.
17 MONTH OPT EXTENSION FOR STEM DEGREES APPROVED
On Friday, March 11, 2016 the Department of Homeland Security published a new rule for the Science, Technology, Engineering and Math (STEM) Optional Practical Training (OPT) Extension. This rule goes into effect on May 10, 2016.
Students who graduate with a science, technology, engineering and math (STEM) degree are eligible to remain in the United States for an additional 17 months on an optional practical training (OPT) STEM extension.
CONGRESS EXTENDS THE EB-5 PROGRAM WITHOUT CHANGES UNTIL SEPTEMBER 30, 2016
The EB-5 Immigrant Investor Program allows foreign investors to obtain U.S. Permanent Residence through investing in qualifying U.S. entities and Regional Center Projects. The extension of the Program allows investors and developers t continue access to the important program, while giving time for Congress to review and make any needed reforms.
EMPLOYMENT AUTHORIZATION TO CERTAIN H-4 DEPENDENT SPOUSES
U.S. Citizenship and Immigration Services (USCIS) Director Leon Rodriguez announced today that, effective May 26, 2015, the Department of Homeland Security (DHS) is extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants who are seeking employment-based lawful permanent resident (LPR) status. DHS amended the regulations to allow these H-4 dependent spouses to accept employment in the United States.
CBP ISSUES MEMO ON ADMISSIONS STAMP ON FORM I-20
CBP memo dated 8/10/12 instructing officers to cease the practice of placing an admission stamp on Forms I-20 A-B and I-20 M-N presented by prospective and returning students seeking admission to the U.S.
IMMIGRATION REFORM BILL INTRODUCED TO THE SENATE
Early this morning, the bipartisan group of Senators known as the "Gang of Eight" introduced the "Border Security, Economic Opportunity, and Immigration Modernization Act of 2013" immigration reform bill in the Senate. Click here to read the full text of the bill.
U.S. Citizenship and Immigration Services announced on October 24, 2016 that the fees required for most immigration applications and petitions will increase effective December 23, 2016.
Fees will increase for the first time in six years, by a weighted average of 21 percent for most applications and petitions. USCIS has said that this increase is necessary to recover the full cost of services provided by USCIS. These include the costs associated with fraud detection and national security, customer service and case processing, and providing services without charge to refugee and asylum applicants and to other customers eligible for fee waivers or exemptions.
A table summarizing current and new fees can be found at: https://www.uscis.gov/forms/our-fees
Highlights of the new fees include:
• A fee increase of $45, or 8 percent, from $595 to $640 for Form N-400, Application for Naturalization.
o USCIS will offer a reduced filing fee of $320 for naturalization applicants with family incomes greater than 150 percent and not more than 200 percent of the Federal Poverty Guidelines. For 2016, this means, for example, that a household of four with an income between $36,000 and $48,600 per year could pay the reduced fee. Those eligible may apply for this option using the new Form I-942, Request for Reduced Fee.
• The fee for Form N-600, Application for Certificate of Citizenship, and N-600K, Application for Citizenship and Issuance of Certificate Under Section 322, will increase from $550 or 600 to $1,170.
• A new fee of $3,035 is required for Form I-924A, Annual Certification of Regional Center.