Prudential Revocation of Nonimmigrant Visas

During the October 18, 2018 liaison meeting with the Department of State Visa Office (DOS), American Immigration Lawyers Association (AILA) discussed issues resulting from the prudential revocation of nonimmigrant visas. DOS confirmed that, when based on a DUI, visa revocations are effective only upon departure from the United States.

DOS has consistently maintained that prudential revocation of a nonimmigrant visa becomes effective only upon departure from the U.S. However, AILA has received several reports from members that USCIS has denied an immigration benefit, such as an application for change or extension of status, because the applicant's nonimmigrant visa was prudentially revoked. AILA has also received isolated reports of individuals being placed in removal proceedings by ICE following revocation of a nonimmigrant visa. According to DOS, actions such as this should not be happening since prudential revocation takes effect only upon departure.

DOS also advised AILA that they are engaged in an on-going dialogue with DHS components on this issue and expressed the view that DHS personnel at the headquarters level understand that, under DOS policy, prudential revocation of a nonimmigrant visa is effective upon departure from the U.S. During the meeting, DOS further reported that ICE asked for examples of situations where nonimmigrants whose visa was prudentially revoked were place in removal proceedings in order to provide additional training to the field officers involved.

Lastly, DOS indicated that in at least some cases, it becomes aware of derogatory information associated with an individual from DHS components such as ICE, USCIS, and CBP. This information may form the basis for prudential revocation of a visa. The DOS Liaison Committee is continuing to monitor this issue.

It may be helpful nevertheless to warn noncitizen employees and students of the serious immigration consequences which they may face when involved with a DUI/OUI or any arrests other than DUI/OUI.

Unlawful Presence Policy

As previously reported, USCIS published its finalized Unlawful Presence Memo regarding students and certain scholars, referred to as F, J, and M nonimmigrants. This change in USCIS policy regarding the accrual of unlawful presence for F, J, and M nonimmigrants not only has an immediate effect on students and exchange visitors and their dependents, but for those unaware of a violation of status, the resulting effect can be devastating and long lasting. 

Under the new policy, unlawful presence begins to accrue 1) the day after a status violation, if the violation occurs on or after August 9, 2018; or 2) on August 9, 2018, if the violation occurred prior to August 9, 2018.

After the student has been unlawfully present for 180 consecutive days, the student is barred from re-entering the U.S. for three years, and after being unlawfully present for a year, the student is barred from re-entry for a decade. 

180 days has now passed from August 9, 2018.  While there is pending litigation, the court has granted a temporary restraining order barring the application of the USCIS unlawful presence policy, specific only to the two individual named plaintiffs. 

Should you have concerns regarding the unlawful presence policy, please feel free to reach out and schedule a consultation with one of the attorneys (info@iandoli.com).

H-1B Discrimination Enforcement

An investment firm settled with the Department of Justice for $321K over preferential hiring practices.  On February 25, 2019, the Justice Department announced that it has reached a settlement agreement with CFA Institute (CFAI), an international association of investment professionals, headquartered in Charlottesville, Virginia. CFAI offers a global certification for Chartered Financial Analysts who pass an exam that CFAI administers annually. The settlement resolves the Department’s investigation into whether CFAI violated the anti-discrimination provision of the Immigration and Nationality Act (INA) by preferring to hire H-1B visa holders over U.S. workers when it selected CFAI exam graders from its members. This is the fifth settlement under the Civil Rights Division’s Protecting U.S. Workers Initiative, which is aimed at targeting, investigating, and taking enforcement actions against companies that discriminate against U.S. workers in favor of temporary visa workers. It is the first of those settlements to involve the H-1B visa program. 

New Employment Bill Proposed eliminating the per-country numerical limitation for employment-based immigrants

On February 7, 2019, Representatives Zoe Lofgren (D-CA), Ken Buck (R-CO), and 112 bipartisan members introduced the Fairness for High-Skilled Immigrants Act of 2019 (H.R. 1044), which would after a transition period, among other things, eliminate the per-country numerical limitation for employment-based immigrants, and increase the per-country numerical limitation for family-sponsored immigrants from 7% to 15%. A companion Senate bill (S. 386) introduced by Sen. Mike Lee (R-UT) and Sen. Kamala Harris (D-CA) has 14 co-sponsors. The bill does not change the number of family or employment-based green cards issued in a year.

This Bill proposes to eliminate or greatly reduce the backlogs for immigrants from China and India. If passed as written it ought to create long backlogs for most or all other countries and most or all immigrant classifications, unless the US increases its immigrant visa quotas overall. At present, HR 1044 is “just a bill” sitting on Capital Hill.It’s a long journey to the capital city. It’s a long wait while the bill sits in committee.So for now, HR 1044 is “just a bill.”

H-1B “Request For Evidence” Statistics

In addition to the increased processing times reported last month showing that processing times have surged by 46% over the past two fiscal years and 91% since FY2014, USCIS has released statistical data pertaining to the significant increase in USCIS’ issuance of “Requests for Evidence” and of Denials for non-immigrant petitions, including H-1B petitions, through FY2019.

USCIS Resumes Premium Processing option for some H-1B Petitions

USCIS had previously suspended Premium Processing for some H-1B petitions, the optional service to have a petition adjudicated within 15 calendar days. On February 19, 2019 USCIS announced that it will resume premium processing  for all H-1B petitions filed on or before Dec. 21, 2018.   Premium processing remains suspended for any H-1B cases filed after this date.

H-4 EAD Rescission Proposal Still Alive

As has been previously reported under the Buy American, Hire American policy, USCIS has proposed rescinding the Employment Authorization (EAD) for certain H-4 visa holders.

This proposal had been on hold until of late when Department of Homeland Security submitted on February 20, 2019, a proposed regulation, “Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization” to the Office of Management and Budget (OMB) for review.

There is no information available yet regarding what is in the proposed regulation or how the government intends to handle existing H-4 EADs. However, OMB review typically can take about a month to be completed, but could be as quick as two weeks. From that point, the following steps will need to occur:

• actual proposed regulation will be published in the Federal Register

• there will be a comment period, anticipated to be 60 days, could be 30 days

• DHS will review the public comments and develop a final regulation

• final regulation will be submitted to the Office of Management and Budget again for review

• final regulation will be published in the Federal Register with a specific effective start date – because it is economically significant, it can’t take effect earlier than 60 days from the time the final regulation is published

• anticipate a lawsuit to be filed, however, as the government is following proper notice and comment required it will be difficult to challenge revocation of the H-4 rule.

While this process is underway, applicants can continue to file new H-4 EAD applications and renew existing H-4 EADs.  For those holding H-4 EADs, it would be wise to consider alternative work visa categories, e.g. asking your employer to file a cap H-1B petition for change of status, if possible, this year.

Iandoli Desai and Cronin, P.C. is monitoring this and will provide updates as they become available.

March Visa Bulletin

Each month, the U.S. Department of State publishes the Visa Bulletin, listing all "preference" categories and states whether or not a backlog exists for each one. For March 2019, there continues to be a worldwide backlog for all applicants for the EB-1 "Priority Worker" preference category. As in previous months, the final action dates remain steady. This means that only those who filed Form I-140 on or before the date given in the Visa Bulletin are able to file for or be granted permanent resident status. The listed date for all countries other than China and India in the EB-1 category is January 1, 2018. China and India are backlogged to February 22, 2017, meaning that only those applicants whose I-140 was filed on or before that date are able to file Form I-485 to become permanent residents, or if their I-485 applications are already pending, to be approved. DOS predicts that there will be little movement in first quarter of 2019 for EB-1 China, EB-1 India and EB-1 Worldwide. Based on the information provided by USCIS, it appears that there is sufficient EB-1 demand to reach the annual limits this year, which would prevent EB-1 Worldwide from returning to “current” status on October 1, 2019, the start of the government’s new fiscal year. 

While, in the EB-2 preference category, there is currently no backlog for the worldwide numbers (except for China and India). China EB-2 numbers are backlogged to January 1, 2016 and India EB-2 is backlogged to April 9, 2009.  EB-2 India and EB-3 India according to the Final Action Date Chart are almost identical which is a significant turn of events as traditionally the EB-3 category has a much longer backlog. Some employers may want to consider “downgrading” their Indian employees from EB-2 to EB-3 in the near future if EB-3 continues to move more quickly.

These backlogs may require employers or immigrants to extend H-1B, O-1, and other nonimmigrant categories until such time that visa numbers do become available, so it is strongly advised to plan accordingly and to allow enough time so that no gap exists which could affect the ability of the applicant to work in the United States and/or travel abroad. We will be checking each month to monitor the Visa Bulletin and will provide updates.

If you have questions about planning, please feel free to reach out and schedule a consultation with one of the attorneys (info@iandoli.com).

USCIS issues new version of Form I-539

USCIS has revised Form I-539, Application to Extend/Change Nonimmigrant Status and will publish the revised form on their website at uscis.gov on March 8, 2019. Starting on March 22, 2019, USCIS will only accept the revised Form I-539 with an edition date of 02/04/19 and will reject any Form I-539 with an edition date of 12/23/16 or earlier.

The revised Form I-539 includes the following significant changes:

• Every co-applicant included on the primary applicant’s Form I-539 must submit and sign a separate Form I-539A, which will also be available on the Form I-539 webpage on March 8. Parents or guardians may sign on behalf of children under 14 or any co-applicant who is not mentally competent to sign.

• Every applicant and co-applicant must pay an $85 biometric services fee, except certain A, G, and NATO nonimmigrants as noted in the new Form I-539 Instructions to be published on March 11.

• Every applicant and co-applicant will receive a biometric services appointment notice, regardless of age, containing their individual receipt number. The biometric services appointments will be scheduled at the Application Support Center (ASC) closest to the primary applicant’s address.

USCIS estimates 373,477 individuals per year will file either an I-539 or I-539A.   

USCIS justification for biometrics are in Section 5 of Executive Order (E.O.) 13780, entitled, “Protecting the Nation from Foreign Terrorist Entry Into the United States,” which calls for the implementation of uniform screening and vetting standards for all immigration programs, including “a mechanism to ensure that applicants are who they claim to be” and “any other appropriate means for ensuring the proper collection of all information necessary for a rigorous evaluation of all grounds of inadmissibility or grounds for the denial of other immigration benefits.”

USCIS believes that the I-539 biometrics requirement will enhance national security and identity verification, and that the burden of complying with the biometrics requirement is not excessive.

USCIS will reject any Form I-539 that is missing any of the required signatures or biometrics fees, including those required for Form I-539A.

REMINDER: H-1B Deadline is Upon Us

H-1B sponsorship is offered by U. S. employers for Foreign Nationals working for those employers in Specialty Occupations which require at least a bachelor's degree (or the equivalent in education and experience).  Approved H-1B employees can work for the sponsoring employer for 3 years in the first instance. 

All cap-subject H-1B petitions (those limited by the annual national quota) must be filed with the Immigration Service during the first five business days in April 2019. 

Now is the time for employers to decide whether they will file H-1B petitions in April and for whom to initiate the process ASAP because normal preparation of the H-1B Petition can take at least 30 days during this busy season.

Please feel free to contact the attorneys of Iandoli, Desai & Cronin now with your questions and concerns.