White House Issues Memo on Visa Overstays

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At the end of April, the White House issued a memo on combating high nonimmigrant visa overstay rates. The memo directs the secretaries of state and homeland security to find effective ways to combat what the administration says is a rampant number of overstays. They are supposed to make recommendations within 120 days of the executive memo. Such actions may include:

  • suspending or limiting entry of nationals of those countries who hold B-1 or B-2 visas with overstay rates higher than 10 percent;

  • targeted suspension of visa issuance for certain nationals;

  • limits to duration of admission;

  • develop measures required for imposing admission bonds.

However, other nations not targeted also have large numbers of overstays, but their rate is lower than 10 percent because these countries send a much higher number of travelers to the United States. Moreover, US immigration law already imposes penalties on those who stay in the United States beyond the period authorized by the Secretary of Homeland Security. These penalties include bars for reentering the United States that range from 3to 10 years. Additionally, U.S. consular officers have discretion to deny visas to applicants deemed likely to stay longer than permitted.

Injunction Issued on Unlawful Presence Policy for F-1 and J-1 Visa Holders

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The US Court grants an injunction, blocking the August 9, 2018 Policy Memorandum: “Accrual of Unlawful Presence and F, J, and M Nonimmigrants.” Several colleges had filed a lawsuit in October 2018 against the Department of Homeland Security arguing that Unlawful Presence memo was unlawful because it did not go through the required regulatory process, the policy change was arbitrary and capricious, it conflicted with the 1996 Immigration and Nationality Act that created the concept of unlawful presence, and violated the Due Process Clause of the Fifth Amendment.

The Court therefore concluded that, under the circumstances of this case, a nationwide preliminary injunction is appropriate. Defendant United States Citizenship and Immigration Services (USCIS) shall be enjoined from enforcing the policy set forth in the August 2018 Policy Memorandum, in all its applications nationwide, pending resolution of this lawsuit. With this injunction and until further order of the Court, we revert back to the previous rules which had been in operation for over 20 years. That is, in the event that USCIS formally finds a violation of F-1 status, the student would only begin accruing unlawful presence the day after the decision is made.

Temporary Protected Status (TPS) extended for several countries

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USCIS announced the automatic extension of benefits for certain countries.  Specifically, TPS beneficiaries from Sudan, Nicaragua, Haiti, and El Salvador have their EADs auto-extended through January 2, 2020 while the Ramos v. Nielsen case proceeds and the preliminary junction remains in effect, but to continue to monitor the USCIS website for further updates related to that litigation and any action that may be required between now and the end of 2019.

And on March 8, 2019, former Secretary of Homeland Security Kirstjen M. Nielsen announced her decision to extend the Temporary Protected Status for South Sudan for 18 months from 5/3/19 through 11/2/20.

L-1 Petition Processing issues at Canadian Border

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There is a reported new Customs and Border Protection (CBP) policy of refusing to process subsequent L-1 petitions at certain Ports of Entry (POEs) presented by Canadians pursuant to NAFTA. A Canadian L-1 beneficiary seeking admission at a port of entry seeks only an extension of the petition validity period and not an extension of stay. CBP thus retains jurisdiction to process these petitions under NAFTA. Renewal and extension petitions will instead need to be filed with USCIS.

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

INFOPass phased out

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In place of INFOPass Appointments, USCIS has instituted its Information Services Modernization Program (InfoMod). Under the Information Services Modernization Program, individuals are required to first contact the USCIS Contact Center and if it is determined that an applicant needs in-person assistance, personnel at the USCIS Contact Center will help schedule an appointment without the individual having to search for available timeslots. 

The Boston District Office will be one of the last district offices to move from INFOPass to InfoMod. For the Boston District, this InfoMod begins on Monday, April 15, 2019. This USCIS initiative limits the attorney’s and foreign national’s ability to seek direct assistance from USCIS.

New Data Shows H-1B Denial Rates Reaching Highest Levels

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Forbes has reported new data from the USCIS H-1B Employer Hub reveals USCIS is denying H-1B petitions at high levels as compared to previous years.  As reported: “Denial rates for H-1B petitions have increased significantly, rising from 6% in FY 2015 to 32% in the first quarter of FY 2019 for new H-1B petitions for initial employment,” according to a National Foundation for American Policy (NFAP) analysis of USCIS data in the H-1B Employer Data Hub.  

New USCIS H-1B Employer Data Hub

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On April 1, USCIS launched a new H-1B Employer Data Hub to provide information on employers petitioning for H-1B workers. The data hub provides an additional layer of transparency to the H-1B program by allowing the public to search for H-1B petitioners. The H-1B Employer Data Hub includes data from fiscal year 2009 through the first quarter of fiscal year 2019 on employers who have submitted petitions to employ H-1B nonimmigrant workers.  These include more than half a million Form I-129, Petition for a Nonimmigrant Worker, petitions for H-1B workers and other employment-based nonimmigrant workers.

USCIS will provide cumulative quarterly updates and annual releases of the data, and anticipates updating the H-1B Employer Data Hub quarterly.

April Visa Bulletin

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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 April 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 February 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 April 1, 2016 and India EB-2 is backlogged to April 12, 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).

90-Day Rule Presumption of Misrepresentation

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On January 23, 2019 and April 1, 2019, the Department of State (DOS) tweaked the 90-day rule language in the Foreign Affairs Manual (FAM) in a positive direction, by removing a reference that was thought to unfairly flag students. The helpful DOS edit was of the following item in the list at 9 FAM 302.9-4(B)(3)(g)(2), which contains examples of conduct that could lead to an automatic presumption of misrepresentation if it occurred within 90 days of admission to the United States:

  • 2017 language: “A nonimmigrant in B or F status, or any other status prohibiting immigrant intent, marrying a United States citizen or lawful permanent resident and taking up residence in the United States”

  • 2019 language: “A nonimmigrant in B status, marrying a United States citizen or lawful permanent resident and taking up residence in the United States”

DOS also revised the heading of that section, 9 FAM 302.9-4(B)(3)(g), to use conditional language more in line with an evidence-based rather than categorical determination process. The heading now reads:

  • Activities that May Indicate A Possible Violation of Status or Conduct Inconsistent with Status

But still keep in mind that the list in the FAM is not an exclusive list; it’s prefaced by, “For purposes of applying the 90-day rule, conduct that violates or is otherwise inconsistent with an alien’s nonimmigrant status includes, but is not limited to…” Nevertheless, the fact that students are no longer called out for unwarranted special scrutiny is always welcome.