USCIS provides details on its new policy to interview employment-based green card applicants

As we described in a prior update, USCIS announced it will begin to phase in interviews for employed-based adjustment of status ("green card") applicants effective October 1, 2017.  The USCIS press release left a lot of questions unanswered, including whether every applicant for a green card based on an employer's petition would be interviewed, whether this would apply for only applicants who file after October 1, 2017, and how USCIS would be managing these interviews in a timely manner based on current staffing levels.  Last week the Office of the Citizenship and Immigration Services Ombudsman hosted a stakeholder call and answered some questions about these new interview requirements.

The CIS Ombudsman's office clarified that cases filed before March 6, 2017 will be adjudicated by USCIS Service Centers under prior procedures, so while it is possible for those cases to receive interviews, applicants who filed before that date only have a 5-10% chance of being called for an interview, as was customary before the new interview policy took effect. For applicants who filed on or after March 6, 2017, USCIS notes it is taking an "incremental approach" to maximize the number of visas allocated this fiscal year. USCIS Field Operations Directorate Dan Renaud did not state each and every case would receive an interview, nor are any categorically exempt, as he noted both principals and derivatives will be required to appear, though USCIS will consider waiving interviews in cases where applicants are under age 14.

In the stakeholder call, the CIS Ombudsman's office described how it is undertaking training for field officers on Supplement J and how to coordinate with Department of State to manage visa numbers. The agency has instructed and trained officers not to adjudicate I-140 petitions but will assess validity of supporting documentation to ensure it was accurate, bona fide and credible. Applicants should expect to answer questions regarding admissibility and eligibility for a green card, including details about where they work, what they do, and educational background to ensure it matches information previously disclosed to USCIS. Dependents should expect questions regarding their relationship to the principal and should plan to bring evidence of the bona fide nature of their relationship to the interview, as USCIS states the purpose of these interviews is to ensure integrity of the immigration system.

Finally, the CIS Ombudsman's office touched on processing times, noting it expects employment-based adjudications to comprise approximately 17% of Field Operations workloads. In the short-term, USCIS stated it expects processing times will be affected with the greatest impact felt among family-based petitions and applications for naturalization, particularly for cases filed in the top ten busiest field offices: Atlanta, Chicago, Dallas, Houston, Los Angeles, New York, Newark, San Jose, San Francisco, and Seattle. 

Alert: USCIS reverses decades-old policy of waiving interviews for employment-based green card applicants.

U.S. Citizenship and Immigration Services ("USCIS") has announced a major change of policy that will impact employment-based green card applicants. According to its announcement dated August 28, 2017, USCIS will phase-in interviews for adjustment of status applications based on employment. Adjustment of status is the final step in green card sponsorship for individuals already in the U.S. in some form of non-immigrant status. Typically these individuals are on valid work visas when they are sponsored by their employers for green cards. During this final step, USCIS reviews the individual's personal and immigration history, conducts background checks and ensures the applicant is eligible for permanent residence in the U.S.

While it has been standard agency practice for marriage-based applicants and several other types of applicants to be called for interviews, for more than two decades USCIS has waived interviews for individuals applying for permanent residence in employment-based categories. Per this recent shift in policy, effective October 1, 2017, applicants for adjustment of status based on employment may receive notices from USCIS requesting them to appear for in-person interviews. Immigration officers conducting these interviews will likely seek to verify information provided by the applicants during the process to ensure they continue to be eligible for a green card.

It is unclear from the USCIS announcement whether this change will impact applicants who have already submitted their Forms I-485 based on employment for processing, or whether only future applicants in those categories may expect interview notices. Also, the wording of the announcement that USCIS "will begin to phase-in interviews" does not clearly indicate all applicants will be called for interviews. We will provide future updates when USCIS provides additional details on this significant change in policy. Without question, however, applicants in all green card categories (both employment and family-based) should prepare for delays in adjudication, as the local USCIS offices will see a significant increase to caseloads without an accompanying increase in staffing.

Revised Form I-485 - now 18 pages in length with expanded inadmissibility questions - becomes mandatory on August 25, 2017

On June 26, 2017 USCIS released an updated version of Form I-485, Application to Register Permanent Residence or Adjust Status. This form is commonly referred to as the "green card" application, whereby an applicant requests USCIS adjust his or her non-immigrant status to that of permanent resident or "green card" holder based on meeting certain criteria. USCIS will continue to accept current version of I-485 (revision date of 1/17/2017), totaling 6 pages, until August 24, 2017. The new version of Form I-485 (revision date of 6/26/2017) is now 18 pages long, and USCIS described as "substantially updated to reduce complexity after collecting comments from the public and stakeholders."  In addition USCIS notes the revised form has "better flow and organization of questions to make it user-friendly for both applicants and USCIS" and that "readability has significantly improved due to new spacing columns, flow, white space, and formatting."

In a teleconference on August 3, 2017, USCIS representatives specifically noted that applicants using the new version of the form no longer need to complete and submit a separate Form G-325A, as that data regarding address and employment history and family biographical information is now incorporated into Form I-485. USCIS also revised Supplement A and Supplement J to Form I-485, so applicants must ensure they are using the correct supplements (if applicable) when filing their green card applications on or after August 25, 2017.

One of the most significant differences between the current and revised Form I-485 is the length of the section regarding inadmissibility questions. The updated Form I-485 contains 80 questions, many with sub-questions, covering issues of general eligibility and inadmissibility. Applicants should review these questions carefully and consider whether working with a qualified immigration attorney may help them proceed with confidence during this important process.

USCIS will issue redesigned green cards & EADs

On USCIS recently announced a redesign for lawful permanent resident cards (commonly referred to as "green cards") and employment authorization documents ("EADs") as part of the Next Generation Secure Identification Document project. USCIS began issuing the cards on May 1, 2017 but will continue using existing card stock until depleted. Both existing and new cards are valid until the expiration date noted on the cards. Please visit the USCIS website's announcement for more information and to see images of the newly redesigned cards.

The latest on the President's Executive Order impacting non-immigrants, immigrants and U.S. businesses

On Friday January 27, 2017, President Donald J. Trump signed an Executive Order that contained sweeping changes to processing arrivals at our nation's airports and land borders of non-immigrants with a variety of work and travel visas, immigrants, lawful permanent residents, and refugees. Although styled as imposing temporary measures, it is having a dramatic impact on thousands of individuals in the U.S. and abroad, and contains language that suggests long-lasting changes to the visa application process abroad and the adjudication of immigration-related applications within the U.S. This news release summarizes the Executive Order, the litigation that has followed, and the Order's effect on individuals and employers in the coming weeks.

What is in the Executive Order?

• Major items in the Executive Order include a temporary suspension of visa issuance abroad and entry into the U.S. for individuals from 7 countries, a temporary suspension of admission of all refugees, an indefinite suspension of refugees from Syria, and suspension of the Visa Interview Waiver Program for all non-immigrant visa renewals (by citizens of all countries).
• The Order covers "immigrants and non-immigrants" and includes anyone with a valid visa (including professional work visas, student visas, and tourist visas) and returning lawful permanent residents. The Department of Homeland Security ("DHS") later released a statement indicating the entry of lawful permanent residents would be considered in "the national interest" but it did not assure their entry. Rather, the statement included the caveat "absent derogatory information indicating a serious threat to public safety and welfare, lawful permanent resident status will be a dispositive factor in our case-by-case determinations."
• Section 5 of Order directs the Secretary of State to suspend the U.S. Refugee Admissions Program ("USRAP") for 120 days, and specifically states that the entry of nationals of Syria as refugees is suspended indefinitely, with exceptions for 1) if admitting the individual would be in the national interest; 2) if the person seeking admission is from a religious minority facing religious persecution; 3) to conform to international agreement; or 4) if the person is in transit and there would be undue hardship if he/she were denied admission to the U.S.
• Section 8 of the Order requires the Secretary of State to immediately suspend the Visa Interview Waiver Program ("VIWP"), a worldwide program which allows U.S. consuls to waive in-person visa interviews for nationals of any country who have been recently vetted for security clearances and who seek a visa renewal.

What is the status of litigation regarding the Executive Order?

• Attorneys with the American Immigration Lawyers Association ("AILA") and the American Civil Liberties Union ("ACLU") have filed lawsuits on behalf of affected individuals in federal district courts in New York, Massachusetts, Virginia, and Washington state. Judges in those federal courts have issued Temporary Restraining Orders ("TROs") based on plaintiffs' likelihood of success on Constitutional grounds.
• New York's TRO provides a nationwide stay of removal preventing deportation for individuals with valid visas and approved refugee applications affected by the Executive Order.
• Massachusetts' TRO has barred federal officials from detaining or removing anyone affected by the Executive Order for 7 days (until February 4), and further instructs Customs and Border Protection ("CBP") to notify international airlines that passengers flying into Boston's Logan Airport will not be subject to the Executive Order. Airlines had been refusing to board affected individuals.
• Virginia's TRO specifically orders federal officials to allow lawyers access to "all legal permanent residents detained in Dulles International Airport."
• Washington state's TRO bars federal officials from deporting two unnamed individuals in the U.S.
• Judges in the federal district courts in these jurisdictions will hold hearings this week on these pending suits to determine whether to extend, modify or cancel the TROs. The outcomes are difficult to predict. If the judges are persuaded on the merits of the case, it is possible the TROs may be converted into preliminary injunctions while awaiting further judicial review, effectively stopping the Executive Order or parts of it from taking effect until the matter can be argued and decided by the court. Alternatively, attorneys for the Trump Administration may succeed in their argument that the President's broad discretion on matters of national security permits the actions contained in the Order. If a judge permits the TROs to expire without issuing a preliminary injunction, the Executive Order would be in effect until either a successful appeal by the immigrants to a higher court or possibly an ultimate decision by the Supreme Court.
• In addition, Massachusetts Attorney General Maura Healey announced she is filing a lawsuit today to challenge the Executive Order as unconstitutional.

What are the consequences of this Executive Order on individuals and employers?

• Foreign nationals from one of the seven countries affected by this Executive Order -- either lawful permanent residents or holders of valid visas -- should not travel. There is no guarantee these individuals will be permitted back into the U.S. after travel abroad. This could have disastrous consequences for individuals, their families, and their employers, as they risk being unable to re-enter the U.S. for at least 90 days, if not longer based on how quickly they might be able to obtain a new visa (if needed). 
• For those foreign nationals affected by this Executive Order who are currently outside the U.S., they should consider returning to the U.S. immediately via a direct flight into Boston's Logan Airport if possible before February 4 when the TRO expires.
• If foreign nationals are asked to relinquish U.S. permanent residence, the returning lawful permanent residents should be aware they have a right to request a hearing before an immigration judge. Green card holders should not sign a Form I-407 to relinquish their residence if they desire a hearing.
• Credible reports indicate that applications by nationals from these seven countries for immigration benefits with U.S. Citizenship and Immigration Services ("USCIS") such as Adjustment of Status, Petitions for Non-Immigrant Workers, Applications for Employment Authorization, etc. have been suspended. Currently, issuance of visas abroad for these foreign nationals is also suspended, and sources indicate USCIS will accept but not complete final adjudication until further notice of applications filed by or on behalf of foreign nationals from those seven countries.
• Employers should be aware of both the risk for delays with adjudication of applications and the risk travel presents for any employee needing to apply for a visa abroad. The suspension of Visa Interview Waiver Program will affect students and professional visa holders across the globe, as appointments for visa renewals in all countries will likely experience increased wait times since all visas applicants are now required to attend an in-person visa interview. There is also a greater likelihood of administrative processing (security) delays, given the additional information the Department of State will be seeking as contemplated by the Executive Order.
• In addition, the broad language in Section 3 of the  Order states that the Secretary of DHS and the Secretary of State shall conduct a review to determine the information needed from any country to adjudicate any visa, admission or other benefit under the Immigration and Nationality Act ("INA"), including adjudications. This language suggests a full revisiting of the current processing procedures, which may also result in delays.

We will bring you further updates on this and other immigration-related news in our February newsletter next week. 

New requirement for Lawful Permanent Residents traveling to Canada

Effective March 15, 2016, the Canadian Border Service Agency ("CBSA") is now requiring all U.S. lawful permanent residents ("LPRs") who are visa exempt for Canada to sign-up for Electronic Travel Authorization ("eTA") prior to any travel to or through Canada by plane. LPRs travelling via land or sea, U.S. citizens, and foreign nationals with a valid Canadian visa are not subject to this new requirement. CBSA is allowing LPRs travelling by plane between March 15, 2016 and September 29, 2016 without eTA to board flights as long as they have appropriate travel documents, such as a valid passport, and meet all requirements to enter Canada.  After that LPRs must sign up for eTA prior to any travel.
 
To apply for eTA please visit: http://www.cic.gc.ca/english/visit/eta.asp. According to CBSA, the application process costs $7 CAD and most are approved within minutes of applying.