90-Day Rule Presumption of Misrepresentation
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.
Changes to I-94 Records
Foreign visitors arriving to or departing from the U.S. receive electronic travel records, I-94 from Customs and Border Protection (CBP). Currently, I-94 numbers are 11 digits long and only contain numbers. In order to minimize program impact resulting from the depletion of numeric-only I-94 numbers and to create a long-term solution for the creation of new numbers, CBP is switching to alphanumeric I-94s beginning in May 2019. I-94 numbers will remain at 11 characters but will follow the format of 9 digits, followed by a letter in the 10th position, and a digit in the 11th position. Unexpired I-94s issued in the current numeric-only format will continue to be valid until the Admit Until Date printed on the paper I-94 and/or the date displayed on the public I-94 website at https://i94.cbp.dhs.gov/I94/#/home.
If you are a foreign national entering the U.S. temporarily, as soon as you are admitted, please log on to https://i94.cbp.dhs.gov/I94/#/recent-search, enter in your travel information, and print your new I-94 record. Please ensure that your Form I-94 is accurate: name, visa category, and expiry date. CBP can make mistakes since they are officers entering the data.
H-1B CAP Reached
USCIS received 201,011 H-1B petitions during the filing period, beginning on April 1, 2019. On April 5, 2019, USCIS announced that it had received a sufficient number of petitions projected as needed to reach the congressionally-mandated 65,000 H-1B visa regular cap for fiscal year 2020. On April 10, 2019, USCIS announced it had determined it had received a number of petitions projected to meet the 20,000 H-1B visa Master’s cap.
Sometime no later than May 20, 2019, USCIS will begin premium processing for those CAP H-1B petitioners that concurrently filed the premium processing while requesting a change of status petitions. Premium processing for all other FY2020 Cap-subject H-1B petitions, will not begin until at least June 2019.
Iandoli Desai and Cronin, P.C. will provide H-1B updates as they become available.
USCIS Resumes Premium Processing for all H-1B Petitions
USCIS announced yesterday, Monday, March 11, 2019, that it will resume "Premium Processing" for all H-1B petitions effective today, March 12, 2019.
Per USCIS, pending H-1B petitions, including those that have received a Request for Evidence from USCIS, may be converted to premium processing through the filing of a Form I-907 with the appropriate filing fee. It remains to be seen if Premium Processing will be allowed for FY 2020 H-1B cap petitions. USCIS will begin accepting FY 2020 H-1B cap petitions on April 1.
Please feel free to contact the attorneys of Iandoli, Desai & Cronin with any questions regarding Premium Processing.
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.