USCIS Makes Extensions More Difficult for H-1Bs

The U.S. Citizenship and Immigration Services (USCIS) has updated its guidelines on October 23, 2017 to apply the same level of scrutiny to initial and extension requests for nearly all nonimmigrant classifications filed using Form I-129, Petition for a Nonimmigrant Worker, most especially H-1B petitions.

Like before, Officers are instructed to review the application and supporting documentation thoroughly, however, now, even in circumstances where there has been no change in facts. The new guidance indicates that Officers may, “ultimately reach the same conclusion as in a prior decision, they are not compelled to do so as a default starting point as the burden of proof to establish eligibility for an immigration benefit always lies with the petitioner.” Previously, USCIS guidance directed Officers to give “deference” to prior determinations “as long as the key elements were unchanged and there was no evidence of a material error or fraud.” This change is a result of President Trump’s April 18th Buy American and Hire American Executive Order.

Immigration lawyers and petitioners should be prepared as the change in the burden of proof will likely result in an increase in requests for evidence (RFE) for extension petitions, especially H-1B extensions. If you receive a RFE and need help responding or have any questions regarding the change in the burden of proof for I-129 extensions, please contact us at 617-973-6448 to schedule a consultation with an Immigration attorney in our office right away.

 

ALERT: DIVERSITY VISA LOTTERY REOPENED, PREVIOUS ENTRIES NOT VALID

The U.S. Department of State (“DOS”) experienced a technical issue this past month on the Diversity Visa lottery and has reopened a new full entry period, starting Wednesday, October 18, 2017 at 12:00pm EST and ending Wednesday, November 22, 2017 at 12:00p EST.

Here is the official statement from DOS:

“Due to a technical issue, the DV-2019 entry period that began on October 3 has been closed. Entries submitted during October 3-10 are not valid and have been excluded from the system; they will not count as a duplicate entry. The technical issue has been resolved and a new full entry period will begin at noon, U.S. Eastern Daylight Time on Wednesday October 18, 2017 and will run until noon Eastern Standard Time on Wednesday November 22, 2017. Only entries submitted during this period will be accepted and considered for selection in the lottery. Please throw away any confirmation number or other documentation that you have if you submitted an entry during Oct. 3-10.”

All applicants who previously submitted an entry into the diversity visa lottery during the October 3-10 period must RESUBMIT their application in order to be counted for this year’s lottery. The new lottery period will close on Wednesday November 22, 2017 at 12 pm EST.  If you have any questions about the diversity visa lottery or your previous submission, or  want to set up a consultation with an Immigration Lawyer in our Boston office today, please call 617-973-6448.

Republican U.S. Senator: Immigration “Deal To Be Had”

By John Foley

I had a brief conversation with U.S. Senator Daniel Sullivan of Alaska earlier today. I asked the first term Republican about changes in U.S. immigration law and he said “there is a deal do be had on DACA (Deferred Action for Childhood Arrivals)” but it had to come from Congress and “we have to secure the border at the same time.”

Speaking at a luncheon meeting of the New England Council while he is in town for his Harvard University 30th class reunion, Sullivan said “there is the framework for an immigration deal in Congress” but he stressed “we need to keep it simple. He can’t try to solve all of the immigration issues at once.”

 

Attorney Foley and U.S. Senator Daniel Sullivan of Alaska at a New England Council Luncheon on October 13, 2017.

Sullivan, a lawyer, former U.S. Marine and Assistant Secretary of State said he “was opposed to pulling out of NAFTA (North American Free Trade Agreement)” and was in favor of entering into “a free trade agreement with Japan.”

As Assistant Secretary of State under President George W. Bush, Sullivan said his job was to convince other countries to boycott Iran. Sullivan praised President Trump’s announcement today making good on a long running threat to disavow the Iranian nuclear deal.

Sullivan called Iran “the biggest terror state in the world” and he said Iran had been “cheating on the agreement before the ink was even dry.”

#       #       #

USCIS changes direct filing addresses for Form I-129 petitions

The U.S. Citizen and Immigration Services ( USCIS) announced on October 12, 2017, a change in the direct filing addresses for certain petitioners of Form I-129, Petitioner for a Nonimmigrant Worker. These changes are important for all Petitioners  and immigration lawyers to note as beginning November 1, 2017, USCIS will reject any Form I-129s filed at the wrong service center. This could be detrimental for any time sensitive cases such extensions and amendments for H-1Bs.

All I-129s must now be filed according to the state where the company or organization’s primary office is located. Previously, all applications were filed based on the address of the beneficiary’s work location.

Additionally, Petitioners located in Florida, Georgia, North Carolina and Texas will now file Form I-129 at the California Service Center. Previously, Petitioners in these states filed their petitions at the Vermont Service Center.

There are special instructions for certain petitioners of certain visas, so it is always important to check the USCIS website for the correct address. If you have questions or your I-129 is rejected (properly or improperly), please call an immigration lawyer in our office today!

New 90-Day Rule Regarding Misrepresentation

What is the 90-Day Rule?

The U.S. Department of State (“DOS”) updated the Field Adjudicators Manual (“FAM”) on September 1, 2017 to provide guidance to U.S. consular officers in regards to the term “misrepresentation” and foreign nationals in the U.S. “who conduct themselves in a manner inconsistent with representations they made to consular officers concerning their intentions at the time of visa application or to DHS when applying for admission or for an immigration benefit.”

The FAM now includes a subsection titled “Inconsistent Conduct Within 90 Days of Entry.”9 FAM 302.9-4(B)(3) . The updated section states that: “If an alien violates or engages in conduct inconsistent with his or her nonimmigrant status within 90 days of entry… you may presume that the applicant’s representations about engaging in only status-compliant activity were willful misrepresentations of his or her intention in seeking a visa or entry.”

Individuals who have been found to have willfully misrepresented” a material fact, sought to procure or has procured a visa, other documentation or admission into the United States or other immigration benefit is inadmissible and may be barred for life from entering the U.S.” 9 FAM 302.9-4(B)(3) .

So why is this important for me?

It’s important to understand if your conduct is inconsistent with your nonimmigrant status. Working without authorization, enrolling in school when you are not allowed to, and marrying a U.S. citizen or legal permanent residence after entering in on a status with nonimmigrant intent are examples of activities inconsistent with nonimmigrant intent.

The new FAM rule indicates that there will be a presumption of willful misrepresentation based on the alien’s activity within 90 days after entry to the U.S. Any activity more than 90 days after entry into the U.S. is not considered willful misrepresentation.

The 90-day rule replaces the previous 30/60 day rule which indicates that any adjustment application filed within 30 days of entry is considered misrepresentation. Any act filed after 30 days but before 60 days generally is not considered misrepresentation, unless evidence indicates otherwise. Finally any action after 60 days, there is no presumption of misrepresentation.

With this new rule, adjustment of status applications should be careful if he or she has entered in on nonimmigrant intent visa. USCIS has not yet adopted this rule, however, there is still a risk of a finding of willful misrepresentation. If you have entered in on the Visa Waiver Program or a nonimmigrant intent visa, and are considering actions inconsistent with your status, you should immediately consult one of the immigration lawyers in our office. To schedule a consultation, please call (617) 973-6448.

Premium processing to resume for FY 2018 cap H-1B petitions

The United States Citizenship and Immigration Services (USCIS) announced on September 18, 2017 that they have resumed premium processing for all H-1B petitions subject to the cap filed this past April in the lottery.

Premium processing is service offered by USCIS at an additional fee of $1,225 for certain business nonimmigrant visas. Premium processing guarantees a fifteen (15) -day processing time. Note, it does not always result in an approval during the allotted time period. Premium processing just guarantees processing. If USCIS does not process the petition in 15 days, it will refund the premium processing fee.

USCIS will resume premium processing for all H-1B petitions as their work load lightens. Our office will continue to monitor premium processing updates and provide them to you as they become available. For any further questions about premium processing or if you would like to upgrade your H-1B cap petition to premium processing, contact one of the immigration lawyers in our office today!

TRUMP “WINDING DOWN” DACA PROGRAM

Today, September 5, 2017 Attorney General Jeff Sessions announced the Trump Administration is rescinding the Deferred Action for Childhood Arrival (DACA) program and ordered an “orderly, lawful, wind down” of DACA. Acting Secretary of the Department of Homeland Security (DHS), Elaine Duke, has already issued a memorandum rescinding the June off 2012 memorandum that created DACA and ordered a phase out of the program over the next six (6) months. The Trump Administration believes this process will limit disruption to current DACA beneficiaries while providing time for Congress to seek a legislative solution. The memo states the following:

  • All those currently enrolled in DACA will be allowed to work until their employment authorization document (EAD) expires.
  • Permits that expired by March 5, 2018 have one month to apply for their two-year renewal.
  • All new and renewal applications received by DHS before Tuesday will be reviewed on a case-by-case basis.
  • New applications received after Tuesday will not be considered.
  • No new advanced parole (I-131) documents will be approved. All pending travel document applications will be administratively closed and all associated fees will be refunded.

The DACA program was first establish in 2012 through executive order by President Obama. DACA protects nearly 800,000 individuals, known as “DREAMers” from deportation who were brought to the US by their parents and through no fault of their own. The program was never meant to be considered a legal pathway to citizenship nor an amnesty. Ninety-five percent (95%) of participants are either working or in school. The DREAMers also pay taxes, but yet are unable to receive government benefits. DREAMers contribute to our economy and society.

If you are a DREAMer, you should consult with an immigration attorney in our office immediately for possible pathways to legal solutions. We will continue to monitor the issue and update as more information becomes available.

 

Dept. of State halts issuing nonimmigrant visas to Russia.

The U.S. State Department has temporarily stopped issuing nonimmigrant visas (NIV) to Russians in response to Moscow’s decision to impose a personnel cap on the U.S. Mission as of August 23, 2017. Beginning 9/1/2017,  NIV interviews will only be conducted at the U.S. Embassy in Moscow. On their website, the U.S. Mission posted the following:

“As a result of the Russian government’s personnel cap imposed on the U.S. Mission, all nonimmigrant visa (NIV) operations across Russia will be suspended beginning August 23, 2017. Visa operations will resume on a greatly reduced scale. Beginning September 1, nonimmigrant visa interviews will be conducted only at the U.S. Embassy in Moscow. NIV interviews at the U.S. Consulates in St. Petersburg, Yekaterinburg, and Vladivostok are suspended until further notice. As of 0900 Moscow time Monday, August 21, the U.S. Mission will begin canceling current nonimmigrant visa appointments countrywide. The NIV applicants who have their interviews canceled should call the number below to reschedule their interview at the U.S. Embassy in Moscow for a later date. NIV applicants originally scheduled for an interview at the U.S. consulates in St. Petersburg, Yekaterinburg, and Vladivostok should call the number below if they wish to reschedule their interviews at the U.S. Embassy in Moscow.

The staffing changes will also affect the scheduling of some immigrant visa applicants. Affected applicants will be contacted if there is a change as to the time and date of their interview.”

We will continue to monitor the situation closely. If you or your company do not have an immigration attorney, are affected by this change in operations, and in need of an expedited interview, please contact our office to schedule a consultation (in-person or virtual).

“‘Snowball’s chance in hell’ of US immigration bill passing”

On August 2, 2017, President Trump, along with Senators Tom Cotton of Arkansas and David Perdue of Georgia introduced a new immigration bill that would take away the focus from family reunification and institute a merits-based system.

The proposal would cut legal immigration in half. The proposed system, similar to Canada and Australia, would favor granting legal permanent residency to foreign nationals who are highly skilled, highly educated and speak English, rather than based on family relationships. The points would be calculated based  on the following categories:

  • Age;
  • Education;
  • English ability;
  • Job Offer;
  • Nobel Prize;
  • Olympian; and
  • Investors.

The Irish Times contacted Attorney Foley to get his opinion on President Trump’s proposal.

“I don’t think it has a snowball’s chance in hell of becoming law,” says Boston-based immigration attorney John Foley, whose four grandparents were from Co Galway. “

For more information and to read more of Attorney Foley’s opinion, please visit https://www.irishtimes.com/life-and-style/abroad/snowball-s-chance-in-hell-of-us-immigration-bill-passing-1.3175928

Individuals may not be held solely for immigration detainers in MA!

On July 24, 2017, the Supreme Judicial Court (SJC) of Massachusetts ruled that state law does not permit state and local law enforcement to arrest and hold individuals solely for immigration detainers at the request of U.S. Immigration and Customs Enforcement (ICE). The SJC stated that “Massachusetts law provide[d] no authority for Massachusetts court officers to arrest and hold an individual solely on the basis of a Federal civil immigration detainer, beyond the time that the individual would otherwise be entitled to be released from State custody.”

In this case, Mr. Lunn, a Thai refugee from Cambodia, came to the US as a seven-month-old infant in 1985 to flee the Khmer Rouge. He has lived his entire life in the US and now has two US citizen children. On October 24, 2016, Mr. Lunn was arraigned in Boston Municipal Court for a single count of unarmed robbery. The day before his arraignment, ICE issued a civil immigration detainer against him. The detainer requested “he be held in State custody or up to two days after he would otherwise be released, in order to give officers of the department time to arrive and take him into Federal custody.”

At his arraignment, bond was set, however, Mr. Lunn was unable to post bond. He was incarcerated until his next hearing date. On February 6, 2017, Mr. Lunn’s case was dismissed for lack of prosecution because the Commonwealth was not ready for trial. At that point, Mr. Lunn had no criminal charges pending against him, and the judge or law enforcement officials declined act on Mr. Lunn’s request to be released custody as a result of the immigration detainer. As a result, Mr. Lunn remained in detention, despite the fact there were no longer any criminal charges pending against him. While Mr. Lunn was ultimately freed in June, before the case was decided, this case is important for all individuals in the Commonwealth of Massachusetts who are being held solely on immigration detainers.

If you believe you or a family member is currently being detained without any cause, call our office to set up a consultation today.