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House Committee passed FY 2019 DHS Appropriations bill that included elimination of per country caps for all employment-based immigrant visa categories

Washington, D.C. Adhikari Law PLLC sees a silver lining in a much needed reform in skilled immigration programs under Immigration and Nationality Act of 1965. On July 25th the House Appropriations Committee passed the Fiscal Year 2019 Department of Homeland Security (DHS) Appropriations bill that included an amendment from Kansas Congressman Kevin Yoder that proposes to eliminate per country caps for all employment-based immigrant visa categories (EB-1, EB-2, EB-4, EB-4 and EB-5). 
According to sources, the chances of the Homeland Security funding bill, which includes the Yoder amendment, of passing before the new fiscal year is very low.
 
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Adhikari Law PLLC is closely following this bill and other bill in Congress, and will update readers as these pass through both chambers of the Congress.  If you want to learn more about this and other immigration law topics do contact us at (+1) 888 820 4430 (toll free), or (+1) 202 459 2105, or email us at info@adhikarilaw.com
Note: This is a blog post by Adhikari Law PLLC and should NOT be construed as a legal advice. 

USCIS Issues Revised Final Guidance on Unlawful Presence for Students and Exchange Visitors

Washington, D.C. U.S. Citizenship and Immigration Services (USCIS) has published a revised final Policy Memorandum related to unlawful presence after considering feedback received during a 30-day public comment period that ended June 11, 2018. F, J, or M nonimmigrants who failed to maintain their nonimmigrant status before August 9, 2018 start accruing unlawful presence based on that failure on August 9, 2018, unless the non-national (“alien”) had already started accruing unlawful presence.

An F, J, or M nonimmigrant begins accruing unlawful presence, due to a failure to maintain his or her status on or after August 9, 2018, on the earliest of any of the following:

  • The day after the F, J, or M nonimmigrant no longer pursues the course of study or the authorized activity, or the day after he or she engages in an unauthorized activity;
  • The day after completing the course of study or program (including any authorized practical training plus any authorized grace period, as outlined in 8 CFR 214.2);
  • The day after the Form I-94 expires, if the F, J, or M nonimmigrant was admitted for a date certain; or
  • The day after an immigration judge orders the alien excluded, deported, or removed (whether or not the decision is appealed).

Please do note, F-1 students are eligible for Practical Training (OPT/CPT/STEM OPT) under F-1 visa status if the eligibility criteria for practical training is met. F, J, M students also have 60 days and 30 days grace period, respectively, after completion of study program or after the completion of Practical Training in case of F-1.

Under the revised final policy memorandum, effective Aug. 9, 2018, F and M nonimmigrants who fall out of status and timely file for reinstatement of that status will have their accrual of unlawful presence suspended while their application is pending.

On May 10, 2018, USCIS had posted a policy memorandum changing the way the agency calculates unlawful presence for those who were in student (F nonimmigrant), exchange visitor (J nonimmigrant), or vocational student (M nonimmigrant) status. The revised final memorandum published today supersedes that memorandum and describes the rules for counting unlawful presence for F and M nonimmigrants with timely-filed or approved reinstatement applications, as well as for J nonimmigrants who were reinstated by the Department of State.

Foreign students who are no longer properly enrolled in school are violating the terms of their student visa would incur unlawful presence ground of inadmissibility. For purposes of counting unlawful presence, a timely reinstatement application for F or M status is one where the student has not been out of status for more than five months at the time of filing. Under the revised final policy memorandum, the accrual of unlawful presence is suspended when the F or M nonimmigrant files a reinstatement application within the five month window and while the application is pending with USCIS.

If the reinstatement application is denied, the accrual of unlawful presence resumes on the day after the denial. It is incumbent on the nonimmigrant to voluntarily leave the United States to avoid accruing more unlawful presence that could result in later inadmissibility under section 212(a)(9) of the Immigration and Nationality Act. Whether or not the application for reinstatement is timely-filed, an F, J, or M nonimmigrant whose application for reinstatement is ultimately approved will generally not accrue unlawful presence while out of status.

The Department of State administers the J-1 exchange visitor program, to include reinstatement requests. If the Department of State approves the reinstatement application of a J nonimmigrant, the individual will generally not accrue unlawful presence from the time the J nonimmigrant fell out of status from the time he or she was reinstated.

An F-2, J-2, or M-2 nonimmigrant’s period of stay authorized ends when the F-1, J-1, or M-1 nonimmigrant’s period of stay authorized ends. In addition, an F-2, J-2, or M-2 nonimmigrant’s period of stay authorized may end due to the F-2, J2, or M-2 nonimmigrant dependent’s own conduct or circumstances.

 

In addition, the revised final policy memorandum references to the Board of Immigration Appeals (BIA) issuing orders of removal in the first instance.


Note: This is a blog post by Adhikari Law PLLC and should NOT be construed as a legal advice. 

If you want to learn more about this and other immigration law topics do contact us at (+1) 888 820 4430 (toll free), or (+1) 202 459 2105, or email us at info@adhikarilaw.com

News flash: USCIS updates Policy Memorandum which provides guidance to USCIS adjudicators regarding their discretion to deny an application, petition without first issuing a RFE or NOID

Washington, D.C. U.S. Citizenship and Immigration Services (USCIS) today posted a policy memorandum (PM) that provides guidance to USCIS adjudicators regarding their discretion to deny an application, petition, or request without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) when required initial evidence was not submitted or the evidence of record fails to establish eligibility.

This updated guidance will be effective from September 11, 2018 and applies to all applications, petitions, and requests, except for Deferred Action for Childhood Arrivals (DACA) adjudications, received after that date.

In its release, USCIS claims “for too long, our immigration system has been bogged down with frivolous or merit-less claims that slow down processing for everyone, including legitimate petitioners. Through this long overdue policy change, USCIS is restoring full discretion to our immigration officers to deny incomplete and ineligible applications and petitions submitted for immigration benefits,”. The release further notes, “Doing so will discourage frivolous filings and skeletal applications used to game the system, ensure our resources are not wasted, and ultimately improve our agency’s ability to efficiently and fairly adjudicate requests for immigration benefits in full accordance with our laws.”  The policy implemented in this guidance restores to the adjudicator full discretion to deny applications, petitions, and requests without first issuing an RFE or a NOID, when appropriate.

The 2013 PM addressed policies for the issuance of RFEs and NOIDs when the evidence submitted at the time of filing did not establish eligibility. In practice, the 2013 PM limited denials without RFEs or NOIDs to statutory denials by providing that RFEs should be issued unless there was “no possibility” of approval. This “no possibility” policy limited the application of an adjudicator’s discretion.

USCIS will continue issuing statutory denials when appropriate without first issuing an RFE or NOID when the applicant, petitioner, or requestor has no legal basis for the benefit/request sought, or submits a request for a benefit or relief under a program that has been terminated.
If all required initial evidence is not submitted with the benefit request, USCIS, in its discretion, may deny the benefit request for failure to establish eligibility based on lack of required initial evidence. Examples of filings that may be denied without sending an RFE or NOID include, but are not limited to:

  • Waiver applications submitted with  little to no supporting evidence; or
  • Cases where the regulations, the statute, or form instructions require the submission of an official document or other form of evidence establishing eligibility at the time of filing and there is no such submission. For example, an Affidavit of Support (Form I-864), if required, was not submitted with an Application to Register Permanent Residence or Adjust Status (Form I-485).

This PM updates the USCIS Adjudicator’s Field Manual and contains an “additional considerations” section. The policy in this “additional considerations” section is not new, and is nearly identical to the policy contained in the superseded 2013 PM.


Note: This is a blog post by Adhikari Law PLLC and should NOT be construed as a legal advice. 

If you want to learn more about this and other immigration law topics do contact us at (+1) 888 820 4430 (toll free), or (+1) 202 459 2105, or email us at info@adhikarilaw.com

USCIS Updates Notice to Appear Policy Guidance to Support DHS Enforcement Priorities

Washington, DC. U.S. Citizenship and Immigration Services issued updated Guidance today that aligns its policy for issuing Form I-862, Notice to Appear, with the immigration enforcement priorities of the Department of Homeland Security.

A Notice to Appear (NTA) is a document given to an alien (non-nationals) that instructs them to appear before an immigration judge on a certain date. The issuance of an NTA commences removal proceedings against the alien. Under the new guidance, USCIS officers will now issue an NTA for a wider range of cases where the individual is removable and there is evidence of fraud, criminal activity, or where an applicant is denied an immigration benefit and is unlawfully present in the United States.

Deferred Action for Childhood Arrivals (DACA) recipients and requestors are exempted from this updated guidance when: (1) processing an initial or renewal DACA request or DACA-related benefit request; or (2) processing a DACA recipient for possible termination of DACA. As explained in the concurrently issued DACA-specific guidance, USCIS will continue to apply the 2011 NTA guidance to these cases. USCIS will also continue to follow the existing DACA information-sharing policy regarding any information provided by a DACA requestor in a DACA request or DACA-related benefit request.

USCIS, along with U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP), has legal authority under current immigration laws to issue NTAs. This Policy Memorandum updates the guidelines USCIS officers use to determine when to refer a case to ICE or to issue an NTA. The revised policy generally requires USCIS to issue an NTA in the following categories of cases in which the individual is removable:

The revised policy does not change the USCIS policy for issuing an NTA in the following categories:

Under separate policy guidance (PDF, 77 KB) issued concurrently, USCIS officers will continue to apply PM 602-0050, Revised Guidance for the Referral of Cases and Issuance of Notices to Appear (PDF, 77 KB) (NTAs) in Cases Involving Inadmissible and Removable Aliens, dated November 7, 2011, to the issuance of NTAs and Referrals to ICE for DACA recipients and requestors.

 


Note: This is a blog post by Adhikari Law PLLC and should NOT be construed as a legal advice. 

If you want to learn more about this and other immigration law topics do contact us at (+1) 888 820 4430 (toll free), or (+1) 202 459 2105, or email us at info@adhikarilaw.com

Practice Alert: STEM OPT at a Third-Party Location by a consulting company

In April 2018, USCIS updated the page on its website relating to Optional Practical Training Extension for STEM Students (STEM OPT) which seems to indicate its view that F-1 students in the STEM OPT program are not permitted to engage in OPT at third-party locations. Of particular concern is the following statement: “For instance, the training experience may not take place at the place of business or worksite of the employer’s clients or customers because ICE would lack authority to visit such sites.” However, this is directly contradicted by both the preamble of the STEM OPT Regulation and ICE FAQs on the matter. According to the Preamble of the March 11, 2016 STEM OPT Final Rule:

There are several aspects of the STEM OPT extension that do not make it apt for certain types of arrangements, including multiple employer arrangements, sole proprietorships, employment through ”temp” agencies, employment through consulting firm arrangements that provide labor for hire, and other relationships that do not constitute a bona fide employer-employee relationship…. Accordingly, DHS clarifies that students cannot qualify for STEM OPT extensions unless they will be bona fide employees of the employer signing the Training Plan, and the employer that signs the Training Plan must be the same entity that employs the student and provides the practical training experience.

In addition, in response to an FAQ relating to its policy on placement agencies, ICE states:

STEM OPT students are permitted to use staffing/placement agencies to find a training opportunity. However:

At the USCIS Open Forum at the 2018 American Immigration Lawyers Association (AILA) Annual Conference, USCIS reiterated its concern that if the training takes place at a third-party site, the “employer” who signed the training plan would not be the one to supervise the student.

Nevertheless, it appears that the change in language on the USCIS website is overreaching, and that a STEM OPT employee could be placed at the worksite of an employer’s client or customer, as long as the STEM OPT student is a bona fide employee of the employer signing the training plan, and the employer that signs the training plan provides the practical training experience. In addition, “staffing agencies” may provide a training opportunity as long as they are an E-Verify employer and they directly employ the student and oversee the student’s training.

AILA has received reports (as recent as June 2018) of third party STEM placements being approved after responding to a request for evidence (RFE) where the bona fide employer/employee relationship was thoroughly documented. At the same time, AILA has received reports of RFEs on change of status to H-1B petitions seeking “a detailed explanation and evidence why the beneficiary is working at a different location than the STEM employer’s place of business.”

Lastly, one should note that if the new unlawful presence memo becomes effective on its terms on August 9, 2018, there is a risk that a finding that the employer was not properly supervising the student’s training could lead to a status violation determination, which would result in the retroactive accrual of unlawful presence.

 

(Source: American Immigration Lawyers Association (AILA) )


Note: This is a blog post by Adhikari Law PLLC and should NOT be construed as a legal advice. 

If you want to learn more about this and other immigration law topics do contact us at (+1) 888 820 4430 (toll free), or (+1) 202 459 2105, or email us at info@adhikarilaw.com

DHS Proposes to Remove the International Entrepreneur Rule (IER) which availed a temporary work authorization and lawful stay for foreign-born entrepreneurs

WASHINGTON, DC – The Department of Homeland Security (DHS) is proposing a rule to end a program that allowed certain foreign entrepreneurs to be considered for parole to temporarily come to the United States to develop and build start-up businesses here, known as the International Entrepreneur Rule (IER Final Rule). Earlier a court decision had vacated USCIS’ final rule to delay the effective date. The current administration took the position that IER provided an unlimited number of international entrepreneurs a new avenue to apply for parole, enter the U.S., and use American investments to establish and grow start-up businesses. On Jan. 25, 2017, President Trump issued Executive Order 13767, Border Security and Immigration Enforcement Improvements, which requires the Secretary of Homeland Security to ensure that parole authority is exercised only on a case-by-case basis, and only when an individual demonstrates urgent humanitarian reasons or a significant public benefit due to the parole.

DHS is now proposing to eliminate the IE Final Rule because the department under the current administration believes that it represents an overly broad interpretation of parole authority, lacks sufficient protections for U.S. workers and investors, and is not the appropriate vehicle for attracting and retaining international entrepreneurs.

By statute, DHS has discretionary authority to parole individuals into the United States temporarily, on a case-by-case basis, for urgent humanitarian reasons or significant public benefit.

Despite this roll back from current administration in retaining foreign-born entrepreneurs, the Immigration and Nationality Act provides for visa classifications that enable certain entrepreneurs to start businesses and work in the United States, such as the E-2 nonimmigrant classificationL-1 (New Business) and the EB-5 immigrant classification.

To learn more about visa and immigration options for start-up companies athttps://adhikarilaw.com/visa-for-start-up-companies/ or

Call us at 888-820-4430 email at info@adhikarilaw.com

USCIS has completed data entry for all fiscal year 2019 H-1B cap-subject petitions

Washington, D.C. USCIS has completed data entry for all fiscal year 2019 H-1B cap-subject petitions selected in our computer-generated random selection process. USCIS will now begin returning all H-1B cap-subject petitions that were not selected. Due to the high volume of filings, USCIS cannot provide a definite time frame for returning unselected petitions. USCIS asks petitioners not to inquire about the status of their cap-subject petitions until they receive a receipt notice or an unselected petition is returned. USCIS will issue an announcement once all the unselected petitions have been returned.

Additionally, USCIS may transfer some Form I-129 H-1B cap subject petitions between the Vermont Service Center and the California Service Center to balance the distribution of cap cases. If your case is transferred, you will receive notification in the mail. After receiving the notification, please send all future correspondence to the center processing your petition.


Note: This is a blog post by Adhikari Law PLLC and should NOT be construed as a legal advice. 

If you want to learn more about H-1B, other immigration topics do contact us at (+1) 888 820 4430 (toll free), or (+1) 202 529 6946, or email us at info@adhikarilaw.com

USCIS to Begin Using More Secure Mail Delivery Service (signature confirmation)

April 27, 2018, Adhikari Law, WASHINGTON, D.C. U.S. Citizenship and Immigration Services (USCIS) announced today that the agency will begin phasing in use of the U.S. Postal Service’s (USPS) Signature Confirmation Restricted Delivery service to mail Green Cards and other secure documents beginning April 30, 2018.

The first phase will affect documents that need to be re-mailed because they have been returned as non-deliverable. These documents include Permanent Resident Cards (also called Green Cards), Employment Authorization Cards (EADs), and Travel Booklets. Applicants who have changed mailing addresses during the course of the application process are more likely to have their secure documents sent with the new delivery method, which USCIS will expand to all secure documents in the future.

As part of the new delivery method, applicants must present identification to sign for their documents upon delivery. They also have the option to designate an agent to sign on their behalf by completing the Postal Service’s PS Form 3801, Standing Delivery Order (PDF) or PS Form 3801-A, Agreement by a Hotel, Apartment House, or the Like (PDF). Applicants can sign up for USPS Informed Delivery to receive delivery status notifications. Applicants will also have the option to arrange for pickup at a post office at a convenient date and time by going to the USPS website and selecting “hold for pickup.”

If your USPS tracking information shows your package was delivered but you have not received it, contact your local post office immediately. Remember, USCIS will mail your card or travel document to the address you provided on your application (unless you request to mail it to your representative on Form G-28, Notice of Entry or Appearance as Attorney or Accredited Representative).

Signature Confirmation Restricted Delivery increases the security, integrity, and efficiency of document delivery. The Signature Confirmation Restricted Delivery process provides better tracking and accuracy of delivery information, improving service to applicants.

Information on how to track delivery of secure documents is available on the USCIS website.


Note: This is a blog post by Adhikari Law PLLC and should NOT be construed as a legal advice. 

If you want to learn more about this topic, have other immigration law questions, or any other legal questions do contact us at (+1) 888 820 4430 (toll free), or (+1) 202 529 6946, or email us at info@adhikarilaw.com

TPS designation for Nepal is to end on June 24, 2019 instead of June 24, 2018

April 26, 2018. WASHINGTON. The Secretary of Homeland Security (DHS) Kirstjen M. Nielsen has determined that termination of the Temporary Protected Status (TPS) designation for Nepal. The TPS designation for Nepal will end on June 24, 2019 instead of June 24, 2018. It is advised those in TPS to seek other immigration benefits timely before TPS designation ends.

In its release DHS states that to allow for an orderly transition, the effective date of the termination of TPS for Nepal will be delayed 12 months to provide time for individuals with TPS to arrange for their departure or to seek an alternative lawful immigration status in the United States, if eligible. Nepali citizens in the United States who benefited from TPS may still receive other protections under our immigration system for which they are eligible.

The 12 months will also provide time for Nepal to prepare for the return and reintegration of its citizens. During this timeframe, DHS will work with the Department of State and the Government of Nepal to help educate relevant stakeholders and facilitate an orderly transition. In addition to materials posted online, DHS components will participate in outreach activities such as teleconferences, town halls and roundtables to ensure that affected populations have a full and accurate understanding of their rights and obligations.

Nepali citizens with current TPS registrations will be required to re-register for TPS and apply for Employment Authorization Documents in order to legally work in the United States until the termination of Nepal’s TPS designation becomes effective June 24, 2019.  Further details about this termination for TPS, including the re-registration period, will appear in a Federal Register notice. Nepali TPS beneficiaries should not submit re-registration applications until the re-registration period is announced through the Federal Register notice.


Note: This is a blog post by Adhikari Law PLLC and should NOT be construed as a legal advice. 

If you want to learn more about TPS, other immigration benefits and options for TPS holders or other immigration law questions do contact us at (+1) 888 820 4430 (toll free), or (+1) 202 529 6946, or email us at info@adhikarilaw.com