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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:

  • Cases where fraud or misrepresentation is substantiated, and/or where an applicant abused any program related to the receipt of public benefits. USCIS will issue an NTA even if the case is denied for reasons other than fraud.
  • Criminal cases where an applicant is convicted of or charged with a criminal offense, or has committed acts that are chargeable as a criminal offense, even if the criminal conduct was not the basis for the denial or the ground of removability. USCIS may refer cases involving serious criminal activity to ICE before adjudication of an immigration benefit request pending before USCIS without issuing an NTA.
  • Cases in which USCIS denies a Form N-400, Application for Naturalization, on good moral character grounds because of a criminal offense.
  • Cases in which, upon the denial of an application or petition, an applicant is unlawfully present in the United States.

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

  • Cases involving national security concerns;
  • Cases where issuing an NTA is required by statute or regulation;
  • Temporary Protected Status (TPS) cases, except where, after applying TPS regulatory provisions, a TPS denial or withdrawal results in an individual having no other lawful immigration status;
  • DACA recipients and requestors 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.

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:

  • All STEM OPT regulatory requirements must be maintained, and
  • The staffing/placement agency cannot complete and sign the Form I-983 as an employer, unless:
    • The staffing/placement agency is an E-verified employer of the student, and
    • The staffing/placement agency provides and oversees the training.

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

AILA’s “Invisible Wall” Report Sheds Light on Trump Administration Policies to Restrict Legal Immigration

WASHINGTON, D.C. – The American Immigration Lawyers Association (AILA) today released a new report, “Deconstructing the Invisible Wall: How Policy Changes by the Trump Administration are Slowing and Restricting Legal Immigration.” Highlighted by real-life case examples, the report describes the broad array of immigration-related policy and procedural changes that have been implemented by the administration that are harming U.S. businesses, American families, and the national economy.

“For decades, our legal immigration system has shaped the America we live in today. As family members reunite, as employers find the right talent, and as colleges and universities open their doors to students from around the globe, America has reaped the benefits of the contributions of immigrants.” said Annaluisa Padilla, AILA President. She continued, “New restrictive policies implemented without any action by Congress are now blocking these longstanding opportunities. Although these policies are promoted as necessary to protect national security and the American workforce, they are shrouded in the fallacy that immigration is bad for our country when study after study shows that immigration makes our country stronger.”

Ben Johnson, AILA Executive Director added, “As a nation, we cannot afford to turn our backs on legal immigration. Immigrants living and working in the United States based on employer sponsorship, family ties, and humanitarian protection build stronger communities, drive economic growth, and enrich our national culture. The ‘invisible wall’ that is quietly and deliberately being built by the administration is harmful to America and needs to be dismantled by the courts, by Congress, and by public opinion. Our shared prosperity and our country’s proud history as a nation of immigrants depend on it.”

The policies and issues detailed in the report include:

Cap Gap Extension for F-1 student for whom H-1B was timely filed with start date of Oct. 1

There is a limit, or “cap,” on the number of individuals who can receive H-1B status every fiscal year. For purposes of the cap, each fiscal year begins on Oct. 1 of the prior calendar year. Regulations prohibit employers from filing H-1B petitions until six months before the date of actual need for the employee. This means that once USCIS reaches the cap in one fiscal year, employers must wait until April 1, which is six months before the start of the next fiscal year, before filing H-1B petitions again.

A. International Students and H-1B Status

Each year, some F-1 students seek to switch nonimmigrant classification from F-1 student status to H-1B temporary employment status after completing a program of study or post-completion optional practical training (OPT). An F-1 student’s current or prospective employer may petition USCIS for H-1B status on their behalf. If you are an M-1 student, your prospective employer may petition H-1B status on your behalf if your employment does not relate to your M-1 program of study.

B. F-1 Status Gap

Many F-1 students complete a program of study or post-completion OPT in mid-spring or early summer. Per federal regulations, after completing their program or post-completion OPT, F-1 students have only 60 days to take the steps necessary to maintain legal status or depart the United States. However, because the change to H-1B status does not occur until Oct. 1, an F-1 student previously had two or more months following the 60-day period with no legal status. Prior to 2008, in these instances, an F-1 student would have to leave the United States or apply for H-1B status at a U.S. consulate or embassy, and then seek readmission to the United States.

C. Cap Gap Extension

To deal with this situation, the U.S. Department of Homeland Security established regulations that automatically extend F-1 status and, if applicable, post-completion OPT employment authorization from April 1 to Sept. 30 for eligible F-1 students. This is called “cap gap extension”.

The cap refers to the limit on the number of individuals who can receive H-1B status every fiscal year. The gap is the period between the end of an individual’s F-1 status and the beginning of the individual’s H-1B status. The cap gap extension allows for some F-1 students to extend their F-1 status and/or authorized period of post-completion OPT until they transition to the H-1B status on Oct.

Cap Gap Extension Eligibility

This means an F-1 student filing for H1-B status on April 1 or later with a benefit start date of Oct. 1 may qualify for an extension of status and/or employment authorization. The general eligibility requirements for the cap gap extension are listed below, but please understand that your individual case may be different and you should always talk with an immigration attorney or your designated school official (DSO) about whether you would qualify for a cap gap extension. Additionally, always maintain regular contact with your potential employer to receive updates on the status of your H-1B petition, should they file one for you.

As an F-1 student, you may be eligible for an extension of your F-1 status through Sept. 30 if you meet the following requirements:

  • Your potential employer files an H-1B petition in a timely manner with USCIS with an employment start date of Oct. 1.
  • You are maintaining your F-1 status on the date your potential employer files your H-1B petition.
  • USCIS receives the H-1B petition in a timely manner and issues a receipt for it.

You may be eligible for an extension of your F-1 status and authorized period of post-completion OPT (including STEM OPT) in the following circumstances:

  • Your employer files an H-1B petition in a timely manner with USCIS with an employment start date of Oct. 1.
  • You are maintaining your F-1 status on the date your potential employer files your H-1B petition.
  • You are in an authorized period of post-completion OPT (including the STEM OPT extension) on the date your potential employer files your H-1B petition.
  • USCIS receives the H-1B petition in a timely manner and issues a receipt for it.

If you are eligible for the cap gap extension, your proof that you are still in F-1 status and that you may continue OPT (if applicable) is a note on your Form I-20, “Certificate of Eligibility of Nonimmigrant Student Status.” Obtain an updated Form I-20 from your DSO when the Cap Gap extension begins with a note indicating that your F-1 status and, if applicable, your OPT authorization will continue, typically until Sept. 30.

If your H-1B petition is denied, withdrawn, revoked or not selected, an F-1 student will have the standard 60-day grace period from the date of the rejection notice or their program or OPT end date, whichever is later, to depart the United States.

Traveling on the Cap Gap Extension

Under certain circumstances, an F-1 student on the cap gap extension may travel abroad and seek readmission to the United States. However, if an F-1 student travels abroad before USCIS approves their H-1B change of status (COS) petition, USCIS will deem the petition abandoned. The student’s F-1 status will expire per the program end date listed on their Form I-20. Meaning, if a student leaves the United States before USCIS approves their H-1B COS petition, that student will not be able to re-enter the United States as an F-1 student pursuant to the cap gap extension provisions.

Specifically, you may travel abroad and seek readmission into the United States if you are an F-1 student on the cap gap extension and meet the following criteria:

  • Your H-1B petition and request for change of status has been approved by USCIS.
  • You seek readmission before your H-1B employment begins (normally such employment begins at the start of the fiscal year, i.e., Oct. 1).
  • You are otherwise admissible (e.g., you have all proper documentation including a valid, signed Form I-20 and an F-1 visa).

You will not need to provide an Employment Authorization Document (EAD). This requirement does not apply because during the cap gap period your EAD card will have already expired, and USCIS will not renew the EAD card during the interim period.

As with all other international arrivals at a U.S. port of entry, the final decision on whether to grant admission into the United States lies with U.S. Customs and Border Protection (CBP) officers.


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 Cap Gap, other immigration law questions, or about our legal services do contact us at (+1) 888 820 4430 (toll free), or (+1) 202 600 7745, or email us at info@adhikarilaw.com