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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

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 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

Texas Service Center to Begin Processing Form I-129 for L Visas and Vermont Service Center will no longer process L visa petitions

February 12, 2018, Washington, D.C. The Texas Service Center (TSC) of USCIS will begin processing certain Form I-129, Petition for a Nonimmigrant Worker petitions for L nonimmigrant classification, also known as L visas. The TSC will share this workload with the California Service Center to balance workloads and to provide flexibility as USCIS works towards improving processing times and efficiency.

The Vermont Service Center will no longer process any new Form I‑129 petitions requesting L nonimmigrant classification. Petitioners requesting an L nonimmigrant classification should file their Form I-129 at the address indicated on the Direct Filing Addresses for Form I-129, Petition for a Nonimmigrant Worker page.

Starting March 12, 2018, USCIS may reject any of these applications that are filed at the wrong service center.

Now the Premium Processing is Available for all types of H-1Bs

WASHINGTON, D.C. — U.S. Citizenship and Immigration Services (USCIS) resumed premium processing today for all H-1B visa extension of stay petitions. Premium processing is now available for all types of H-1B petitions.

H-1B visas provide skilled workers for a wide range ofspecialty occupations, including information technology, engineering, and mathematics. When a petitioner requests the agency’s premium processing service, USCIS guarantees a 15-calendar day processing time. If that time is not met, the agency will refund the petitioner’s premium processing service fee and continue with expedited processing of the application.

In addition to resumption of premium processing for H-1B visa extension of stay petitions, USCIS had previously resumed premium processing for H-1B petitionssubject to the annual cap, petitionsfiled on behalf of physicians under the Conrad 30 waiver program, as well as interested government agency waivers and certain H-1B petitions that are not subject to the cap.


Do contact us at (+1) 202 496 1295 or (+1) 888 820 4430 (toll free), or email us at contact@adhikarilaw.com you want to learn more about this change, want to upgrade regular processing to premium processing, has general questions about H-1B program, or need any other legal services. 

DHS announced to wind down Deferred Action for Childhood Arrivals (DACA) program

Washington, DC. On September 5, 2017, the Department of Homeland Security (DHS) initiated the wind down of the program known as Deferred Action for Childhood Arrivals (DACA). On June 29, the attorneys general of Texas and several other states sent a letter to U.S. Attorney General Jeff Sessions asserting that the DACA program is unlawful for the same reasons stated in the Fifth Circuit and district court opinions regarding an expansion of the DACA program and the now-rescinded program known as Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA).  Yesterday, Attorney General Jeff Sessions sent a letter to Acting Secretary of DHS Elaine Duke articulating his legal determination that DACA “was effectuated by the previous administration through executive action, without proper statutory authority and with no established end-date, after Congress’ repeated rejection of proposed legislation that would have accomplished a similar result.” Attorney General Sessions recommended that the Department wind down the program in an efficient and orderly fashion, and his office reviewed the terms of DHS action.

The program had been started on June 15, 2012 by the Secretary of Homeland Security, allowing certain undocumented immigrants to apply for work authorization, deferred action from deportation, and advance parole (permitting travel internationally). An individual granted deferred action under DACA was considered to be lawfully present for the duration of the granted period, but was not granted lawful status or excused for any previous or subsequent period of unlawful presence.

What This Means for DACA Recipients

DACA Beneficiaries With Valid EADs

Current DACA beneficiaries will retain their privileges until current expiration, unless terminated or revoked. DACA benefits are typically valid for two years from the date of issuance.

Initial DACA Applications and EAD

Applications for DACA protection and associated EAD cards received after September 5, 2017, will be rejected. Those filed and accepted by USCIS as of September 5, 2017, will be determined on a case-by-case basis.

DACA Beneficiaries Applying for EAD Extensions

Current DACA beneficiaries whose EAD cards will expire between September 5, 2017, and March 5, 2018, may apply for an EAD extension by October 5, 2017. These applications will be renewed on a case-by-case basis. All requests to renew DACA and associated applications for EADs after October 5, 2017 will be rejected.

Advance Parole

Effective September 5, 2017, USCIS will no longer accept any new Form I-131 Applications for Travel Document (Advance Parole) to permit international travel for DACA beneficiaries. Pending applications will be terminated and fees refunded. Those with currently valid Advance Parole documents will generally retain the benefit until the expiration date of the Advance Parole; however, U.S. Customs and Border Protection (CBP) has the ultimate authority to determine admissibility at the border.

Protections After Expiration

The Department of Homeland Security (DHS) claims that once an individual’s DACA benefits expire, his or her case will not be referred to U.S. Immigration and Customs Enforcement (ICE) for enforcement purposes, unless the requestor meets the criteria for the issuance of a Notice To Appear or a referral to ICE as set forth in USCIS’s Notice to Appear guidance.

What This Means for Employers

Employees who are DACA beneficiaries remain work-authorized throughout the validity period of their acceptable work authorization, and employers should rely on their I-9 compliance records and completed I-9 form expiration dates to confirm employees’ work authorization expiration dates.

An employer should confirm timely reverification of an employee’s expiring work authorization under the Form I-9 rules but should not treat DACA beneficiaries differently during the employment reverification process.

Employers must continue to accept employees’ valid work authorization documents (and may not restrict an employee’s choice of acceptable documents), and should not take any unlawful adverse action, such as termination of employment, against these employees. Taking premature action based on the September 5 announcement is risky is not recommended and employers should not identify or treat DACA employees differently unless further legislative or judicial action is taken.

Further reading can be found in the Memorandum on Rescission Of Deferred Action For Childhood Arrivals (DACA) and the DHS Frequently Asked Questions: Rescission Of Deferred Action For Childhood Arrivals (DACA) webpage.

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If you want to learn more about changes in DACA program or need our legal services for the compliance with DHS guidance in winding down DACA program and I-9 compliance do contact us at (+1) 202 496 1295 or (+1) 888 820 4430 (toll free), or email us at info@adhikarilaw.com

Notice to DHS Contractors and Subcontractors on Compliance with E-Verify

Washington DC, Jul 19, 2017. DHS article on FedBizOps summarizes E-Verify requirements. The Department of Homeland Security expects employers to abide by the immigration laws of the United States and to employ in the United States only individuals who are eligible to work. The Federal Acquisition Regulation (FAR) clause 52.222-54 Employment Eligibility Verification, requires federal contractors and subcontractors to use the Department of Homeland Security, United States Citizenship and Immigration Services’ employment eligibility verification program (E-Verify) as the means for verifying employment eligibility of certain employees working under covered federal contracts. For more details go to: https://www.uscis.gov/e-verify/federal-contractors.
Background/Notes: The President’s Executive Order 13788 Buy American and Hire American, issued on April 18, 2017, directs the Secretary of Homeland Security to issue new guidance and take other steps to protect the interests of United States workers in the administration of our immigration system. Accordingly, the Department of Homeland Security is issuing this Special Notice reminding contractors and subcontractors subject to the FAR, and with contracts containing the clause 52.222-54, Employment Eligibility Verification, that they are required to enroll in and use E- Verify. This FAR clause has been effective since September 8, 2009 and implements electronic employment eligibility verification requirement to strengthen long-standing Executive branch policy to only contract with federal contractors and subcontractors who employ individuals in the United States who are authorized to work in the United States. The Department of Homeland Security will rigorously promote and validate enrollment in and use of E-Verify by contractors and subcontractors in the coming months.

Complying with the E-Verify FAR Requirement to Verify Employees:
Employers must verify all new hires, whether the new hire is assigned to a covered contract or not, as well as existing employees assigned to a covered contract. Note that some employees are exempt from the employment verification process, including Form I-9, under the E-Verify federal contractor rule. See the guide For Federal Contractors at https://www.uscis.gov/e-verify/federal-contractors. Employers may also choose to verify their entire workforce (all new hires, all existing employees assigned to the contract and all existing non-exempt employees throughout the entire company). Covered federal contractors are required to create an E-Verify case to confirm the identity and employment eligibility of each new employee within 3 days of hiring a new employee and each existing employees assigned to the contract within 30 calendar days. Covered federal contractors who elect to verify their entire workforce must create an E-Verify case to confirm the identity and employment eligibility of all employees within 180 calendar days.

Who is Affected by the E-Verify Federal Contractor Rule?

Federal Contractors:
 Only contracts that include FAR Clause 52.222-54 are affected and federal contracting officials include the clause in all solicitations and contracts that exceed the simplified acquisition threshold of $150,000, except those that are –
(a) Only for work that will be performed outside the United States;
(b) Only for a period of performance of less than 120 days; or
(c) Only for-
(1) Commercially available off-the-shelf (COTS) items;
(2) Items that would be COTS items, but for minor modifications;
(3) Items that would be COTS items if they were not bulk cargo; or
(4) Commercial services that are-
(i) Part of the purchase of a COTS item (or an item that would be a COTS item, but for minor modifications);
(ii) Performed by the COTS provider; and
(iii) Are normally provided for that COTS item.
Contact your contracting officer for questions regarding contract compliance.

Federal Subcontractors: Federal contractors are required to include the E-Verify requirements of FAR Clause 52.222-54 from their prime contract in each subcontract that –
(a) Is for construction or commercial or noncommercial services (except for commercial services that are part of the purchase of a COTS item (or an item that would be a COTS item, but for minor modifications), performed by the COTS provider, and are normally provided for that COTS item);
(b) Has a value of more than $3,500; and
(c) Includes work performed in the United States.

245 Murray Drive
Building 410
Mail Stop 3600
Washington, District of Columbia 20528
United States
E-Verify Customer Support
E-Verify@dhs.gov
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If you want to learn more about E-Verify program or need our legal services for the compliance with e-Verify and I-9 do contact us at (+1) 202 496 1295 or (+1) 888 820 4430 (toll free), or email us at info@adhikarilaw.com

USCIS offers special immigration services to Those Affected by Hurricane Harvey

Washington, DC. USCIS has made public announcement that it offers special immigration services that may help people affected by unforeseen circumstances, including disasters such as Hurricane Harvey.

USCIS makes following measures available on case-by-case basis and upon making special request:

  • Changing a nonimmigrant status or extending a nonimmigrant stay for an individual currently in the United States. Failure to apply for the extension or change before expiration of your authorized period of admission may be excused if the delay was due to extraordinary circumstances beyond your control;
  • Re-parole of individuals previously granted parole by USCIS;
  • Expedited processing of advance parole requests;
  • Expedited adjudication of requests for off-campus employment authorization for F-1 students experiencing severe economic hardship;
  • Expedited adjudication of employment authorization applications, where appropriate;
  • Consideration of fee waivers due to an inability to pay;
  • Assistance for those who received a Request for Evidence or a Notice of Intent to Deny but were unable to submit evidence or otherwise respond in a timely manner;
  • Assistance if you were unable to appear for a scheduled interview with USCIS;
  • Expedited replacement of lost or damaged immigration or travel documents issued by USCIS, such as a Permanent Resident Card (Green Card); and
  • Rescheduling a biometrics appointment.

Note: When making a request, please explain how the impact of Hurricane Harvey created a need for the requested relief.

If your InfoPass appointment was affected by this storm, you can reschedule your appointment online or by calling National Customer Service Center of USCIS at 800-375-5283 (TDD for the deaf and hard of hearing: 800-767-1833).

All Form I-9, Employment Eligibility Verification, requirements remain in place. Those affected by Hurricane Harvey should review Form I-9 acceptable documents and receipts for more information on how to complete the Form I-9 if an employee’s documents are lost, stolen, or damaged.


For more information about how we could provide legal assistance to individuals affected by unforeseen circumstances such as Harvey on a pro bono (free) basis or with a reduced fee, please email us at info@adhikarilaw.com or call us at 202-496-1295