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USCIS Issues Policy Memo on L-1 Employment Abroad Requirement

Thursday, November 29th, 2018 by W. Scott Railton

U.S. Citizenship and Immigration Services (USCIS) issued a policy memo this week to add clarification to the L-1 Intracompany Transfer status one year of employment abroad requirement. The memo states that:

  • The L-1 beneficiary must be physically outside the United States during the required one continuous year of employment, except for brief trips to the United States for business or pleasure; and
  • The petitioner and the beneficiary must meet all requirements, including the one year of foreign employment, at the time the petitioner files the initial L-1 petition.

The agency says the memo is a clarification of policy.  The memo describes the issue as:

 INA section 101(a)(15)(L) and 8 CFR 214.2(l)(1)(ii)(A) require that the  beneficiary work abroad for one continuous year within the three years preceding the “application for admission into the United States.” The statute is silent about those beneficiaries who have already been admitted to the United States in a different classification. However, 8 CFR 214.2(l)(3)(iii) uses a different reference point and states that the one year of foreign employment must have occurred “within the three years preceding the filing of the petition.” The difference in phrasing has led to questions about which point in time should be the appropriate reference point in determining whether the one-year foreign employment requirement has been satisfied.

 The memo instructs officers to:

Always look back three years from the date the initial L-1 petition was filed and then:

 Step 1: Determine the dates the beneficiary worked for the qualifying organization abroad.

 Step 2: Determine the lengths of any breaks in the beneficiary’s qualifying employment during the three years before the petitioner filed the L-1 petition. If the beneficiary has lawfully worked for a qualifying organization in the United States as a principal beneficiary of an employment-based nonimmigrant petition or application, adjust the three-year period accordingly.

 Step 3: Subtract the total length of all the breaks identified in Step 2 from the relevant three-year period. If the result is a continuous one-year period within the relevant three-year period, then the petitioner has met the one-year foreign employment requirement.

 Note:  The memo says that brief trips to the United States as a visitor will not stop the continuous period, but each day must be subtracted from the one year calculation.  This guidance penalizes persons based in Canada who visit the U.S. and return the same day, which is actually quite common for Canadian business owners and managers.

Note:  The memo says persons working in the U.S. for the related company in another status, such as H-1B or E-2, will be able to look back to the three years prior to their original date of admission. However, persons in F-1 Optional Practical Training or in spousal work authorization categories (e.g. L-2, E-2) will not be able to do so. In these latter cases, the three year “look back” period will run from the date of the filing of the petition.  So, an employee who starts with a U.S. company in E status two years ago would actually look back five years to determine whether the continuous period requirement is met.

As with all things USCIS these days, the memo will probably lead to even more burdensome requirements of proofs for companies that have trans-national employees and operations. We’ll keep an eye on it all, and advise companies in accordance with agency practice. Aspects of the memo may need to be challenged in court at some point, as the L is one key step towards lawful permanent residence for valued executives and managers.

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Pre-Registration for 2019 Cap-Subject H-1B In The Works

Monday, November 19th, 2018 by W. Scott Railton

The Department of Homeland Security released its list of rules that it plans to update, and the H-1B program made the list.  Specifically, DHS is actively considering whether to implement a pre-registration requirement for cap-subject H-1Bs.  Here’s the language from the DHS Fall 2018 Unified Agenda:

The Department of Homeland Security proposes to amend its regulations governing petitions filed on behalf of H-1B beneficiaries who may be counted under section 214(g)(1)(A) of the Immigration and Nationality Act (INA) (“H-1B regular cap”) or under section 214(g)(5)(C) of the INA (“H-1B master’s cap”). This rule proposes to establish an electronic registration program for petitions subject to numerical limitations for the H-1B nonimmigrant classification. This action is being considered because the demand for H-1B specialty occupation workers by U.S. employers has often exceeded the numerical limitation. This rule is intended to allow U.S. Citizenship and Immigration Services (USCIS) to more efficiently manage the intake and selection process for these H-1B petitions.

Time is getting tight for the U.S. Government to make this work for the April 1st, 2019 lottery.  A Notice of Rulemaking rule will first need to be published in the Federal Register, whereupon the public will be afforded a period of time to comment. The matter is currently pending review at the Office of Management and Budget.

I like the idea of pre-registration, but we’ll have to wait and see what this exactly looks like. Ideally, I think a system which allows employers to apply for a lottery spot before making an actual application can save businesses all sorts of money.  It is a waste of government and business expenditure to prepare full applications, only to have the government return about half of them due to not being selected in the lottery. The Government proposed a similar rule in 2011, but the rule was never implemented. Unfortunately, the Administration has consistently made the H-1B process harder for employers, without regard to cost or sometimes established precedent and law, and so any change to the H-1B program has to be anticipated with skepticism.

In any case, we are recommending that employers start the H-1B process earlier this year, to account for any changes the Administration may implement. We’ll stay up to date on this, and advise accordingly.

 

 

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DACA Continues For Some, As Litigation Proceeds

Wednesday, November 14th, 2018 by W. Scott Railton

“What is the status of DACA?,” I am asked. Here it is:

In brief, the Trump Administration took steps to cancel the program on September 5th, 2017, of its own volition and ostensibly due to pressure from certain states litigating the program’s legality. Several lawsuits immediately sought to enjoin (halt) the Administration, and have been successful to date.  The program continues during the litigation, under restricted terms. New applications are not accepted, but extensions and reinstatments may be filed. Full details farther below, from USCIS.

As to the on-going litigation:

The Ninth Circuit case–which is the jurisdiction of the West Coast–is called Regents of the University of California v. Department of Homeland Security.  On November 8th, 2018, the Ninth Circuit upheld the preliminary injunction of the Administration’s order to cancel the program, finding that the Plaintiffs are likely to prevail on the claim that the cancellation of the program is arbitrary and capricious. Similar cases are pending in the Second Circuit (Battala Vidal v. Nielsen) and the D.C. Circuit (NAACP v. Trump).

On November 6th, 2018, the U.S. Department of Justice made a formal request to the U.S. Supreme Court that it take all these cases on certiorari, and resolve the issues surrounding DACA.  Typically, the Supreme Court will take a case where there is a disagreement between the Circuits, but so far, the cases are still pending in the Circuits, albeit with the temporary injunction upheld. It is unusual for the DOJ to request an earlier hearing, and it would be unusual for the Supreme Court to do so, but the rules do allow it do so in exceptional circumstances.  The Supreme Court can be a bit mysterious in the way it decides as an institution to hear or case or not. However, it is likely they will consider the matter of hearing the cases early when the justice meet in the new year, and if they decide to do so, we will likely hear on January 7th, 2018.  If I had to guess, I think the Supreme Court will let the Circuits handle the matter in typical fashion.

In the meantime, persons who have been granted DACA may apply for extensions. This is not a guarantee that the extension will be granted, as each case is decided on its merits. Additionally, persons who have previously had DACA but have had it lapse may apply again. More information on applying is available at www.uscis.gov , and I’ve pasted USCIS’s advisory below. Various clinics are also available to assist with the applications, through organizations such as Northwest Rights Immigrant Project. Additional sources of information include the NWIRP, the National Immigration Law Center, and the Immigrant Legal Resource Center.

Below is USCIS’s statement regarding DACA, based on current litigation:

Feb. 14, 2018, Update:  USCIS is not accepting requests from individuals who have never before been granted deferred action under DACA. Due to federal court orders on Jan. 9, 2018 and Feb. 13, 2018, USCIS has resumed accepting requests to renew a grant of deferred action under DACA. The scope of the Feb. 13 preliminary injunction issued in the Eastern District of New York is the same as the Jan. 9 preliminary injunction issued in the Northern District of California. Unless otherwise provided in this guidance, the DACA policy will be operated on the terms in place before it was rescinded on Sept. 5, 2017, until further notice.

Individuals who were previously granted deferred action under DACA may request renewal by filing Form I-821D (PDF), Form I-765 (PDF), and Form I-765 Worksheet (PDF), with the appropriate fee or approved fee exemption request, at the USCIS designated filing location, and in accordance with the instructions to the Form I-821D (PDF) and Form I-765 (PDF). USCIS is not accepting requests from individuals who have never before been granted deferred action under DACA. USCIS will not accept or approve advance parole requests from DACA recipients.

If you previously received DACA and your DACA expired on or after Sept. 5, 2016, you may still file your DACA request as a renewal request. Please list the date your prior DACA ended in the appropriate box on Part 1 of the Form I-821D.

If you previously received DACA and your DACA expired before Sept. 5, 2016, or your most recent DACA grant was previously terminated, you cannot request DACA as a renewal (because renewal requests typically must be submitted within one year of the expiration date of your last period of deferred action approved under DACA), but you may nonetheless file a new initial DACA request in accordance with the Form I-821D and Form I-765 instructions. To assist USCIS with reviewing your DACA request for acceptance, if you are filing a new initial DACA request because your DACA expired before Sept. 5, 2016, or because it was terminated at any time, please list the date your prior DACA expired or was terminated on Part 1 of the Form I-821D, if available.

Deferred action is a discretionary determination to defer a removal action of an individual as an act of prosecutorial discretion. Further, deferred action under DACA does not confer legal status upon an individual and may be terminated at any time, with or without a Notice of Intent to Terminate, at DHS’s discretion. DACA requests will be adjudicated under the guidelines set forth in the June 15, 2012 DACA memo (PDF)

 

 

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Update On J-1 Waivers for Physicians In Washington State

Friday, November 9th, 2018 by W. Scott Railton

Historically, Washington State has been slower to fill its 30 allocated J-1 waiver physician spots than many other states.  As of this writing, the Washington State Health Department has published that it has received 17 applications for J waivers so far, with 9 applications fully approved.  The State has already received 10 specialist petitions, and 5 of those are fully approved.

What next?

  • We are presently in a timeframe where primary care applications for health professional shortage areas are the only ones which have a guaranteed spot.
  • On January 15th, the State will open up the application window for primary care FLEX spots—positions which are not in a health professional shortage area but which serve an underserved population.
  • On April 1st, the agency will approve additional Specialist applications. As the agency has not approved all 10 Specialist petitions received yet, it may still be worthwhile to inquire on handling of Specialist applications in the interim, in case one or more of those received so far is non-qualifying.

J-1 waiver applications require that the sponsor show that at least 15% of the total patient visits are for Medicaid or other low income patients.  Employers have to be able to document at least six months of unsuccessful recruitment in the last year for the position.  Employers also must have a sliding fee scale, which is posted for patients, and there are specific employer-physician contract requirements.

Facilities and physicians interested in seeking a Conrad J-1 wavier based on the Washington State program should not tarry.  It is hard to predict how fast the remaining spots will go.  Last year, a few spots remained until the very end of the year.  If recollection serves me, the year before, the agency received 34 applications for 30 slots, well in advance of the end of the year.  Oregon last year filled up long before the end of the year.

We have a great deal of experience helping facilities and physicians navigate the Conrad waiver process, all the way to permanent residence. It is meaningful and rewarding work, which we care greatly about. Feel free to contact us if you’d like to schedule a consultation.

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L-1 Pilot Program Follow-Up Meeting With USCIS and USCBP

Friday, October 12th, 2018 by W. Scott Railton

I attended a follow-up engagement meeting today with USCIS and CBP at the Blaine Peace Arch, concerning the L-1 Pilot Program.  Here is a brief summary of the meeting.

The L-1 Intracompany Transfer visa/status is a work authorization granted to certain Executives, Managers, and employees with “Specialized Knowledge.” It is an immigration tool used for multi-national businesses, to move key personnel around. The L-1 status is a part of Chapter 16 of NAFTA and the new USMCA agreement, and is also authorized by the Immigration and Nationality Act.

The L-1 Pilot Program was commenced on April 30, 2018, and terminates at the end of October. The basic goal of the program is to promote uniformity of adjudication of petitions by first routing them to USCIS’s California Service Center. Canadians have the option of choosing to submit these applications in person at a port of entry, or by mail/courier to USCIS.

15 submissions in 6 months; 80 Percent RFE Rate

At the meeting, USCIS reported they have had 15 submissions over the past six months. Ordinarily, they were getting at least that many a week at the Blaine crossings, and I think many more. Conclusion: nobody is using the program. This must be a conscious decision by Canadian businesses and their attorneys. Indeed, attorney comments during the meeting said as much. “People are voting with their feet,” one said.

USCIS reported that they issued 12 Requests for Additional Evidence (RFE) on the 15 cases. So far, they’ve approved seven cases and denied three, with the other five pending. They “outright” approved three cases, without RFEs.

RFEs are very common for USCIS right now. Even so, an 80 percent RFE rate is very high, even for USCIS. RFEs mean substantial extra expense for employers (thousands of dollars sometimes), as well as lengthy delays (months), with no certainty of eventual approval. Such is immigration these days.

Pilot cases submitted to USCIS seem to be handled similarly to Premium Processing cases at the Service Center. Premium Processing is the program where employers pay $1410 for 15 day initial adjudication. In this case, petitioners did not have to pay this expense, but of course the process is automatically slower than the same day adjudication some Canadian companies are used to. Most of the cases have been receipted within days—the agency reported two or three days. When an RFE is issued, typically the Petitioner is given three months or so to respond.

Attorneys seemed universally opposed to the program. East Coast attorneys, calling in on the phone, expressly said they would not like to see this program move their way. Representatives of both agencies suggested they might try expanding the program to the Vancouver Airport or other ports of entry, but no decision has been made.

The meeting itself was well organized, with video and phone lines open for all, and both agencies seemed to genuinely want feedback, offering many opportunities for comment.

Concerns with Process, Concerns with Adjudication

From my point of view, there are two larger issues at play here: process and adjudication.

From a process standpoint, Canadian businesses receive no benefit from taking away the option of on-the-spot adjudication. There are times when this is very valuable, such as when an important employee of a Canadian company needs to work in the U.S. fast (e.g. this weekend). Also, there is a benefit to being able to make your case to a live officer, rather than have everything done on paper. Frankly, USCIS has gotten too far into the weeds with adjudications, abandoning the preponderance of evidence standard applicable to all nonimmigrant work authorization petitions.

On the adjudication side, the agencies are pushing for “uniformity of adjudication.” They say that USCIS has the expertise for adjudicating L-1 petitions, which is true at some level. However, border adjudications are nothing new, and they have worked for Canadian/U.S. businesses for decades. Uniformity is also a myth–USCIS adjudicators handle matters very differently, from cubicle to cubicle.

Perhaps the biggest concern for Canadian businesses in this niche is USCIS’s extensive use and abuse of the RFE. Their templates are many pages long, and employers can spend the same amount of time they might in preparing an environmental impact statement, just trying to explain the technical aspects of one of their experts and why they are “specialized” or how they qualify as a “manager”. The RFEs are bogging down USCIS too, which has record wait times on many very-ordinary types of cases.

What Next?

Speakers at the meeting said they will take the feedback from the meeting, confer, and make next decisions.  They could close the program, but I think I suspect the Pilot Program is not done yet. I think CBP would like to punt adjudications to USCIS, and will keep looking for ways to do so.  I would like to see the agency embrace this responsibility as part of their northern border mission, because its good for business and U.S.-Canadian relations.  That may be wishful thinking, I’m afraid. My concern over the next few years is that the U.S. government may try to move all immigration benefits adjudication to USCIS, including TNs.  We’ll keep an eye on it.

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CBP Addresses Canada’s Legalization Of Marijuana And Crossing The U.S. Border

Wednesday, October 10th, 2018 by W. Scott Railton

U.S. Customs and Border Protection published a statement regarding Canada’s legalization of marijuana and crossing the border, which is available at its website.

Most notable:  CBP affirmatively says that persons working in the legalized industry in Canada, without attachment to the U.S. industry, will still be admissible.  See the paragraph I’ve highlighted in bold italics below. Prior public statements by CBP leadership strongly suggested this would not be the case, which seemed counter to the plain language of the Immigration and Nationality Act. I personally questioned such a policy in a story published last month by the Dow Jones’ publication, Market Watch.

I think CBP has it right now, as far as the Immigration and Nationality Act goes. There are many finer legal points though that come into play, when making actual inadmissibility decisions.

Perhaps most importantly, there still is a real need for Congress to take a longer look at the cannabis issue overall, since over half the states have a form of legalization. Until they do, the border will continue to be a hard line on cannabis, drawn between states and provinces which have legalized the substance.

Here is the CBP’s Statement in full, updated on 10/9/18:

CBP Statement on Canada’s Legalization of Marijuana and Crossing the Border
Release Date:
September 21, 2018

UPDATED: 10/09/2018

U.S. Customs and Border Protection enforces the laws of the United States and U.S. laws will not change following Canada’s legalization of marijuana. Requirements for international travelers wishing to enter the United States are governed by and conducted in accordance with U.S. Federal Law, which supersedes state laws. Although medical and recreational marijuana may be legal in some U.S. States and Canada, the sale, possession, production and distribution of marijuana or the facilitation of the aforementioned remain illegal under U.S. Federal Law. Consequently, crossing the border or arriving at a U.S. port of entry in violation of this law may result in denied admission, seizure, fines, and apprehension.

CBP officers are thoroughly trained on admissibility factors and the Immigration and Nationality Act, which broadly governs the admissibility of travelers into the United States. Determinations about admissibility and whether any regulatory or criminal enforcement is appropriate are made by a CBP officer based on the facts and circumstances known to the officer at the time.

Generally, any arriving alien who is determined to be a drug abuser or addict, or who is convicted of, admits having committed, or admits committing, acts which constitute the essential elements of a violation of (or an attempt or conspiracy to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance, is inadmissible to the United States.

A Canadian citizen working in or facilitating the proliferation of the legal marijuana industry in Canada, coming to the U.S. for reasons unrelated to the marijuana industry will generally be admissible to the U.S. however, if a traveler is found to be coming to the U.S. for reason related to the marijuana industry, they may be deemed inadmissible.

CBP officers are the nation’s first line of defense in preventing the illegal importation of narcotics, including marijuana. U.S. federal law prohibits the importation of marijuana and CBP officers will continue to enforce that law.

U.S. Customs and Border Protection is the unified border agency within the Department of Homeland Security charged with the management, control and protection of our nation’s borders at and between the official ports of entry. CBP is charged with keeping terrorists and terrorist weapons out of the country while enforcing hundreds of U.S. laws.
Last modified:
October 9, 2018

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The TN Status and the New US-Mexico-Canada Agreement

Monday, October 1st, 2018 by W. Scott Railton

The United States, Canada, and Mexico have announced that they have reached an agreement to supplant the longstanding North American Free Trade Agreement (NAFTA).  The new agreement will be entitled the U.S.-Mexico-Canada Agreement (USMCA).  For now, the TN professional status will remain largely unchanged.

The immigration provisions of the new Agreement are housed in Chapter 16, as was the case with NAFTA.  For side by comparison, click on the links in the last sentence.

The USMCA’s Chapter 16 adopts much of the old NAFTA language for “Business Visitors,” “Traders and Investors,” “Intra-Company Transfers,” and “Professionals.” “Professionals” is what we commonly refer to as the TN category, and the issue I will highlight here.

Here’s one new thing:  Article 1602, Paragraph 3, of the USMCA includes language not in the NAFTA, leaving the door open for future restrictions via regulation by any Party:

3. Nothing in this Agreement shall prevent a Party from applying measures to regulate the entry of natural persons of another Party into, or their temporary stay in, its territory, including those measures necessary to protect the integrity of, and to ensure the orderly movement of natural persons across, its borders, provided that those measures are not applied in a manner as to nullify or impair the benefits accruing to any Party under this Chapter.

Side by side, the lists of Professionals in Appendix 1602.D.1 of the USMCA and Appendix 160-3.D.1 of NAFTA are basically the same.  However, it is not a complete copy and paste:

  • The USMCA Appendix includes an additional Footonote 7 to the Medical Laboratory Technologist/Medical Technologist category, which states that “A businessperson in this cateogry must be seeking temporary entry to perform in a laboratory chemical, biological, hematological, immunologic, microscopic, or bacteriological tests and analyses for the prevention of disease.”
  • The USMCA Appendix also includes an additional Footnote 8 to the Biologist category, which states, “In accordance with the NAFTA 1994 Commission decision of October 7, 2003, the term “Biologist” included the profession Plant Pathologist.” This Footnote obviously reflects the 2003 adjustment to the list.
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The new Article 1606 covers a “Working Group,” which meets once per year to consider administration of the Chapter. The Working Group was already in existence with NAFTA, but the USMCA adds an additional review responsibility for the Group, concerning technologies:
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(e) Issues of common interest related to temporary entry of business persons, such as the use of technologies related to processing of applications, that can be further explored among the Parties in other fora.
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Many thought any agreement would include numeric restrictions for TNs.  Not present. In fact, the original restrictions on Mexico’s TNs are stricken from the Appendix 1603. The countries are expected to collect and share data on entries, as per the Article 1605 Provision of Information requirements.
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The Agreement also does not include a revision of the TN list. Experts seem to agree that the list of eligible occupations needs to be updated. Many new professions have come into existence over the last 25 years.  The Information Technology sector is full of new occupations, such as web developers, database administrators, architects, and software engineers.  Medical science and health care professions have similarly evolved–nurse practitioners are filling a vital role for hospitals, and sometimes are denied TNs for being more than a Registered Nurse. Nonetheless, any attempt at re-doing the occupation codes may have led to a more restrictive outcome, with less categories, numeric restrictions, and tighter qualifications. The U.S. has been limiting immigration in all other areas, and such would’ve reasonably be expected here.
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One question going forward is what do we call the TN now?  TN is short for Treaty NAFTA, but with the change of name to the trilateral treaty, perhaps the work authorization category may change in name too. The White House has been intent on doing away with NAFTA, and so perhaps the TN name might do the same way, in time.
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My impression is the negotiators had their reasons on each side to avoid a major rewrite on Chapter 16.  Other trade issues probably carried more weight, and fast advancing deadlines set by the White House may have ended up leaving this chapter for later. The U.S. Office of Trade Representative held hearings on the mobility issues, and so it is not like the issues were overlooked.
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My greatest concern for the next year is that the U.S. may continue to use regulation to alter the TN category further. The Administration has been very effective at limiting immigration through restrictive regulation and categorical interpretations. One possibility is that DHS may try to move TN adjudications away from the border and to USCIS Service Centers. They are already testing this idea with L adjudications, but the process only seems to slow things down for businesses.  I attended a meeting at the Blaine Peace Arch earlier this year concerning the L-1 Pilot Program where the USCIS Director speculated on the possibility of TN adjudications at the Service Centers. Also, as with all immigration applications, I expect the cost of TN applications to rise for employers, as the government paperwork becomes more demanding.
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This is very fresh news, and so other developments and interpretations may arise.  We will continue to follow this closely.
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Cap Gap Work Authorization Ends On October 1st for H-1B Applicants

Saturday, September 29th, 2018 by W. Scott Railton

USCIS sent out a reminder today that students in F-1 status, waiting on their H-1B adjudications, are no longer permitted to work on October 1st based on the cap gap rules.  Employers need to be alert to this as well, due to work authorization rules.  Working without authorization can risk accrual of unlawful presence, which is another can of worms. This is s yet another unfortunate consequence of the agency’s delays in adjudicating petitions this year.

Here is the alert:

F-1 students who have an H-1B petition that remains pending on Oct. 1, 2018, risk accruing unlawful presence if they continue to work on or after Oct. 1 (unless otherwise authorized to continue employment), as their “cap-gap” work authorization is only valid through Sept. 30. Due to increased demand for immigration benefits, resulting in higher caseloads as well as a significant surge in premium processing requests, USCIS may not be able to adjudicate H-1B change of status petitions for all F-1 students by Oct. 1.

USCIS regulations allow an F-1 student who is the beneficiary of a timely filed H-1B cap-subject petition requesting a change of status to H-1B on Oct. 1, to have his or her F-1 status and any current employment authorization extended through Sept. 30. This is referred to as filling the “cap-gap”, meaning the regulations provide a way of filling the “gap” between the end of F-1 status and the beginning of H-1B status that might otherwise occur. The “cap-gap” period starts when an F-1 student’s status and work authorization expire, and they are extended through Sept. 30, with Oct. 1 being the requested start date of their H-1B employment, unless otherwise terminated or the H-1B petition is rejected or denied prior to Oct. 1.

While the temporary suspension of premium processing of certain types of H-1B petitions has allowed USCIS to allocate additional resources to prioritize the adjudication of these cap-gap cases, if a cap-gap H-1B petition remains pending on or after Oct. 1, the F-1 student is no longer authorized to work under the cap-gap regulations. However, the F-1 student generally may remain in the United States while the change of status petition is pending without accruing unlawful presence, provided they do not work without authorization. If an F-1 student with a pending change of status petition has work authorization (such as an I-765 with valid dates) that extends past Sept. 30, they may continue to work as authorized.

USCIS is committed to adjudicating all petitions, applications, and requests fairly and efficiently on a case-by-case basis to determine if they meet all standards required under applicable laws, regulations, and policies.

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USCIS to Begin Implementing New Policy Memorandum on Notices to Appear on October 1st

Friday, September 28th, 2018 by W. Scott Railton

USCIS will begin to implement a new policy memorandum for issuing Notices to Appear on October 1st.  The memorandum outlines criteria for issuing Notices to Appear, which is the document for initiating immigration court proceedings. The agency will issue Notices to Appear after certain denials of many of the application types presented. These will include Adjustments of Status, Naturalization, and Temporary Protected Status applications, to name a few.  The importance of seeking counsel before filing applications is all the more heightened by this memo, particularly if there is any issue at all to consider.

The memo says that USCIS will issue Notices to Appear in many cases. The focus will be on a number of different serious criminal matters where persons are “under investigation for, has been arrested for (without disposition), or has been convicted.  The offenses include serious offenses like murder, rape, sexual abuse of a minor, and firearms offenses. The list also includes “human rights violators, known or suspected street gang members, or Interpol hits.”

Additionally, persons who make misrepresentations or “abused any program related to the receipt of public benefits” may be noted to appear.

Naturalization applicants who are denied on good moral character grounds, based on an underlying offense, “provided they are removable,” will be noted to appear.

The agency policy memo includes many other bases, many of which sound reasonable, but the language of the memo leaves much open for interpretation and negative discretionary actions by the agency.  Notably, the current immigration court case backlog is over 700,000 cases, and this will just add to that backlog.  Unless these measures are adequately funded, they threaten all normal immigration processing timelines, which are even now considerably delayed.

Here’s the agency’s press release:

U.S. Citizenship and Immigration Services (USCIS) will begin implementing the June 28 Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens Policy Memorandum (PM) (PDF, 140 KB) on Oct. 1, 2018. USCIS will take an incremental approach to implement this memo.

An NTA is a document that instructs an individual to appear before an immigration judge. This is the first step in starting removal proceedings. Starting Oct. 1, 2018, USCIS may issue NTAs on denied status-impacting applications, including but not limited to, Form I-485, Application to Register Permanent Residence or Adjust Status, and Form I-539, Application to Extend/Change Nonimmigrant Status.

USCIS will send denial letters for status-impacting applications that ensures benefit seekers are provided adequate notice when an application for a benefit is denied. If applicants are no longer in a period of authorized stay, and do not depart the United States, USCIS may issue an NTA. USCIS will provide details on how applicants can review information regarding their period of authorized stay, check travel compliance, or validate departure from the United States.

The June 2018 NTA Policy Memo will not be implemented with respect to employment-based petitions and humanitarian applications and petitions at this time. Existing guidance for these case types will remain in effect.

USCIS will continue to prioritize cases of individuals with criminal records, fraud, or national security concerns. There has been no change to the current processes for issuing NTAs on these case types, and USCIS will continue to use its discretion in issuing NTAs for these cases.

USCIS is holding a public teleconference on Thursday, Sept. 27 from 2 – 3 p.m. Eastern to provide an overview of the PM and respond to pre-submitted questions. The teleconference will conclude with a question and answer session, as time permits. Additional information is available on the Upcoming National Engagements page.

USCIS will provide updates and information on the implementation of this PM on the new Notice to Appear Policy Memorandum page.

 

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USCIS Processing Times Are Getting Longer

Tuesday, September 25th, 2018 by W. Scott Railton

Longer waits, longer applications, and higher fees are the unfortunate reality for persons and businesses seeking immigration benefits with U.S. Citizenship and Immigration Services.  Here in Washington State, the USCIS Field Office in Seattle says it is taking 15 to 16.5 months to adjudicte a naturalization application.  The application itself costs $725, has 18 pages of instructions, and 20 pages of application to complete.  USCIS Field Offices appear to be swamped with additional vetting responsibilities, with no additional funding, despite the high application costs.

Similarly, the Service Centers have long waits for many important benefits.  Work authorization documents are taking 4.5 to 6.5 months to issue out of the National Benefits Center.  It used to be that the agency was required to issue a work authorization document within 90 days by regulation, but since that regulation was stricken, wait times have increased. This can be really hard on adjustment application couples, who need their significant other to be earning income to pay the bills.

H-1B applications have really slowed down too, now taking 5.5 to 7.5 months, according to the California Service Center.  We’ve heard of longer adjudications. The agency has noted the issue as well, and has suspended much of its premium processing program in order to try to get a handle on things.  It seems likely that the increase in Requests for Evidence and Denials has added to the agency’s workload.  H-1B applications include thousands of dollars in filing fees, but that doesn’t seem to be relevant.

Last week I participated in a teleconference with Congressional staffers and discussed the issue of delays.  It is a universal concern in immigration law right now, and hopefully something can be done. As part of that call, I put together the following list of published adjudication timeframes:

Timeframes for initial adjudications:

Local Field Offices:

I-485s

(Seattle):             10 to 19.5 months

(Yakima)              9.5 to 21.5 months

(Spokane)           9.5 to 21.5 months

Application fee:                $1225

Form length:                      18 pages; 42 pages of instructions, not including parole and work authorization applications

N-400s

(Seattle):                              15 to 16.5 months

(Yakima)                              3.5 to 5.5 months

(Spokane)                           11.5 to 18 months

Application Fee:               $725

Form length:                      20 pages; 18 pages of instructions.

 

National Benefits Center:

I-765                      4.5 to 6.5 months for adjustments;   5 to 7 months at NBC for all others

I-131                      4.5 to 6.5 months at NBC

 

California Service Center (I-129s)

H-1B:                     5.5 to 7.5 months

Ls:                           4 to 6 months

Rs:                          4 to 7 months

 

Nebraska Service Center (I-140s)

Extraordinary ability (E11)                                         5 Months to 7 Months

Outstanding professor or researcher (E12)                 5 Months to 7 Months

Multinational executive or manager (E13)                  9.5 Months to 12 Months

Advanced degree or exceptional ability (E21)           5 Months to 7 Months

Skilled worker or professional (E31; E32)                  5 Months to 7 Months

Unskilled worker (EW3)                                             7 Months to 9.5 Months

Advanced degree/ (NIW)                                           5 Months to 7 Months

Schedule A Nurses                                                     8 Months to 10 Months

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