Visa Lawyer Blog

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In this post, we would like to keep our readers informed about Visa Bulletin projections for the month of October. Charles Oppenheim, Chief of the Visa Control and Reporting Division of the U.S. Department of State provides a monthly analysis of each month’s Visa Bulletin including discussion of current trends and future projections for immigrant preference categories.

Below are the highlights of those trends and projections for the month of October.

EB-1 Worldwide: It is expected that heavy demand in this category will prevent this category from becoming current in October. Previously, it was believed that EB-1 Worldwide would become current on October 1st, but this will no longer be the case according to current projections. EB-1 China and EB-1 India will have earlier final action dates than the EB-1 Worldwide category, which are expected to fall in the month of October. It is projected that the EB-1 categories will not move forward until about December or 2019.

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Beginning next year, the United States Citizenship and Immigration Services (USCIS) will launch a task force located in Los Angeles, designed to identify, detect, and prosecute individuals who have fraudulently gained United States Citizenship, for example by entering into a ‘sham’ marriage to obtain permanent residence, or engaging in other fraudulent activity, such as using a false identity to apply for permanent residence and/or naturalization.

USCIS has already begun to process of hiring lawyers and immigration officers who will review cases of individuals who have been deported, who the agency believes may potentially use a false identity to obtain permanent residence and/or citizenship. Such cases will be referred to the Department of Justice, who will then initiate the removal of individuals who have committed immigration fraud.

Of the denaturalization task force, USCIS Director L. Francis Cissna told reporters, “We finally have a process in place to get to the bottom of all these bad cases and start denaturalizing people who should not have been naturalized in the first place. What we’re looking at, when you boil it all down, is potentially a few thousand cases.”

The denaturalization task force will be funded by immigration application filing fees. The denaturalization task force will be primarily focused on targeting individuals who have used false identities to obtain immigration benefits.

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A new policy memorandum will change the way the accrual of unlawful presence is calculated for F, J, and M non-immigrant visa holders, and their dependents, beginning August 9, 2018, and onwards. The accrual of unlawful presence may lead to a bar preventing the foreign national from re-entering the United States.

In 1997 Congress began implementing a policy that governed the admissibility of individuals in F, J, and M non-immigrant visa status. Pursuant to that policy, nonimmigrants who overstayed their visa for more than 180 days could be subject to a 3-year bar, while individuals who overstayed for more than one year could be subject to the 10-year bar, for violating the terms of their visa status.

However, this class of individuals only began to accrue unlawful presence, where an immigration judge ordered the applicant excluded, deported, or removed from the United States, or where USCIS formally found a nonimmigrant status violation, while adjudicating a request for another immigration benefit, such as adjustment of status. This policy applied to all non-immigrants who were admitted or present in the United States in duration of status (D/S).

New Policy

On August 9, 2018, USCIS released a policy memorandum entitled “Accrual of Unlawful Presence and F, J, and M Nonimmigrants,” superseding the previous 1997 policy, in order to reduce the number of overstays, and implement a new policy regarding how to calculate unlawful presence for F, J, and M non-immigrants and their dependents.

Pursuant to the new policy, from August 9th onwards, “F, J, and M nonimmigrants, and their dependents, admitted or otherwise authorized to be present in the United States in duration of status (D/S) or admitted until a specific date (date certain), start accruing unlawful presence,” as follows:

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Earlier this year, the United States Citizenship and Immigration Services (USCIS) suddenly changed the regulations governing the Optional Practical Training Program (OPT). According to the USCIS website, a U.S. employer who has hired an international student under the STEM OPT program may not assign, or delegate training responsibilities to a non-employer third party such as a consulting company. This policy change has proven controversial since its sudden appearance on the USCIS website during the month of April. The policy greatly restricts the employment of international students and exposes “noncompliant” students from being found inadmissible to the United States for a 5-year period or more and makes such students subject to deportation.

Per the USCIS website:

“…a STEM OPT employer may not assign, or otherwise delegate, its training responsibilities to a non-employer third party (e.g., a client/customer of the employer, employees of the client/customer, or contractors of the client/customer). See 8 C.F.R. 214.2.(f)(10)(ii)(C)(7)(ii) and 2016 STEM OPT Final Rule (pp. 13042, 13079, 13090, 13091, 13092, 13016).”

A lawsuit filed in the U.S. District Court for the Northern District of Texas seeks to challenge this new provision on the ground that USCIS unlawfully began implementing this new policy change, in contravention of federal law.

According to the lawsuit, ITServe Alliance v. Nielsen, USCIS circumvented federal procedural rules which require public notice and the opportunity for public comment, before such a federal policy is put in place. The lawsuit alleges that since the sudden appearance of these additional terms and conditions of employment, USCIS has unlawfully issued hundreds of Requests for Evidence (RFEs) and Notices of Intent to Deny (NOIDs), without first following the formal rulemaking process mandated under the Administrative Procedure Act (APA).

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A federal judge from the United States District Court for the District of Columbia upheld a decision from the lower courts ordering the complete restoration of the Deferred Action for Childhood Arrivals (DACA) program. The new ruling gives the Trump administration a 20-day deadline to implement the complete restoration of the program or file an appeal. The District Court judge behind the order stated in his ruling that the Trump administration failed to justify its decision to end the DACA program, which protected approximately 800,000 young adults from deportation.

The Trump administration plans to appeal the ruling using the 20-day delay granted by the judge in the ruling. Today the attorney general, Jeff Sessions, issued a statement following the court decision stating that the Trump administration strongly disagrees with the decision adding that, “The executive branch’s authority to simply rescind a policy, established only by a letter from the Secretary of the Department of Homeland Security, is clearly established. The Department of Justice will take every lawful measure to vindicate the Department of Homeland Security’s lawful rescission of DACA.”

The attorney general claimed that the Obama administration “violated its duty to enforce our immigration laws” by allowing the establishment of the DACA program and the catch and release policy,” that the current administration not only had the authority to withdraw from the DACA program but had a duty to do so. The Trump administration has interpreted recent court decisions contradicting the termination of the DACA program as an improper use of judicial power.

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Return of Unselected H-1B Petitions

H-1B cap-subject petitions that were not selected in the fiscal year 2019 visa lottery have been returned to unlucky applicants. If you filed a petition between April 2 and April 6 and you did not receive a receipt notice for your application, you will be receiving your returned petitions in the mail by August 13. If you do not receive a returned petition by this date, you should contact USCIS.

Updated NTA Policy

On June 28th USCIS issued a policy memorandum providing updated guidance for the referral of cases and issuances of notices to appear (NTAs) in cases involving inadmissible and deportable aliens. The policy memorandum outlines the Department of Homeland Security’s priorities for removal as well as guidelines for referring cases and issuing NTAs.

Under the updated policy the following classes of aliens are prioritized for removal, “aliens who are removable based on criminal or security grounds, fraud or misrepresentation, and aliens subject to expedited removal,” as well as aliens “who, regardless of the basis for removal:

(a) Have been convicted of any criminal offense;

(b) Have been charged with any criminal offense that has not been resolved;

(c) Have committed acts that constitute a chargeable criminal offense;

(d) Have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency;

(e) Have abused any program related to receipt of public benefits;

(f) Are subject to a final order of removal, but have not departed; or

(g) In the judgment of an immigration officer, otherwise pose a risk to public safety or national security”

Today, USCIS announced that it is postponing implementation of this policy guidance because operational guidance has not yet been provided to immigration officers. The policy memorandum gave USCIS 30 days to implement proper protocols for NTA issuance consistent with the updated policy memorandum. We will notify our readers once we receive information about when the NTA policy will be implemented.

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If you have applied for the I-130/485 based on marriage to your US Citizen spouse, chances are you are anxiously awaiting an interview. In this post we will cover the documentation you need to provide at the I-485 interview to prove the bona fides of your relationship. The most common question clients ask is, what a bona fide marriage is and how do I prove that I have a bona fide marriage.

A bona fide marriage is one that was entered in good faith and not with an intention to deceive. A green card applicant does not have a bona fide marriage if he or she entered the marriage solely to receive an immigration benefit from USCIS. Immigration officers are trained to identify fraudulent or “sham” marriages where either party or both parties have entered the marriage simply for the green card applicant to obtain his or her permanent residence in the United States, without any sincere intention to live together in the same household or form a marital bond.  Immigration officers search for inconsistencies in any answers provided by either party to the marriage, and carefully scrutinize supporting documentation provided by the couple with the initial I-485 filing.

There are various forms of documentation that are strong evidence proving the bona fides of a relationship. Generally speaking, evidence of cohabitation, joint ownership of assets and joint responsibility for liabilities, and birth certificates of children born to the marriage are strong evidence proving that a marriage is genuine.

Cohabitation: One of the most important aspects of proving bona fide marriage is to show cohabitation—that you are living with your spouse. You can show evidence of cohabitation by providing a copy of your lease agreement showing both of your names on the lease if you are renting an apartment. If your spouse maintains ownership of a private residence, your spouse can provide a copy of the deed including both of your names, or if the green card applicant’s name is not yet on the deed, the petitioner can provide a statement as evidence of cohabitation. Other documents that can be shown to prove cohabitation include joint utility bills such for gas and electricity, water, internet bills, phone bills, etc. that contain both of your names. In addition, any mail sent to your residential address containing both of your names may be used as evidence of cohabitation. The strongest evidence showing cohabitation however is a copy of the lease agreement or deed containing both names.

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A new report by the National Foundation for American Policy (NFAP) released this month indicates that the number of H-1B denials and Requests for Evidence (RFEs) increased significantly during the fourth quarter of 2017 which began on July 1, 2017, following the implementation of Presidential Executive Order “Buy American, Hire American” in April 2017. Among other things, the Executive Order targeted the H-1B visa program calling on the Attorney General and Secretary of Homeland Security to suggest reforms to the H-1B program and “ensure that H-1B visas are awarded the most-skilled or highest-paid petition beneficiaries.” Data obtained from the United States Citizenship and Immigration Services (USCIS) indicates that “the proportion of H-1B petitions denied for foreign-born professionals” applying for H-1B visas, “increased by 41% from the 3rd to the 4th quarter of FY 2017, rising from a denial rate of 15.9% in the 3rd quarter to 22.4% in the 4th quarter.”

The NFAP also discovered that the number of requests for evidence issued during the 4th quarter of fiscal year 2017 “almost equaled the total number issued by USCIS adjudicators for the first three quarters of FY 2017 combined (63,184 vs. 63,599).”

The number of requests for evidence “more than doubled between the 3rd and 4th quarter of FY 2017, rising from 28,711 to 63,184.”

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Indian Nationals

According to the report, “USCIS adjudicators were much more likely to issue a Request for Evidence for applications for Indians than for people from other countries.” For example, “In the 4th quarter of FY 2017, 72% of H-1B cases for Indians received a Request for Evidence, compared to 61% for all other countries.” Data over the years confirms that applications filed by Indian nationals result in higher rates of denials and requests for evidence, not just for H-1B applications but also for L-1 visa applications.

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COMMON IMMIGRATION QUESTIONS AND ANSWERS

In this blog post we answer your immigration questions. Please contact our office or send us a message through Facebook if you have a question that has not been answered on our blog. For more information about the services we offer please visit our website. We proudly offer our immigration services to clients from all over the world. Our staff members are available to assist you in Spanish, Russian, Chinese (Mandarin), French, and Hebrew. Read our success stories to find out more about how our office has helped our clients achieve their immigration dreams.

Medical Exam

Q: Can I provide my medical examination at the I-485 interview or must I send it with initial filing?

A: As you may have already heard, beginning September 11, 2018, USCIS will no longer issue requests for evidence for initial filings sent with insufficient evidence, and will instead deny the application without giving an applicant the opportunity to cure the defect. All applicants filing for adjustment of status to permanent resident must submit Form I-693 to be completed by a civil surgeon. While it was previously acceptable to submit a medical examination at the I-485 interview, with the changing state of the law it is highly recommended to submit the I-693 medical examination with the initial filing to avoid a possibility of denial.

EAD

Q: I have been waiting for my employment authorization card to arrive for over 7 months now. I am feeling very desperate to work and I also want to use my employment authorization card to travel using my advance parole. Is there anything I can do to speed this process up?

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TPS Extended for Somalian Nationals

Today, July 19, 2018 the Secretary of Homeland Security, Kirstjen M. Nielsen, announced that the TPS designation for Somalia will be automatically extended for 18 additional months. Somalian nationals with TPS benefits will have the opportunity to re-register for an extension of their TPS benefits for a period of 18 months through March 17, 2020.

This automatic extension has been granted because the Secretary has determined that conditions continue to exist to support Somalia’s TPS designation. It is estimated that approximately 500 Somalian nationals have TPS benefits. This group of individuals may continue to remain in the United States on a lawful basis with work authorization benefits through March 17, 2020, so long as they re-register when the re-registration period opens.

Sanctuary states sue the federal government over withholding of government funding

Several states including New York, Connecticut, New Jersey, Washington, Massachusetts, and Virginia, are suing the federal government, challenging the Trump administration’s decision to withhold government funding for sanctuary cities who refuse to cooperate with federal agents in the detention of undocumented immigrants. According to these states, the federal government is seeking to coerce “sanctuary cities” by forcing local law enforcement officials to act as federal immigration agents.

Last year, the President signed the controversial executive order, “Enhancing Public Safety in the Interior of the United States,” requiring local law enforcement to notify federal agents regarding the release of undocumented immigrants from state detention centers, or risk losing federal government funding.

Section 9 of the Executive Order states:

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