Immigration Blog

by David Tuteur David Tuteur No Comments

WORK AUTHORIZATION AND F-1 “CAP-GAP” STATUS

The United States Citizenship & Immigration Service (USCIS) recently issued a reminder to F-1 students with pending H-1B petitions that work authorization for those students in “cap-gap” status is valid only through September 30, 2018. Any student in cap-gap status with an H-1B petition that remains pending on October 1, 2018 should not work on or after this date.  As USCIS  explained, an F-1 student with a pending change of status petition who has work authorization (such as an I-765 with valid dates) that extends past Sep. 30th may continue to work as authorized.

Under the regulations, an F-1 student who is the beneficiary of an H-1B petition subject to the cap, and who is requesting a change of status to H-1B on Oct. 1st, may have his or her F-1 status and current employment authorization extended through Sep. 30th. Known as the “cap-gap,” this mechanism allows for the “gap” to be filled between the expiration of a student’s F-1 status and the beginning of his or her H-1B status.

As USCIS previously announced, premium processing is temporarily unavailable for cap-subject H-1B petitions. The suspensions are anticipated to last through February 2019.

If you have question regarding how this information may affect your situation, call us today to schedule a consultation with an experienced immigration attorney.

by David Tuteur David Tuteur No Comments

USCIS ISSUES NEW POLICY MEMO REGARDING UNLAWFUL PRESENCE AND F, J, and M NONIMMIGRANTS

On August 9, 2018, USCIS issued a new policy memorandum revising the determination as to when individuals who enter the United States on certain nonimmigrant visas (F, J, and M) begin to accrue “unlawful presence.”

Generally, academic students (F), exchange visitors (J), and vocational students (M) are admitted to the U.S. for the “duration of their status,” which allows them to remain in the U.S. as long as they maintain their nonimmigrant status. This is usually accomplished by staying engaged in a full course of study or exchange program, not working without authorization, and abiding by all terms of their visa.

Previously, individuals admitted to the U.S. on F, J, and M nonimmigrant visas did not accrue unlawful presence until the day after their Form I-94 expired (if an expiration date was given), or until a USCIS officer or immigration judge determined that they violated their nonimmigrant status.

The new policy memorandum changes the way in which unlawful presence is determined for F, J, and M nonimmigrants.

  • F, J, or M nonimmigrants who failed to maintain nonimmigrant status before August 9, 2018 will begin to accrue unlawful presence as of August 9, 2018, unless they had already started accruing unlawful presence before that date.
  • F, J, or M nonimmigrants who fail to maintain nonimmigrant status on or after August 9, 2018 will being to accrue unlawful presence:
    • The day after they no longer pursue the course of study or authorized activity, or the day after they engage in unauthorized activity
    • The day after completing their course of study or program, plus any authorized grace period
    • The day after their Form I-94 expires, if admitted until a certain date
    • The day after an immigration judge orders the nonimmigrant removed

The accrual of unlawful presence can have serious immigration consequences. Someone who accrues more than 180 days of unlawful presence and then departs the U.S. may be barred from returning to the U.S. for three years, and a person who accrues a year or more of unlawful presence may be barred from returning for ten years.

Under this new policy memorandum, F, J, and M nonimmigrants may inadvertently violate their status and accrue unlawful presence, resulting in serious immigration consequences.

If you have any questions about how this new change might affect your immigration case, please call us and schedule a consultation.

by David Tuteur David Tuteur No Comments

USCIS Changes Longstanding RFE and NOID Policy, Making Denials More Likely

In an official Policy Memorandum issued on Friday, USCIS announced that the agency will be changing its longstanding policy on issuing denials without first requesting additional evidence to demonstrate eligibility for the immigration benefit being sought.

Since 2013, USCIS has instructed its adjudicators to issue a Request for Evidence (RFE) or a Notice of Intent to Deny (NOID) when evidence submitted at the time of filing fails to clearly establish eligibility or ineligibility for the benefit sought. This gives the applicant an opportunity to respond, clarify any issues USCIS may have with their application, and submit additional documentation to support their application.

Under the new policy, however, USCIS adjudicators are instructed to deny any applications that fail to establish eligibility in the initial submission. This includes not only denials based on statutory ineligibility, but also denials based on a lack of sufficient initial evidence. The USCIS Policy Memo provides examples of these situations, including waiver applications with little to no supporting hardship evidence, or permanent resident applications that lack a required Affidavit of Support. While an applicant and their counsel could previously expect the opportunity to respond to an RFE or NOID in these and similar cases, it appears that an outright denial will be more likely under the new agency policy.

The new policy goes into effect September 11, 2018, and applies to all applications, petitions, and requests submitted to USCIS after that date.

by David Tuteur David Tuteur No Comments

PUBLIC CHARGE DETERMINATION – THE NEW ROADBLOCK TO AN IMMIGRATION STATUS

Immigrants seeking admission to the U.S.  will now face new challenges, as the Trump administration has proposed new guidelines in determining whether a visa applicant is likely to become a “public charge.”  Under current guidance from U.S. Citizenship and Immigration Services (USCIS) and the Department of State, a public charge refers to a person who is primarily dependent on the government for support. The purpose of the public charge determination is to prevent people, who are likely at any time to require governmental support, from being admitted to the United States. This determination is not only very broad in nature, but it is also at the discretion of the consular officers, leaving room for very different application and results at each consulate.  Furthermore, it appears USCIS may incorporate some of these changes into its adjudication of applications to adjust status (green card applications) for applicants already present in the U.S.

When determining whether someone is likely to become a public charge, consular officers are required to take into account certain factors such as the person’s age, health, family status, assets, resources, financial status, education, and skills. A leaked draft of the proposed regulation states that additional factors will now be considered or weighed differently, including whether the person has ever used certain governmental programs or benefitted from certain tax deductions.

To make matters worse, the Department of State’s Foreign Affairs Manual (FAM), which provides regulatory guidance for consular officers, has already made changes to its public charge determination. The change notates that “a properly filed, non-fraudulent Form I-864 [Affidavit of Support] in those cases where it is required, is a positive factor in the totality of the circumstances that you must consider when making a public charge determination.” This is a substantial deviation from previous practice. In the past, a properly filed Form I-864 Affidavit of Support was generally considered sufficient to satisfy the “totality of the circumstances” analysis such that approval based on this form was customary.

Unfortunately, these changes will undoubtedly increase the number of applicants denied admission to the U.S., and for many applicants these changes will require a new approach and additional documentation at consular and USCIS interviews.

Attorneys at Stern & Curray are watching this issue carefully. If you have questions about these changes and how they might affect your immigration case, please call us and schedule a consultation.

by David Tuteur David Tuteur No Comments

ATTORNEY GENERAL SESSIONS HALTS THE USE OF ADMINISTRATIVE CLOSURE

The use of administrative closure has come to a halt after the decision rendered by Attorney General Jefferson Sessions in the Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018), which holds that, in most cases, immigration judges do not have the authority to indefinitely suspend immigration proceedings by administrative closure.

In the past, immigration judges relied on their ability to administratively close cases, technically suspending them, instead of rendering a final decision, in an effort to manage cases in a more efficient manner. This essentially allowed immigrants to remain in the United States without a legal status. The use of this method was inferred from the ability of judges to use their independent judgment and discretion, as consistent with regulations, in the disposition of their cases.

According to the opinion, immigration judges, acting under the authority granted to them under a Statute or as delegated by the Attorney General, do not have unfettered authority to administratively close cases; but are rather permitted to use administrative closure in a specific category of cases – where a previous regulation or a previous judicially approved settlement expressly authorized such an action. As of now, all cases that are currently administratively closed may remain closed unless the Department of Homeland Security (DHS) or the respondent requests re-calendaring.

In addition, administrative closure has been commonly used in the past to allow individuals in removal proceedings to apply for and receive a Provisional Unlawful Presence Waiver prior to departing the United States. Without such a waiver, anyone who has accrued more than six months of unlawful presence and leaves the United States must remain outside the country for either 3 or 10 years before they can be granted a visa, even if they are married to a U.S. citizen or permanent resident. Individuals who are in removal proceedings, however, are ineligible to apply for this waiver unless their case is administratively closed. This decision therefore effectively bars anyone in removal proceedings from applying for a Provisional Unlawful Presence Waiver, adding significantly to the length of time they will be separated from their family in the United States.

by David Tuteur David Tuteur No Comments

DHS Must Accept New DACA Applications According to Federal Court Ruling

A judge for the Federal District of D.C. ruled Tuesday that the administration improperly terminated the DACA program, and the Department of Homeland Security must therefore accept new DACA applications. Under previous court orders, DHS was only required to accept DACA renewal applications, leaving out those who were eligible but had never received DACA.

Importantly, the ruling will not go into effect for 90 days, allowing DHS an opportunity to explain the legal justification for canceling the program. If DHS fails to provide an adequate basis for canceling the program within the next 90 days, individuals who were eligible but never applied for DACA would be able to do so.

by David Tuteur David Tuteur No Comments

Warning About Scam Phone Calls to Adjustment of Status Applicants

Our firm has recently received reports of individuals with pending One-Step Adjustment of Status applications receiving phone calls from someone claiming to be from the Denver Sheriff’s Office. The person on the phone is reported to allege that the individual missed an immigration-related court date and must report to the sheriff’s office.

If you receive any calls from individuals claiming to be from law enforcement or immigration, please contact your immigration attorney immediately. Additionally, please remember to never give personal information over the phone to anyone claiming to represent a local, state, or federal government agency. Local law enforcement agencies do not investigate immigration offenses, and although they may send letters through the mail, neither USCIS nor ICE will use phone calls to collect information or make allegations.

by David Tuteur David Tuteur No Comments

USCIS BEGINS ACCEPTING DACA RENEWALS FOLLOWING COURT ORDER

USCIS announced on Saturday that it will resume accepting DACA renewal applications. The announcement comes in response to an injunction issued last week by a federal district court in San Francisco, which ordered DHS to continue accepting renewal applications while a lawsuit against the decision to end DACA moves forward. Because the injunction is temporary and part of ongoing litigation, it is uncertain how long the window to apply for a renewal will remain open.

The details of the USCIS announcement are outlined below.

If your DACA expired on or after September 5, 2016 or if you currently have DACA:

You may apply to renew your DACA now. Even if your DACA will not expire in less than six months, you may apply to renew it, though this may result in an approved period of less than two years from the end of your current DACA period. Because the court order is temporary and subject to future litigation, recipients will want to renew their DACA as soon as possible.

If you previously had DACA, but it expired or was terminated before September 5, 2016:

You may apply for DACA again, though you must apply as an initial applicant rather than a renewal.

If you have never applied for DACA:

Unfortunately, USCIS is not currently accepting requests from first-time DACA applicants.

Advance Parole:

Advance Parole is the name for permission from the U.S. government to travel outside the United States for specific reasons and authorization to renter upon return. USCIS is not currently accepting applications for Advance Parole based on DACA.

by David Tuteur David Tuteur No Comments

DHS to End Temporary Protected Status for Over 200,000 Salvadorans

The Department of Homeland Security announced on Monday that it is ending the Temporary Protected Status (TPS) designation for over 200,000 Salvadorans who have lived and worked lawfully in the US for the past 17 years. The termination of TPS, however, will be delayed until September 9, 2019, in order allow individuals time to close their businesses, sell their homes and assets, and otherwise prepare for their departure from the United States.  According to the Washington Post, the decision to revoke TPS for El Salvador will impact not only the over 200,000 individuals protected by the status, but also their estimated 190,000 US-born children.

DHS originally designated TPS for El Salvador in response to two devastating earthquakes that struck only weeks apart in 2001, resulting in thousands of landslides across the country. Over one thousand Salvadorans lost their lives in the quakes and resulting landslides, and hundreds of thousands of homes were destroyed, in addition to millions of dollars in damage to the country’s water and sanitation systems.

The protected status designation has been renewed 11 times since its initial designation. The most recent extension, which was granted in 2016, cited numerous subsequent natural disasters to justify the extension, including hurricanes, tropical storms, flooding, seismic activity, and a prolonged drought that caused severe shortages of food and adequate drinking water. Additionally, the previous extension cited the increased spread of mosquito-borne illness, housing and electricity shortages, and gang-related insecurity across the country as further justification. In Monday’s announcement, DHS Secretary Kirstjen M. Nielson states that the decision came after determining that “the original conditions caused by the 2001 earthquakes no longer exist,” and that the “substantial disruption of living conditions caused by the earthquake no longer exist.”

The decision comes after two other countries lost their TPS designations in 2017, Haiti and Nicaragua. The Trump Administration extended the TPS designation for Honduras until July 2018, but suggested that it may decide not to renew the designation in the future.

by David Tuteur David Tuteur No Comments

Department of Homeland Security Considering Changes to H-1B Extension Rules

The Department of Homeland Security is reported to be considering changes to regulations that currently allow certain individuals in H-1B status to extend their status beyond the 6-year limit. The changes being considered would impact individuals who have an approved I-140, but are not yet able to apply for permanent residence (green card) due to the visa backlog. Currently, such individuals are eligible to extend their H-1B beyond the 6-year limit in 3-year increments, which allows them to continue working without interruption for their US employer while they wait for their priority date to become current.  Although no changes to the extension regulations have occurred, DHS is reported to be considering making these extensions discretionary, which would greatly increase the risk of denials.

Importantly, any change to DHS’s interpretation of this regulation would require a formal announcement followed by a 90-day notice and comment period before any changes could be implemented. In addition, any change to DHS’s longstanding interpretation of law would be subject to extensive litigation, which would likely further delay implementation of any change.

While these reported considerations are worrisome, there have not yet been any changes in DHS regulations or policies. We will continue to stay abreast of any changes to this and other DHS policies, and will post updates on our website.

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