In a policy memorandum dated June 28th, 2018, USCIS announced a dramatic change in practice on how it will proceed with denied employment based cases. USCIS announced that it will now issue a Notice to Appear (“NTA”) in employment-based immigration cases where there is evidence of fraud, criminal activity, or where an applicant is denied an immigration benefit and is unlawfully present in the United States. Previously, USCIS referred denied cases to Immigration and Customs Enforcement (“ICE”) to decide whether to issue a NTA. Under this new policy memo, USCIS will now issue NTAs on its own initiative and thereby place individuals in removal proceedings upon denial of a petition for immigration benefits if the person is deemed out of status at the time of the USCIS denial.
A NTA places an individual in removal proceedings and requires the individual to remain in the U.S. to appear before an immigration judge, which can take years under our current system. Prior to this policy memo change, individuals with denied petitions would depart the U.S. to seek redress for the denied petition and regain legal status.
This policy change can have dramatic impact on lawfully employed workers in the U.S. If you have questions on how this new policy memo may impact your immigration case, please contact SPS Immigration PLLC.
In a 5-4 ruling on June 26th, 2018, the U.S. Supreme Court upheld President Trump’s travel ban. In an opinion written by Chief Justice Roberts, the court found that:
Indefinitely banning people from particular countries was a lawful use of the president’s power under the Immigration and Nationality Act, which allows the executive branch to suspend the entry of a “class” of people if the government “finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States.”
The travel ban did not violate the First Amendment by denying freedom of religion to Muslims.
If you have questions on how this ruling impacts your immigration case, please contact SPS Immigration PLLC.
USCIS announced Tuesday, May 15, that it has completed data entry for all fiscal year 2019 H-1B cap-subject petitions. USCIS will now begin returning H-1B cap-subject petitions that were not selected to the Attorney of Record. USCIS did not state the timeline that Petitioners can expect to receive unselected petitions.
USCIS also announced that is will be shifting caseloads between the California Service Center (“CSC”) and the Vermont Service Center (“VSC”), and that affected cases will receive transfer notices.
If you have questions about H-1B status, or the H-1B cap, please contact SPS Immigration.
USCIS announced on May 11, 2018 that it intends to make a major policy change relating to how it calculates the accrual of unlawful presence for students and exchange visitors in F, J and M nonimmigrant status in the United States. USCIS is accepting comments on this planned policy change through June 11, 2018, and could modify the policy memorandum depending on the comments received. Unlawful presence is normally defined as being present in the United States after the expiration of one’s I-94 card. Individuals who have accrued more than 180 days of unlawful presence are subject to a three-year bar to admission, while individuals who have accrued more than 365 days of unlawful presence are subject to a ten-year bar to admission.
Under current rules, F, J, and M nonimmigrants are normally admitted for “Duration of Stay” or “D/S.” Because this has no set expiration date, they generally do not accrue unlawful presence in most circumstances absent the denial of a request for an immigration benefit together with DHS or an immigration judge making a formal finding that the foreign national violated their nonimmigrant status. Under the new policy, effective August 9, 2018, F, J, and M nonimmigrants and their dependents present in the United States (whether in duration of status or until a certain date) will start accruing unlawful presence if they fail to maintain nonimmigrant status at the earliest of the following:
The day after the F, J, or M nonimmigrant no longer pursues the course of study or the authorized activity, or the day after he or she engages in an unauthorized activity;
The day after completing the course of study or program (including any authorized practical training plus any authorized grace period, as outlined in 8 CFR 214.2);
The day after the Form I-94 expires, if the F, J, or M nonimmigrant was admitted for a date certain; or
The day after an immigration judge or, in certain cases, the BIA orders the alien excluded, deported, or removed (whether or not the decision is appealed).
This planned change in policy subjects foreign national students and exchange visitors to significant new risks of being found to have accrued unlawful presence. Because the new policy guidance states that an F, J, or M nonimmigrant will begin accruing unlawful presence “the day after he or she engages in an unauthorized activity” it is much more likely that an inadvertent status violation could be deemed an even that begins the accrual of unlawful presence. For instance, if a student or exchange visitor performs work without authorization, without realizing it violates status — and even for only a day or two — he or she could be viewed as having engaged in an unauthorized activity that would begin the accrual of unlawful presence. Immigration status is incredibly complex and often these individuals are unaware that innocent, normal activities can be viewed as a violation of status. Should this new policy be implemented as planned, foreign nationals in F, J, or M status will need to be particularly careful regarding their activities in the United States to avoid inadvertent accrual of unlawful presence.
Please contact SPS Immigration PLLC if you have questions about how this policy might affect foreign national students or exchange visitors.
Today, April 12, 2018, USCIS announced that on April 11th, it conducted the H-1B lottery for FY 2019. USCIS received 190,098 Petitions for the almost 85,000 slots. This is less than in FY 2018, when USCIS received 199,000 Petitions. USCIS received 94,213 Petitions for the standard cap and 95,885 Petitions for the advanced degree cap.
USCIS conducted the selection process for the master’s cap first. All unselected master’s cap petitions then became part of the random selection process for the 65,000 cap.
Please contact SPS Immigration if you have questions regarding how this impacts your immigration case.
Friday, April 6th, 2018, USCIS announced that it reached the FY 2019 H-1B cap during the mandatory first five business days that the program must remain open to accept filings. USCIS did not announce when it will run the lottery, and SPS Immigration will keep you appraised as USCIS continues to announce advances in its lottery process.
Please contact SPS Immigration should you have questions about how this impacts your immigration situation.
On Friday, March 30, 2018, the U.S. Department of State (“DOS”) published notice in the Federal Register of its desire to modify the Form DS-160, which is a form required of all non-immigrant visa applicants seeking entry into the U.S., and the DS-260, which is a form required of all immigrant visa applicants seeking entry into the U.S.
One of the proposed changes to these forms is to require applicants to identify all social media platforms used during the preceding five years. Another question requires applicants to list the past five years of telephone numbers, email addresses, and international travel. The DOS is also proposing adding additional questions regarding deportation/removal issues and terrorist activities of family members. The DOS has, since May 2017, been requiring social media information in cases where consular officials determined the information was required to confirm identity or to conduct more “extreme vetting” of particular applicants.
The DOL must go through the required notice and comment period for the next 60 days, which provides stakeholders the opportunity to submit information regarding the impact of these proposed changes. Thereafter, the DOS will need to consider and respond to all comments, and give notice of the final implementation date of the revisions it will make. In other words, this Federal Register notice only indicates how the DOS desires to change the DS-160 and the DS-260. The legal process requires the DOS to go through this mandatory public notice and comment period before making any changes.
SPS Immigration will continue to monitor this process and provide updates as appropriate. If you have questions on how this change may impact your immigration case, please contact SPS Immigration.