US Government could easily streamline the path from H-1B to Citizenship

Despite recent misleading tweet by President Trump assuring H-1B holders that they should expect a potential path to citizenship, the Administration’s actions have so far proven to be doing quite the opposite. There is no direct path to citizenship for H-1B visa holders. They first have to obtain permanent residence, and must then wait for at least 5 years, in most cases, before they become eligible for naturalization with routine requests for extensions of H-1B status for occupations, which should have traditionally been recognized for H-1B classification, have been denied. These arbitrary denials by no means bring simplicity and certainty in the life of an H-1B visa holder, leave alone providing a path to citizenship. More so, Trump administration is proposing a rule that would rescind the grant of work authorization to H-4 spouses.

Ironically, the Administration could in fact make life for work visa holders a whole lot easier - if they chose to make some effort in that direction with the goal of approving rather than denying the visa, bringing about much needed simplicity and certainty to both employers and H-1B visa holders. This used to be the case, where the supporting letter for an H-1B petition seldom exceeded a page or two. Presently, employers must brief an H-1B visa petition as if they are filing a brief in federal court. This is quite unnecessary for a routine work visa application. If H-1B processing resumes in a fair and rational manner, most nationals not born in India and China should be able to obtain permanent residency relatively quickly upon being sponsored by their employers through the labor certification process. The outrageous waiting times are due to the excess demand and limited supply of visas, further compounded by the per country cap, set by Congress each year. On first brush, only Congress can change this and not Trump. As Congress is divided, such changes for H-1B visa holders are unlikely for now. There have been proposals in Congress to eliminate the per country caps, which have yet to pass. However, if he wanted to and had the guts, Trump could change the way we count dependents that would dramatically decrease, and ultimately eliminate the backlogs, thus providing a pathway for citizenship to H-1B visa holders.

Another stumbling block is the process and manner of how the visa numbers are counted. Recently a group of EB-5 investor arguments made the same argument that the State Department was counting visa numbers incorrectly. Their request for preliminary injunction was recently denied, although the case has to yet be decided on the merits. Still, this is a setback as the judge did not accept the plaintiff’s argument that the administration was counting visas incorrectly. Even if plaintiffs were denied the preliminary injunction, the Trump administration could cease opposing the plaintiffs in this litigation and start counting the principal and derivative beneficiaries as one unit. There is no explicit authorization for derivative family members to be counted separately under either the employment-based or family based preference visas in the Immigration and Nationality Act. Nothing in INA 203(d) provides authority for family members to be counted under the preference quotas. While a derivative is “entitled to the same status, and the same order of consideration” as the principal, nothing requires that family members also be allocated visa numbers. If Congress allocates a certain number of visas to immigrants with advanced degrees or to investors, it makes no sense if half or more are used up by family members. If Trump wanted to give meaning to his tweet so as to truly assure H-1B visa holders, even if he may not have known what he was saying, he does have room under INA 203(d) to order the State Department and USCIS to count both the principal beneficiary and the family members as one.

USCIS Clarifies the 1-Year Foreign Employment Requirement

In order for an L-1 petition to be approved, one of the basic requirements is that the beneficiary has worked abroad for a related entity for at least one year in the past three years. This is often referred to as the “one-in-three” rule. The U.S. Citizenship and Immigration Services (USCIS) has issued a policy memorandum clarifying how USCIS officers should calculate the one-year period of foreign employment when the beneficiary has traveled to the United States during that period.

The policy memorandum clarifies that L-1 beneficiaries must be physically outside the United States during the required continuous one-year duration of employment. Brief trips to the United States for business or pleasure do not interrupt the continuous one year, but the number of days the beneficiary spends in the United States ultimately will be subtracted from the time the qualifying foreign organization employs the beneficiary abroad. The memo further notes that the petitioner and the beneficiary must meet all requirements, including the one-year of foreign employment, at the time the initial L-1 petition is filed.

As mentioned, in order to qualify for L-1, one must have worked for the foreign entity for at least one year in the past three years. Normally, the three-year period to be examined is the three years immediately preceding the date the petition was filed. The memo explains, however, that there is an exception to the period looked at to meet the requirement for the one-in-three rule. If the foreign national worked for the foreign entity, and then comes to the U.S. to work for the related U.S. entity in a status other than L-1 (e.g., H1B, E-2), the USCIS officer should look at the three-year period immediately prior to the individual’s having been admitted to the United States.

The memo provides an example to illustrate this point.

[I]f a beneficiary worked in the United States in a valid H-1B status for a qualifying organization from January 2, 2017, through January 2, 2018, and the petitioner filed for L-1 nonimmigrant status for the employee on January 2, 2018, the pertinent three-year period will be from January 1, 2014, to January 1, 2017. This exception does not apply if the foreign national comes to the U.S., but is not working for the related U.S. entity. For instance, if the foreign national comes to study or to work for an unrelated U.S. entity, the one-in-three rule would be met only if the beneficiary worked in the qualifying position abroad for at least one year in the three years preceding the date the petition was filed.

Lawsuit Challenges New USCIS Policy on ‘Unlawful Presence’for Foreign Students and Exchange Visitors

In a new lawsuit filed in the U.S. District Court, several institutions of higher education have challenged a recently announced Trump administration policy, effective August 9, 2018, changing the calculation of the number of days of “unlawful presence” for nonimmigrant foreign students from the date U.S. Citizenship and Immigration Services (USCIS) or an immigration judge finds a violation or orders the student removed to the date the status lapsed.
Since 1997, the United States adopted a clear policy governing the implementation of the immigration statute. It established objective rules that provided visa holders notice. If the authorized period of stay ended on a date certain on which the individual was required to leave the country, unlawful presence began following that date. And for all individuals, unlawful presence began the day after either a government official or immigration judge made a determination that the individual was out-of-status. This provided individuals an opportunity to cure their violations or to depart the country within 180 days. Either way, individuals acting in good faith had an opportunity to avoid imposition of a three- or ten-year reentry bar.
Most international students enter the United States on F or M visas, while some enter on J visas, many international researchers, scholars, and professors at higher education and research institutions enter the country on J visas for exchange visitors. In general, when F, J, or M visa holders enter the country, they are not supplied with a “date certain” on which they must depart. Rather, their visas are valid for the “duration of status,” or “D/S.” For more than two decades, the United States has held that the unlawful presence clock for these individuals begins on the day after a government official or immigration judge adjudicates the individual as out-of-status, i e when visa holder is provided clear notice that the government believes that the individual is out-of-status.
Now, based on the August 9, 2018, USCIS memorandum, when a government official or immigration judge determines that an F, J, or M visa holder is out-of-status, the unlawful-presence clock will be backdated to the day on which the agency concludes that the visa holder first fell out-of-status. The complaint states that the immigration system “is beset with processing delays, and many of these status determinations are made when an individual is applying for new immigration benefits.” Thus, the new policy’s use of a backdated unlawful-presence clock “will render tens of thousands of F, J, and M visa holders subject to three- and ten-year reentry bars without any opportunity to cure,” the complaint states. “This policy, accordingly, will result in the three- or ten-year banishment of untold numbers of international students and exchange visitors acting in good faith.” Moreover, by disrupting the ability of these individuals to continue studying at their schools, or continuing their research, teaching, or other scholarly pursuits, the August 2018 policy memorandum will result in concrete, significant harms to colleges and universities, including through the loss of irreplaceable community members, loss of tuition dollars, and loss of trained employees.

The wait for the U.S. citizenship is stretching up

More than 700,000 immigrants are waiting on applications to become U.S. citizens, a process that once typically took about six months but has stretched to more than two years in some places under the administration of President Donald Trump.

The long wait times have prompted some immigrant advocates to ask whether the delays are aimed at keeping anti-Trump voters from casting ballots in elections.

"People are motivated to participate, and they're being frustrated from being able to participate in the elections they're excited about," said Manuel Pastor, director of the University of Southern California's Center for the Study of Immigrant Integration.

The number of immigrants aspiring to become U.S. citizens surged during 2016, jumping 27 percent from a year earlier as Trump made cracking down on immigration a central theme of his presidential campaign. At first, the federal government kept up with the applications, but then the wait grew.

Backlogs are nothing new in the U.S. immigration system. It often takes years to receive asylum or to be deported. But naturalization — the final step to become an American citizen, obtain a U.S. passport and receive voting rights — had not been subject to such delays in recent years.

Now the average wait time for officials to decide on applications is more than 10 months. It takes up to 22 months in Atlanta and as long as 26 months in parts of Texas, according to official estimates.

Shall Derivative Family Members Be Counted Against Visa Quotas? 

Many immigration law attorneys and advocates argued for many years that USCIS is misinterpreting the statutes in counting visas against derivative family members. There is no explicit authorization for derivative family members to be counted separately under either the employment-based or family-based preference visas in the Immigration and Nationality Act. The treatment of family members is covered by INA 203(d), enacted in 1990, which states: “A spouse or child defined in subparagraphs (A), (B), (C), (D), or (E) of section 1101(b) of this title shall, if not otherwise entitled to an immigrant status and the immediate issuance of a visa under subsection (a), (b), or (c) of this section, be entitled to the same status, and the same order of consideration provided in the respective subsection, if accompanying or following to join, the spouse or parent.” Nothing in INA 203(d) provides authority for family members to be counted under the preference quotas. While a derivative is “entitled to the same status, and the same order of consideration” as the principal, nothing requires that family members also be allocated visa numbers. While the argument was going on for many years during the Bush and Obama administrations, now they decided to take some drastic steps. 
A group of investors under the employment-based fifth preference (EB-5) have filed a lawsuit, Feng Wang v. Pompeo, and even won class certification. Their main argument is that in every year, except for 2017, the number of derivatives receiving permanent residence was greater than the number of principal applicants, thus resulting in backlogs for China and subsequently Vietnam in the EB-5. If the derivative family members were not counted in the EB-5, the principal applicants would have received conditional permanent residence or green cards by now. 
The EB-5 plaintiffs have focused their argument specifically on the language in INA 203(b)(5), which provides that “visas shall be made available, in a number not to exceed 7.1 percent of [the 140,000 employment-based] worldwide level, to qualified immigrants seeking to enter the United States for the purpose of engaging in a new enterprise… which such alien has invested” a qualifying amount of capital, and which will create at least 10 jobs for U.S. workers. Thus, plaintiffs argue that INA 203(b)(5) unambiguously provides that 7.1% of the 140,000 employment-based visas shall be allocated to investors who satisfy the EB-5 requirements. Nothing in the language of INA 203(b)(5) provide for the reduction of the allocation of EB-5 visas to spouses and children. Rather, spouses and children, under INA 203(d) will “be entitled to the same status and the same order of consideration provided in the respective subsection, if accompanying or following to join, the spouse or parent.”
The plaintiffs in Feng Wang v. Pompeo also point to the provision in INA 217(f) regarding the removal of conditions for conditional residents to further demonstrate that Congress did not intend to classify the spouses and children of investors as investors under INA 203(b)(5). INA 217(f) separately defines an “alien entrepreneur” who was admitted for permanent residence from the “alien spouse” or “alien child”, who were admitted for permanent residence by virtue of being the spouse and child of the “alien entrepreneur.”
Finally, the plaintiffs also argue that INA 203(b)(5)(B) sets aside 3,000 visas for those who invest in targeted employment areas (TEA), and in exchange, the investor invests a reduced amount. However, since historically approximately two derivative spouses/children accompany each EB-5 investor, investors would be able to use up only the 3,000 visas allocated to TEA investors, even though Congress intended that investors be given a choice to invest in a TEA or in an area outside a TEA.
If the plaintiffs prevail in Feng Wang v. Pompeo, the beneficial impact of the ruling will be limited to EB-5 investors. They have moved for a preliminary injunction based on imminent harm such as children aging and other economic harms. Still, a victory, assuming that the plaintiffs also prevail on appeal, will provide a springboard for EB plaintiffs in other backlogged preferences to file a broader class action. 
Of course, winning on these arguments will not be easy. However, If plaintiffs win, the number of available green cards will double or triple without Congress needing to lift a finger and the waiting lines will vanish or be drastically reduced.




USCIS Denying Change Of Status For F-1 Students With Over 12 Months Of Curricular Practical Training

An F-1 student who has received more than 12 months of Curricular Practical Training (CPT) may be found by United States Citizenship & Immigration Services (USCIS), to have violated F-1 status and thus ineligible to be granted a change of status in the US. This is yet another disturbing trend indicating that USCIS had started challenging F-1 maintenance of status through CPT by issuing Requests for Evidence on pending H-1B petitions requesting a change of status in the US.

Essentially, 8 CFR § 214.2(f)(10) provides that a student may be authorized a total of 12 months of practical training, and becomes eligible for another 12 months when the student changes to a higher educational level. Under 8 CFR § 214.2(f)(10)(i), however,  “students who have received one year or more of full time curricular practical training are ineligible for post-completion academic training.” This could clearly be interpreted to mean that a student can receive more than one year of CPT and, if so granted, this student would simply become ineligible to receive any practical training after graduation. This appears to have been the prevailing interpretation by all government agencies and CPT has continued to be routinely granted by Designated Student Officers (DSO) through the Student and Exchange Visitor Information System (SEVIS) that is administered by Immigration and Customs Enforcement (ICE). Enter the new USCIS in the era of Trump. Suddenly, USCIS has begun to interpret the regulations to mean that a student may only be granted a total of 12 months of any type of practical training. This, despite the fact that ICE, its sister agency, authorized more than 12 months of CPT. USCIS is choosing to completely disregard the unmistakable indication in 8 CFR § 214.2(f)(10)(i) that students may legitimately receive “one year or more” of CPT.

It is painfully obvious that the intent behind the regulation was only to prohibit students who had received more than 12 months of CPT from then also receiving Optional Practical Training (OPT) after graduation. The intent was not to penalize a student for receiving more than 12 months of CPT. First, the student could not receive more than 12 months of CPT if the CPT weren’t actually granted by a school DSO and entered into SEVIS. Accordingly, if there were any violation, it should be on the part of the school and not the student. The student should not be punished for failure to maintain status when that student followed all the appropriate steps to maintain status. Second, why is USCIS making a determination that such a student failed to maintain status when ICE is the agency that administers the Student and Exchange Visitor Program (SEVP)? If ICE has not determined that a student failed to maintain status and if SEVIS indicates that the student is currently in status, then USCIS ought to acknowledge that. If there had truly been a violation of status then SEVIS would have so indicated.  And third, the regulations at 8 CFR § 214.2(f)(10) are simply outdated. In March 2016, the Department of Homeland Security (DHS) amended its F-1 student visa regulations on OPT for certain students with degrees in science, technology, engineering, or mathematics (STEM) from SEVP-certified and accredited U.S. colleges and universities. Specifically, the final rule allows such F-1 STEM students who have elected to pursue 12 months of OPT in the U.S. to extend the OPT period by 24 months (STEM OPT extension). See 8 CFR § 214.2(f)(10)(ii)(C). Perhaps DHS could have also amended the regulations and removed all outdated sentences. Unfortunately, USCIS is now seizing upon such a sentence and using it to launch another attack on F-1 students.

In the case of the H-1B petition, USCIS can approve the underlying H-1B but deny the request for a change of status. In order to obtain H-1B status, the student would need to leave the US and apply for an H-1B visa at a US Consulate or Embassy abroad. At this point in time, upon receipt of a USCIS denial of a request for a change of status on an H-1B petition, the F-1 student would only have accrued unlawful presence from August 9, 2018 under USCIS’ unlawful presence policy for F, J and M nonimmigrants. Individuals who have accrued more than 180 days of unlawful presence during a single stay, and then depart, may be subject to 3-year or 10-year bars to admission, depending on how much unlawful presence they accrued before they departed the United States. See INA § 212(a)(9)(B)(i)(I) & (II).  Individuals who have accrued a total period of more than one year of unlawful presence, whether in a single stay or during multiple stays in the United States, and who then reenter or attempt to reenter the United States without being admitted or paroled, are permanently inadmissible. See INA § 212(a)(9)(C)(i)(1). Very few students will trigger the permanent bar as they generally do not try to reenter the US without being admitted or paroled.   Students in receipt of a denial of a change of status can take advantage of the current grace period until February 5, 2019. However, if the student departs the US later than February 5, 2019, he or she will be barred from re-entering for 3 or 10 years.

So what can be done? More so than ever before, F-1 students really need to be proactive about their maintenance of status and need to seek legal advice in the event that any rules are unclear or even just to ensure that they are on the right track. It will not be enough to rely on the DSO’s advice as the student will be the one punished in the end. But the bottom line is that this USCIS policy must be challenged in federal court! It is simply unconscionable to inflict the 3 and 10 year bars on a student who has diligently sought to maintain status in the US.


F-1 ‘Cap-Gap’ Status, Work Authorization Extension No Longer Valid as of October 1, 2018

U.S. Citizenship and Immigration Services (USCIS) issued an alert on September 28, 2018, reminding F-1 students who have an H-1B petition that remained pending on October 1, 2018, that they risk accruing unlawful presence if they continue to work on or after October 1 (unless otherwise authorized to continue employment) because their “cap-gap” work authorization was only valid through September 30. Due to increased demand for immigration benefits, resulting in higher caseloads as well as a significant surge in premium processing requests, USCIS noted in the late-September alert that it might not be able to adjudicate H-1B change of status petitions for all F-1 students by October 1.

USCIS noted that its 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 October 1 to have his or her F-1 status and any current employment authorization extended through September 30. This is referred to as filling the “cap-gap,” USCIS explained, 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 September 30, with October 1 being the requested start date of their H-1B employment, unless otherwise terminated or the H-1B petition is rejected or denied before October 1.

USCIS said that while the temporary suspension of premium processing of certain types of H-1B petitions has allowed the agency 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 October 1, the F-1 student is no longer authorized to work under the cap-gap regulations. However, USCIS said, “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 September 30, USCIS explained, he or she may continue to work as authorized

            Extension of Russian E-Visa (Visa Waiver Program) for citizens of certain foreign countries entering only thru Russian Far East points of entry

The new Russian federal law of July 19, 2018, № 202-FZ, “On amending individual legal acts of the Russian Federation pertaining to easier E visa procedures for foreign citizens on the territory of Russian Federation state border airport checkpoints located in the Far Eastern Federal District,” comes into force on August 19, 2018. The federal law provides for extending entry and exit E visa procedures to the territory of airport checkpoints located in the Far Eastern Federal District. At the moment, the E visa procedures are valid for entry into the Russian Federation and exit from the Russian Federation only through the following checkpoints across the state border, located on the territory of the Free Port of Vladivostok: Air checkpoint “Vladivostok (Knevichi)”; Maritime checkpoints “Vladivostok,” “Zarubino,” Petropavlovsk-Kamchatsky,” “Korsakov,” and “Posiet”; Railway checkpoints “Pogranichny,” “Khasan,” and “Makhalino”; and Road checkpoints “Poltavka” and “Turiy Rog.”
Beginning August 19, 2018, the E visa procedures will be available for entry into the Russian Federation and exit from the Russian Federation at following air checkpoints of the Far Eastern Federal District: Khabarovsk (Novy), Petropavlovsk-Kamchatsky (Yelizovo), Yuzhno-Sakhalinsk (Khomutovo), Blagoveshchensk, and Anadyr (Ugolny).
E Visa Specifics and Application Process. 
Only citizens of the following countries can obtain an e-visa, the list is set out by the Government of the Russian Federation: Algeria, Bahrain, Brunei, India, Iran, Qatar, People’s Republic of China, Democratic People’s Republic of Korea, Kuwait, Morocco, Mexico, United Arab Emirates, Oman, Saudi Arabia, Singapore, Tunisia, Turkey, Japan. 
An E visa is free. Invitations, hotel booking confirmations, or any other documents that confirm the purpose of visit to the Russian Federation are not required for an E visa. An E visa is valid for entry into the Russian Federation and exit from the Russian Federation only through the checkpoints established by the government of the Russian Federation and located on the territory of the Free Port of Vladivostok and, since August 19, 2018, also in the Far Eastern Federal District. An E visa is for single entry and is issued for a period of 30 calendar days from the date of issuance. The permitted period of stay in the Russian Federation on an electronic visa is up to 8 calendar days, starting from the date of entry. The validity of the E visa and the permitted period of stay under E visa in Russia cannot be extended.
E visas can only be issued for the following categories: Business (purpose of the visit: business),
Tourist (purpose of the visit: tourism), Humanitarian (purpose of the visit: sports, cultural relations, or scientific and technical relations). If the purpose of the visit does not correspond to any of the above, the visa is issued through diplomatic missions or consular offices of the Russian Federation.
Foreign citizens who have arrived in the Russian Federation on E visas have the right to travel only within the Far Eastern Federal District, with the exception of territories, organizations, and facilities. Special permission to enter the latter is required in accordance with federal laws of the Russian Federation. Foreign citizens can leave the Russian Federation on E visas only through checkpoints in the territory of the Free Port of Vladivostok and the Far Eastern Federal District.
E visa applications are filed through the website of the Consular Department of the Ministry of Foreign Affairs: (Russian), (English)


USCIS Finalizes Unlawful Presence Policy Putting F-visa hoders in Great Jeopardy



USCIS finalized its unlawful presence policy for F, J and M nonimmigrants on August 9, 2018. The final policy makes no significant changes from the draft policy of May 10, 2018. As of August 9, 2018, F, J and M nonimmigrants who have failed to maintain nonimmigrant status will start accruing unlawful presence.

Individuals who have accrued more than 180 days of unlawful presence during a single stay, and then depart, may be subject to 3-year or 10-year bars to admission, depending on how much unlawful presence they accrued before they departed the United States. See INA § 212(a)(9)(B)(i)(I) & (II).  Individuals who have accrued a total period of more than one year of unlawful presence, whether in a single stay or during multiple stays in the United States, and who then reenter or attempt to reenter the United States without being admitted or paroled, are permanently inadmissible.

Prior to August 9, 2018,  foreign students (F nonimmigrants) and exchange visitors (J nonimmigrants) who were admitted for, or present in the United States in, Duration of Status started accruing unlawful presence on the day after USCIS formally found a nonimmigrant status violation while adjudicating a request for another immigrant benefit or on the day after an immigration judge ordered the applicant excluded, deported, or removed (whether or not the decision was appealed), whichever came first. F and J nonimmigrants, and foreign vocational students (M nonimmigrants), who were admitted until a specific date certain accrued unlawful presence on the day after their Form I-94 expired, on the day after USCIS formally found a nonimmigrant status violation while adjudicating a request for another immigration benefit, or on the day after an immigration judge ordered the applicant excluded, deported, or removed (whether or not the decision was appealed), whichever came first.

This will no longer be the case. Under the new policy effective August 9, 2018, any status violation will start the accrual of unlawful presence. The nonimmigrant will not be provided with any formal notice of a status violation, and any violation from the past that has been discovered would have already started the accrual of unlawful presence. According to the policy memo, the USCIS officer should consider information relating to the alien’s immigration history, including but not limited to:

  • Information contained in the systems available to USCIS;
  • Information contained in the alien’s record; and
  • Information obtained through a Request for Evidence (RFE) or Notice of Intent to Deny, if any.

USCIS also noted that the Department of State (DOS) administers the J-1 exchange visitor program, to include reinstatement requests. If DOS approves the reinstatement application of a J nonimmigrant, “the individual will generally not accrue unlawful presence from the time the J nonimmigrant fell out of status from the time he or she was reinstated,” USCIS said.

Unfortunately, most students may never know that they fell out of status until it is too late and they may never have an opportunity to file for reinstatement. Students will also likely be found to have violated status if they pursued practical training that is perceived as not being consistent with the regulations.

A student can also be found to have violated status due to an ambiguity in the rules providing for the maximum amount of time in practical training. 8 CFR § 214.2(f)(10) provides that a student may be authorized a total of 12 months of practical training, and becomes eligible for another 12 months when the student changes to a higher educational level.

Upon receiving such an RFE, it is important to submit evidence to overcome USCIS’s doubts. Still, it may be difficult to challenge USCIS’s interpretation that the regulation at 8 CFR § 214.2(f)(10) only authorizes a total of 12 months of practical training, even though 8 CFR § 214.2(f)(10)(i) appears to suggest that CPT can be granted in excess of 1 year. It may also be difficult to demonstrate to the USCIS’s satisfaction that the CPT was an integral part of an established curriculum. If the request for a change of status is not granted, the F-1 nonimmigrant would have started accruing unlawful presence as of August 9, 2018. In the event of the student departing later than February 5, 2020, he or she will be barred from entering the US for 3 years. After February 5, 2020, there will be no such grace period, and prior status violations that were in excess of 180 days will result in 3 year or 10 year bars to reentry upon the student departing the United States. The student may not be able to change or adjust status in the United States, and thus will be caught in a federally imposed Catch-22 situation.

The new policy blurs the difference between being out of status and unlawfully present, and thus violates INA § 212(a)(9)(B)(ii). If the USCIS wanted to so radically change its prior interpretation of unlawful presence for F, J and M nonimmigrants, it ought to have promulgated a rule through a more formal notice and comment under the Administrative Procedure Act. Finally, the policy violates the due process rights of these nonimmigrants as it imposes draconian penalties, 3 and 10 year bars, for status violations for which they never received formal warning and notice. All these are ripe grounds, among many others, for a successful challenge to this flawed policy in federal court!


Judge orders full restart of DACA program

Judge orders full restart of DACA program

A D.C.-based federal judge on Friday ordered the Trump administration to restart in full the Deferred Action for Childhood Arrivals program. The decision is the latest legal blow against President Donald Trump’s decision to phase out the Obama-era program, which offers deportation relief to undocumented immigrants brought to the United States as children. The restart won’t be immediate. U.S. District Judge John Bates said Friday that the order would be delayed until Aug. 23 to allow the government to appeal, but he denied a Justice Department motion to reconsider his earlier decision, saying there were still deficiencies in the administration's rationale for rescinding DACA.

“The court has already once given DHS the opportunity to remedy these deficiencies — either by providing a coherent explanation of its legal opinion or by reissuing its decision for bona fide policy reasons that would preclude judicial review,” said Bates, “So it will not do so again.” Bates in April became the third federal judge to order the administration to restart renewals for people previously approved for DACA.He also threatened to vacate the memo ending DACA — and thereby restore the program in full — if Trump officials could not present an adequate reason for ending it.

In a 25-page opinion Friday, Bates, an appointee of former President George W. Bush, rejected the administration’s argument that the original decision to end DACA remained sound. Specifically, he criticized a June memo issued by Homeland Security Secretary Kirstjen Nielsen. In the memo, Nielsen said she stood by the legal rationale laid out in a Sept. 5 directive from then-acting Secretary Elaine Duke. Bates said the Nielsen memo, like Duke’s before it, “offers nothing even remotely approaching a considered legal assessment that this court could subject to judicial review.” More than 700,000 undocumented immigrants are enrolled in the DACA program, according to the latest statistics. If Friday’s ruling goes into effect later this month, the administration will be required to accept new applications from people who meet DACA’s eligibility requirements.

New USCIS Guidance Makes Immigration Denials Easier

The U.S. Citizenship and Immigration Services adjudicators looking over applications for immigration benefits will soon have broader discretion to deny them outright, according to a memo issued Friday describing a policy shift that immigration attorneys called “extremely punitive” and “devastating to employers.”

The agency said that any USCIS employees looking over applications, petitions or requests may issue statutory denials of filings where the petitioner has no legal basis for the benefit sought, or submits a request under a program that was terminated, and that the adjudicators no longer have to send a Request for Evidence or Notice of Intent to Deny before rejecting the bid.

Those filings from the USCIS, referred to as RFEs and NOIDs, have previously warned applicants that something was amiss with their bids, giving them an opportunity to better explain themselves to the agency. But under the new policy, which kicks in on Sept. 11, USCIS workers can simply deny the bid “when appropriate” and at their discretion, according to the memo.

“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,” the agency said in the memo.

On its face, the memo doesn’t seem like a major change in policy, but several immigration attorneys told Law360 on Friday that it could have major impacts for people seeking to come to the U.S., including for H-1B visas for skilled foreign workers.

Susan Cohen, founder and chair of the immigration practice at Mintz Levin Cohn Ferris Glovsky and Popeo PC, noted that, combined with a July 5 memo from the agency increasing the situations in which the USCIS can issue notices to appear, the policy means more foreign nationals will be placed in removal proceedings. It also decreases due process, because applicants won’t have a chance to contest potentially unjustified reasons for denials, she said.

“This is extremely punitive and could have dire consequences for foreign nationals,” Cohen said. “This is part of a concerted effort to create an environment in the U.S. that is hostile to immigrants.”

The July 5 memo would vastly expand the agency’s enforcement capabilities, broadening the kinds of immigration cases that are subject to removal proceedings, which are initiated with a notice to appear. An NTA places a noncitizen before an immigration judge and commences removal proceedings.

Applicants for employment-based visas are not immune. Once issued an NTA, they might face monthslong immigration court proceedings before obtaining relief, requiring business immigration attorneys to either take up litigation or partner with litigators.

Anastasia Tonello, managing partner at Laura Devine Attorneys, called Friday’s policy change part of a “one-two punch” with the earlier memo, and an attack on legal immigration.

She pointed out that, after the agency sends an RFE and receives a response, the approval rate is high. And she estimated that around half of the RFEs she receives have asked for evidence that was already provided in the initial application, but the adjudicator accidentally missed.

But now, adjudicators are empowered to deny a bid at first glance, without applicants getting a chance to correct errors introduced by the agency itself..

“The consequences could be really devastating to employers because of the uncertainty,” she said, noting that H-1B petitions, which operate on a lottery system and in which applicants are hoping to work in specialized professions at U.S. companies, are particularly sensitive.

“This is really meant to disrupt the legal process” for coming to the U.S., she said.

Last summer, immigration attorneys reported that they were seeing increased scrutiny on H-1B petitions, with extra attention paid to those that offer entry-level wages. Those concerns were later justified by data released by the USCIS in September, when the agency said requests for evidence on those cases rose 45 percent from a year earlier.

Elizabeth Stern, partner at Mayer Brown LLP, said that part of the danger of the policy announced Friday is that it comes from the perspective that most applicants are trying to abuse the system.

“It’s amazing what you see when you’re looking for abuse,” she said, adding that if the agency is viewing applicants as cheaters rather than understanding their value, it becomes problematic.

The policy could be very dangerous if the adjudicators at USCIS, who are sorting through mountains of paperwork on each case, make mistakes in those reviews, Stern said.

The memo does, however, lay out a very clear directive, she said: petitioners must be very careful to demonstrate to the USCIS clearly and cleanly that they’ve met the necessary conditions for approval of their applications, petitions and requests.

But she said she didn’t see the memo as describing a major change.

“While this change sounds quite intimidating and could of course be used very aggressively by the agency, we actually think it’s a codification … or the moralization of a shift the agency has already made to avoid having to think of things from the filer’s perspective," she said. “The policy memo isn’t a significant pivot, but how it’s used could be a significant pivot."

Changes to federal policies pave way for sudden visa denials, deportation

A pair of policy memos circulated recently by U.S. Citizenship and Immigration Services may pave the way for sudden visa denials and referrals for deportation, immigration attorneys say.

The most recent memo, released last week, changes previous federal policy by allowing immigration officials to reject visa applications immediately if there is missing or inaccurate information. Prior guidance issued in 2013 required officials to serve "Requests for Evidence" to fix any gaps in paperwork unless there was "no possibility" that the mistake could be corrected, and then "Notices of Intent to Deny" were issued, giving 30 day warnings to applicants that they would likely be rejected.   

These policies apply to applications and renewals of both temporary and permanent resident status visas, which foreign nationals must obtain in order to legally live and work in the United States. Visa applications are often complex, with a lengthy list of evidence required to tie a person to employment or families in the United States.

The new policy, which will take effect Sept. 11, allows USCIS to "deny the (application) for failure to establish eligibility based on lack of required initial evidence."

Anastasia Tonello, president of the American Immigration Lawyers Association, said that change, coupled with a previous one issued June 28, means visa applicants can suddenly find themselves on a track toward deportation. The June 28 memorandum allows Customs to refer applicants for deportation as soon as their visas are denied. Rejected applicants are also left with no legal immigration status.

"The big picture here is they're attacking legal immigration," Tonello said during a phone call with CBS News. 

"It's more important than ever to file as early as possible to give yourself the best chance of having your case adjudicated before your visa expires," Tonello said. "Make sure the files are accurate. Before it was just a hassle because we lost however much time fixing mistakes, but now it could mean loss of residency."

She also noted that another USCIS policy memo released in October means Customs officials no longer have to consider previous successful visa applications when considering current ones.

In an email to CBS News, USCIS Spokesman Michael Bars and USCIS Director L. Francis Cissna defended the new policies and claimed the previous presidential administration prevented officials from weeding out fraudulent applications.

"The 2013 policy change under president Obama was among the many abuses of the immigration process, tying the hands of adjudicators and imposing a massive loophole for illegitimate petitioners to exploit our system," Bars said. "Under the law, the burden of proof is on an applicant, petitioner, or requestor to establish eligibility – not the other way around. 

Cissna said the June 28 policy memo is necessary to meet the demands of the current president, who has taken a hard line on immigration.

"This updated policy equips USCIS officers with clear guidance they need and deserve to support the enforcement priorities established by the president, keep our communities safe, and protect the integrity of our immigration system from those seeking to exploit it," Cissna said.

But California-based immigration attorney David Acalin accused the administration of seeking to deport legal applicants for minor technicalities.

"It's just a smokescreen. If every "t" is not crossed, and every "i" is not dotted, they can deny the claim," Acalin said.