29 August 2018
Category News Room
29 August 2018,
 0

A walk down memory lane

Below is timeline of key administrative changes we’ve seen to our immigration programs. The net takeaway – things take longer and are more difficult than before.  We continue to monitor the changes we see, and when needed shift our approach to support our clients in the best way possible.

  • January 22nd marked the Trump administration’s implementation of a 90 day federal hiring freeze which significantly hampered USCIS’ ability to hire new workers
  • January 27th marked the introduction of the first travel ban, and the start of administrative tinkering with immigration programs (that Travel Ban was reissued in March 2017 after it was contested, and a third version was again issued in July 2017 which was ultimately upheld by the U.S. Supreme Court last December)
  • January 2017 – Administration eliminates Obama era priorities memo confirming that all undocumented individuals are potentially subject to removal
  • March 6, 2017 – Premium Processing is suspended for all H-1B processing. In 2018 they target only H-1B cap cases
  • June 22, 2017 the Administration lifts visa processing standards allowing consulates to have more time to schedule appointments and review applications, thus delaying visa issuance
  • Summer of 2017 attorneys started to receive an uptick in RFEs related to H-1B filings and new RFEs related to wage level I wages, and questioning classification of SOC used. The increase in RFEs in NIV filings was reported as 4 times Obama levels and appears to be in response to “Buy American, Hire American” April 20, 2017 EO
  • July 2017 – just before its implementation of the International Entrepreneur Advance Parole rule the Administration attempts to delay implementation until 2018. Interested parties sue and the Administration loses but in the intervening period the Administration files a Federal Register notice that voids the rule
  • August 2017 as denials of Advance Parole requests are issued for clients who travel it becomes apparent USCIS shifted its policy without first advising the field. Now applicants for Advance Parole automatically abandon those applications by simply leaving the U.S.
  • On October 23, 2017 USCIS tore up a prior memo related to following precedent decisions – now USCIS adjudicators are no longer bound by the original decision to approve a case and can ask for additional evidence or deny an extension request despite originally receiving an approval in that same category and for the same job
  • On October 1, 2017, with the false pretense of making us safer, USCIS started issuing interview notices to employment based I-485 applicants. This marked the start of mandatory interviews at local offices before receiving an employment-based green card
  • February 22, 2018 USCIS releases a new memo related to third party placements and itineraries. This memo interprets both the law and regulation and was issued without any advance notice, although it had been clear to the field that USCIS had been applying new standards to third party placements since the fall of 2017 without releasing those standards. While we believe the guidance is ultra vires (meaning USCIS doesn’t have a right to apply it) and an obvious overreach we are required to follow it until it is rescinded or overturned by federal court litigation.
  • March 5, 2018 DACA was to end per a Presidential Order, however, the courts have thus far suspended the order and allowed current DACA recipients to continue to file for extension. The legal challenges continue and we expect the Supreme Court will decide this matter summer of 2019, so the clock is ticking on those holding DACA status
  • Summer 2018 new RFEs come out related to alternative wage surveys and wage level II surveys – they are triggered by the “Buy American, Hire American” EO. There are also new RFEs related to prior student status and other templates where USCIS questions every element of the filing
  • USCIS has reread their regulations and determined that continuing CPT at the same level or for more than a year is an issue for continuing status and they are now issuing RFEs on this basis
  • July 5, 2018 USCIS announces new guidance for issuance of Notice to Appear (NTA) in response to the January 25, 2017 EO – “Enhancing Public Safety in the Interior of the U.S.” An NTA is the first step in a removal process. If an individual is found to have either filed a fraudulent Petition, conducted a criminal act, or has received a non-immigrant Petition denial and is now “out of status” an NTA will be issued to refer the beneficiary to an immigration judge for removal – it interestingly notes fraudulent use of a public benefit as a ground (“USCIS will issue an NTA where, upon issuance of an unfavorable decision on an application, petition, or benefit request, the alien is not lawfully present in the U.S.”). Can only use “prosecutorial discretion” to not issue NTA in limited circumstances. This PM is postponed until internal guidance is provided
  • On July 13, 2018 DHS announced that in order to combat frivolous filings USCIS can now simply deny case filings without first issuing a Request for Additional Evidence or Notice of Intent to Deny. This new policy goes into effect on September 11, 2018
  • August 9, 2018 marks the day new status limits are placed on students that make it easier to be adjudged to be out of status – students who have violated their status, if found to have done so after August 9, 2018 can be deemed to have accrued unlawful presence from August 9, 2018 until the present and may be subjected to removal
  • As of today, the President has threatened the cancellation of NAFTA publicly more than a ½ dozen times, and members of the executive have also echoed those threats. Earlier this week he announced a bilateral treaty with Mexico that leaves Canada alone. This would again threaten the TN category and trade relationships to the north
  • We’ve been promised the H-4 EAD would be eliminated as an option on multiple occasions and have yet to receive any final regulations
  • New audit processes have been witnessed where both DOS and USCIS are emailing inquiries to counsel and it is clearly the case that they are monitoring certain case types. Additionally the government has promised to step up I-9 audits
  • On August 28, 2018 DHS announced that it was expanding the suspension of H-1B Premium Processing endangering the employment of certain F-1 status holders and ensuring an inordinate delay for Cap cases. This expansion also targets new hire transfers and coupled with the NTA memo and ability of USCIS officers to forego the RFE process before denying a Petition, will send a chill through certain H-1B applicants who want to change jobs, but don’t want to risk a denial

 

 

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