On May 3, 2019, in Guilford College et al. v. DHS, a Federal District Judge in North Carolina issued a nationwide preliminary injunction stopping DHS from enforcing its August 9, 2018 “unlawful presence” policy memo for F, J or M nonimmigrants.
Before the August 9th policy memo, unlawful presence accrued after USCIS made a formal finding of status violation. After the memo, USCIS officers were instructed to find students or exchange visitors unlawfully present if they knowingly, or unknowingly, violated their status without any formal finding. As a result, F, J or M nonimmigrants were potentially subject to the 3- or 10-year admissions bar without their knowledge despite inadvertent violations such as failing to update their physical address, working more than the allotted hours, or a data entry error by a Designated School Official. Individuals who violate their status cannot not extend or change the terms of their temporary stay, and their only option is to depart the U.S and apply for a new visa. However, after they leave the U.S., they would potentially be unable to reenter due to the bar, if they accumulated more than 180 days of unlawful presence.
In support to the injunction, the Court found that the Plaintiffs were likely to succeed in their claims that the August 9th policy memo likely violated the rulemaking notice and comment procedures of the Administrative Procedure Act, and that the new calculation of unlawful presence conflicted with existing law. The injunction will remain in place, pending resolution of the case, likely later this summer.
On April 19, 2019, USCIS issued guidance clarifying that violation of federal controlled substance law, including for marijuana, “remains a conditional bar for naturalization, even where the conduct would not be an offense under state law.” Non-U.S. citizens are generally advised to avoid cannabis related activities, including participation in the marijuana industry, if naturalization is sought.
Though more than half the states allow medical marijuana usage, and 10 states having legalized recreational marijuana, under the federal Controlled Substances Act, there is no distinction between recreational and medical marijuana usage. It remains a Schedule I controlled substance. A conviction, or admission, of marijuana related activities constitutes a violation of federal law and will likely be a bar for naturalization. Various news outlets have reported that USCIS has denied immigrants’ citizenship applications because they work in the marijuana industry.
Please contact our team if you have concerns about potential immigration consequences for any cannabis related activities.
Starting this May, due to the desire to minimize the program impact resulting from the depletion of numeric-only I-94 numbers, Customs Border Patrol (“CBP”) has switched to alphanumeric I-94s. New I-94s will still contain 11 characters, starting with nine digits, a letter in the tenth position, and a digit in the eleventh position (e.g. 123456789A0). I-94s in the current 11-digit format will remain valid until the “Admit Until Date.”
The I-94 controls the period of authorized stay in addition to documenting current nonimmigrant status. Foreign nationals are reminded to review their I-94 record, utilizing CBP’s website, after each admission into the United States to confirm that they were properly admitted. If an error is noted, please contact our team member assisting with your immigration process.
Beginning May 1, Israeli Nationals are eligible to apply for the E-2 Treaty Investor Visa. The E-2 Visa is a nonimmigrant visa which allows a national of a treaty country, such as Israel, to be admitted when investing a substantial amount of capital in a new or existing business in the U.S. The E-2 applicant, whether investor or employee, must come to the U.S. as an executive, manager, or for essential purposes. All other E-2 regulatory requirements need to be met, including the establishment of a “real and operating” company and documenting that a qualifying investment has been made.
The E-2 Visa may be valid for up to five years, and it provides for flexibility and certain advantages when compared to other visas: the visa permits self-employment; it allows Israeli entities to transfer employees without a bachelor’s degree, as required by the H-1B; it allows Israeli entities to transfer employees that have been employed for less than one year, which is required for an L Visa; and, unlike a new office L-1 intracompany transfer, the E-2 does not require an extension after one year. Furthermore, unlike an H-1B derivate spouse, who has to wait until their spouse’s Form I-140, Immigrant Petition for Alien Worker, is approved before being able to file for work authorization, the E-2 derivative spouse may file for work authorization immediately after entering the U.S.
Please contact our team for any questions regarding an Israeli applicant’s eligibility for the E-2 Visa benefit. We’d be happy to set up a consultation, if needed.
For the first time in many months, the June 2019 Visa Bulletin experienced retrogression in terms of final action dates for some employment-based visa applications. EB-1 Worldwide has advanced to April 22, 2018. EB-1 China saw no movement. EB-1India retrogressed to January 01, 2015, and Philippines has advanced to April 22, 2018. EB-2 Worldwide is current. EB-2 China has advanced to August 1, 2016, while India has advanced to April 19, 2009; EB-2 Philippines is current. EB-3 Worldwide is current. EB-3 China has advanced to September 15, 2015, EB-3 India saw no movement, and EB-3 Philippines has advanced four months to November 1, 2018.
India’s retrogression is expected to be temporary. The priority date should return to at least February 22, 2017 this coming October, the first month of Fiscal Year 2020.
The Trump administration has proven it wants to make the immigration process more difficult. This seminar will focus on how we curate cases to avoid denial by the current administration, while also covering important considerations for staying in the U.S. after not being accepted in the H-1B cap lottery. Contingency planning is equally as important for our HR partners as it is for the individual employee, and this session will go into detail to ensure our clients and interested participants have a clear path forward if they are not accepted in the lottery. Additionally, in focusing on the administration’s new filing standards, David will explain how we approach cases, primarily in the H-1B context, to get USCIS adjudicators to say “yes” and avoid the current 24% H-1B denial rate.
As the green card system continues to face stress – because of government inaction, widespread use, and at times government overreach – change is being forced on many immigrants already in the system. We have general availability for EB-2 and EB-3 for “all other countries”, but now applicants face widespread waits in EB-1 and significant backlogs remain for for Indian and Chinese nationals EB-2 and EB-3. Recent dynamics have made the green card process more challenging and there may be new changes in the works as the system adapts to the stress it is under. David will speak about optimizing strategy and decreasing wait times while navigating the green card process. He’ll also talk about likely future shocks and how to address them while planning a long-term path forward. This is an opportunity to better understand a cohesive green card plan and how best to maximize successful outcomes in the least amount of time. This program is ideal for HR partners and managers who need to understand this process, and for employees who want to chart the best course forward.
** This newsletter/memo is provided for informational and discussion purposes only. It does not act as a substitute for direct legal contact on an individual basis **