On October 23, USCIS issued a policy memorandum rescinding guidance regarding deference to prior approvals. The rescinded memos, issued in 2004 and 2015, directed adjudicators who were adjudicating extension petitions involving the same parties and underlying facts to defer to prior determinations of eligibility except in limited circumstances (usually in the case of fraud/misrepresentation/change in circumstances). In its explanation as to the policy change, USCIS explained that deferring to prior approvals improperly placed the burden on USCIS to assess the underlying facts when, instead, the burden must always remain on the petitioner to prove eligibility.
The practical effect of this memorandum is that when an employer seeks an extension of H or L status for one of its employees, USCIS will no longer grant approval of the extension simply because the initial petition was approved and the facts remain the same. Prior to this announcement we were already encountering some level of hostility from USCIS adjudicators who were asking questions on matters that may have been proven years earlier. We expect that we need to include even more documentation and argument in extension filings as a result and we anticipate this may lead to longer processing times for extensions. There is also the additional likely outcome that petitions which were initially approved could receive a Request for Evidence or even possibly a denial despite the existence of prior approvals.
In recent updates we did highlight how the volume of RFEs for Cap cases were significant during the past 2-3 months. In general the practice of business immigration law has changed dramatically over the last five years and the size of applications has grown significantly – they do say a picture tells a thousand words – earlier this week we filed nearly 2000 pages of filings in one day! This pictures give you a sense of how thick these cases are getting and thus how complex these cases have become.
In our September 29, 2017 news update, we discussed President Trump’s most recent travel ban, which imposes travel restrictions on foreign nationals of certain countries. There have been several significant developments since this travel ban was issued.
In mid-October, federal judges in Hawaii and Maryland issued nationwide injunctions blocking much of the new travel ban. The injunctions were issued on similar grounds as President Trump’s previous travel bans, with the judges’ finding that the travel ban unconstitutionally discriminates against Muslims and plainly discriminates based on nationality. Both injunctions, however, left intact travel restrictions imposed on foreign nationals from North Korea and certain diplomatic officials from Venezuela. The Hawaii decision was appealed to the 9th Circuit Court of Appeals, which will hear the case on December 6. On October 24, the Supreme Court announced that it would not take up any cases on the travel ban at this time, on the ground that the key provisions of President Trump’s March executive order have now expired.
Also on October 24, President Trump issued an Executive Order suspending all refugee resettlement for 90 days for individuals from 11 countries, nine of which are Muslim majority nations. A challenge to this refugee ban was filed in D.C. federal court on November 8.
USCIS has learned that some employers have been receiving scam emails that appear to come from USCIS requesting Form I-9 information. These scam emails come from a fraudulent email address, firstname.lastname@example.org, which is not a USCIS email address. The body of the email may contain USCIS and Office of the Inspector General labels, company addresses, and a fraudulent download button that links to a non-government web site.
Employers must have a Form I-9 on file for every employee who is required to complete one, and these forms must be retained for a certain period of time. However, employers are not required to submit I-9s to USCIS, and USCIS does not request such forms via email.
USCIS warns all employers not to respond to these emails or click on any links within them. USCIS also advises any employer who believes that he or she has received such an email to report it to the Federal Trade Commission, and employers who are unsure as to whether an email is a scam may forward it to the USCIS webmaster for review.
The December visa bulletin continues to project the EB-1 category as current for all countries. In the EB-2 category, China moved forward several weeks to July 1, 2013, and India progressed almost a month to November 1, 2008. EB-3 China progressed to March 8, 2014, while EB-3 India and EB-3 Philippines remained the same at October 15, 2006 and January 15, 2016, respectively. With these general exceptions the majority of other categories are current at present.
** 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 **