USCIS announced on September 18, 2017 that is was immediately reinstating H-1B Premium Processing service for cases currently under review that were filed against the current H-1B Cap. However, Premium Processing has not yet been reinstated for new hires in H-1 status or for extension of H-1 filings. Effective immediately, USCIS will accept requests to upgrade current pending cases to Premium Processing and that will force them to issue a decision within 15 days of receipt of the request. For certain H-1B filings, specifically those where the person is out of the country or subject to a cap gap period that will expire on September 30, 2017, the option to force USCIS to speed up is useful. We will notify those clients who may immediately benefit from an upgrade filing, and will of course pay attention to when USCIS further opens up Premium Processing to H-1 transfers and extension applications. You may read the USCIS announcement here.
On Tuesday, September 5, 2017, President Trump announced that he was rescinding former President Obama’s 2012 executive order on Deferred Action for Childhood Arrivals (“DACA”). DACA provided deportation relief and work authorization for certain unauthorized immigrants who were brought to the United States as children and met other eligibility requirements. Since 2012, almost 800,000 immigrants have received benefits under DACA.
The rescission of DACA will not automatically terminate the status of DACA recipients; rather, the Department of Homeland Security will “phase out” DACA over a period of six months with the following actions:
There are currently four bills in Congress that would offer some sort of protection for DACA recipients and similarly situated immigrants. Additionally, Democratic leaders in Congress have discussed with President Trump a possible compromise that would provide for protection for DACA recipients while increasing border security.
In the meantime, DACA recipients are encouraged to seek legal advice regarding what to do after their DACA authorization expires. Brown Immigration Law has already been in contact with our DACA clients and we are working with them to explore their options.
USCIS confirmed at the end of August that it will begin implementing mandatory in-person interviews for all persons adjusting status from temporary work visas to employer-sponsored green cards. The policy will go into effect October 1, the beginning of the new fiscal year. We are continually monitoring how USCIS will begin phasing in this new policy. USCIS has yet to clarify whether all pending Adjustment of Status (AOS) applicants should expect to receive interview notices or if only those applications received after October 1 will be subject to the new policy. However, the language of the August announcement, although imprecise, suggests that any pending employment-based AOS applications will be required to attend an in-person interview. For those who will be required to attend an interview, we will schedule a preparatory call prior to the interview, and we will notify clients right away when Notice of Interviews are received from USCIS.
As we noted earlier, this new policy, although legal and available, will not advance our security interests, but will instead simply cause additional delays in the green card process. We will advise as more information becomes available.
It was reported this week that the Department of State has received new guidance from headquarters confirming that individuals who seek a visa for one reason, and instead use it for another reason within 90 days of entry, will be viewed as having misrepresented their original reasons for the visa and such a misrepresentation can be used as a reason to deny future visas. The prior guidance from Department of State was that those who entered for a different purpose must wait a month before changing their intent. As an example, if someone entered as a visitor and then immediately filed for a work authorized status, and then started working pursuant to that status, they would in the future face possible visa denial. Given this new guidance, we will be judicious in dealing with these types of scenarios. In our experience, this scenario is very rare and there are clear opportunities to work around this guidance. While we appreciate that a U.S. visa is a benefit and not a right, this rule change has the appearance of being a tough new measure, when in actual practice it is unlikely to impact very few individuals.
The projections in the October Visa Bulletin from the Department of State show that the EB-1 category will be current for all countries. EB-2 moved up a week to May 22, 2013 for China and up to September 15, 2008 for India. EB-2 Philippines is listed as current. EB-3 China saw huge movement as it leapt forward an entire decade to January 1, 2014. EB-3 for India is October 15, 2006, while the Philippines moved up a month to December 1, 2015.
NEW HIRE COMPLIANCE: I-9 AND E-VERIFY
USCIS just released a revised version of Form I-9, making now a great time to review your new hire procedures to ensure you’re maintaining compliance. In this webinar, Dave will help you navigate immigration-specific issues that will affect how your complete Form I-9 for your foreign national employees. Additionally, you will explore the pros and cons of registering for E-Verify and some common mistakes made when confirming work authorization through E-Verify.
9/21/17 @ 2pm EST / 1pm CST / 11am PST
** 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 **