Visa Lawyer Blog

Articles Posted in Policy

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Welcome back to Visalawyerblog! In today’s post, we discuss a newly released final rule announced by the United States Citizenship and Immigration Services (USCIS) on January 7, 2021.

The new rule entitled “Modification of Registration Requirement for Petitioners Seeking to File Cap-Subject H-1B Petitions,” will modify the H-1B cap selection process, amend current lottery procedures, and prioritize wages to ensure H-1B visas are awarded only to the most highly skilled foreign workers according to a new wage level selection process.

According to USCIS this new rule will only affect H-1B cap-subject petitions. It will be enforced against both the H-1B regular cap and the H-1B advanced degree exemption beginning March 9, 2021 (its effective date).

The final rule is scheduled to be published on January 8, 2021, however an advance copy has already been posted in the Federal Register for review.

Click here to view the advance copy.

When does the final rule become effective?

The final rule will become effective 60 days after its date of publication in the Federal Register (falling on March 9, 2021).

What are some of the highlights of this new rule?

The USCIS final rule creates a wage-based selection process for H-1B registrations, instead of a randomized computer generated process which is currently in place.

Ranking by Wage Level

DHS will amend regulations governing the process by which USCIS selects H-1B registrations for the filing of H-1B cap-subject petitions by generally first selecting registrations based on the highest Occupational Employment Statistics (OES) prevailing wage level indicated on the petition, where the proffered wage equals or exceeds the relevant Standard Occupational Classification (SOC) code and area(s) of intended employment, beginning with OES wage level IV and proceeding in descending order with OES wage levels III, II, and I.

The proffered wage is the wage that the employer intends to pay the beneficiary.

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Welcome to the start of a new week! In this blog post we discuss an exciting new announcement and a quick reminder regarding upcoming increases in filing fees.

USCIS Announces Extension of Flexibility for RFE, NOID, and Similar Responses

On September 11, 2020, the United States Citizenship and Immigration Services (USCIS) extended its previous policy granting applicants additional time to respond to requests for evidence, notices of intent to deny, and such similar notices.

Specifically, USCIS has stated that an applicant who has received a request, notice or decision dated between March 1, 2020 and January 1, 2021, may respond to such request or notice within 60 calendar days after the due date/deadline provided in the notice or request.

This flexibility is granted for the following types of notices, so long as the notice or request is dated between March 1, 2020 and January 1, 2021:

  • Requests for Evidence;
  • Continuations to Request Evidence (N-14);
  • Notices of Intent to Deny;
  • Notices of Intent to Revoke;
  • Notices of Intent to Rescind and Notices of Intent to Terminate regional investment centers;
  • Motions to Reopen an N-400 Pursuant to 8 CFR 335.5, Receipt of Derogatory Information After Grant;
  • Filing date requirements for Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings (Under Section 336 of the INA); or
  • Filing date requirements for Form I-290B, Notice of Appeal or Motion.

This flexibility has been provided to allow applicants the opportunity to gather important documentation needed to respond to the request or notice, given the extraordinary delays applicants have been facing in obtaining documents during the Coronavirus pandemic.

This policy ensures that USCIS will not take any adverse action on a case without first considering a response to the request or notice issued to the applicant.

USCIS will also consider a Form N-336 and Form I-290B “received” up to 60 calendar days from the date of the decision, before taking any action.

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We would like to wish our readers a very great start of the week. In this blog post, we will be covering recent and exciting developments in immigration law.

K-1 Visa Applicants

We have great news for K-1 fiancé visa applicants. Today, August 31, 2020, the Department of State issued an important announcement for K visa applicants. Effective August 28, 2020, the Department of State has given Consular sections the authority to grant K visa cases “high priority.” This directive applies to Consulates and Embassies worldwide and gives Consular posts the discretion to prioritize the scheduling of K visa interviews, as country conditions allow during the Coronavirus pandemic.

DOS has encouraged applicants to check the website of their nearest U.S. Embassy or Consulate for updates on what services that post is currently able to offer.

Revalidating the I-129F Petition

DOS has also stated that while the I-129F Petition for Alien Fiancé(e) is valid for a period of four months, consular officials have the authority to revalidate the I-129F petition in four-month increments.

In addition, the announcement states that for most cases impacted by the suspension of routine visa services or COVID-19 travel restrictions, it will not be necessary to file a new I-129F petition.

Interview Waiver Eligibility for Certain Non-Immigrant Visa Applicants

The Department of State announced on August 25, 2020, that Consular officials at U.S. Embassies and Consulates abroad can temporarily waive the in-person interview requirement for individuals applying for a nonimmigrant visa in the same classification.

Previously, interview waiver eligibility was limited to applicants whose nonimmigrant visa expired within 12 months. The new announcement temporarily extends the expiration period to 24 months.

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We would like to inform our readers of very important information relating to the Deferred Action for Childhood Arrivals (DACA) program. Recently, the United States Citizenship and Immigration Services (USCIS) released a new memorandum that explains how the agency will handle new requests for DACA and advance parole requests in light of recent court rulings.

New DACA Requests Will Be Rejected

As clarified by the new memorandum, USCIS has confirmed that it will reject all initial DACA requests and associated applications for Employment Authorization Documents, and return all associated fees to applicants without prejudice. “Without prejudice” means that applicants may reapply for DACA in the future should USCIS choose to accept initial DACA requests at a later time.

DACA Renewal Requests Continue to Be Accepted for those Granted DACA in the past

As before, USCIS will continue to accept DACA renewal requests from aliens who were granted DACA at any time in the past.

In addition, USCIS will continue to accept requests for advance parole that are properly submitted for individuals who can demonstrate that their travel is for any of the following purposes: to support the national security interests of the United States, to support U.S. federal law enforcement interests, to obtain life-sustaining medical treatment not otherwise available to the alien in the U.S., or where travel is needed to support the immediate safety, wellbeing or care of an immediate relative, particularly minor children of the alien  (see below).

Please note that even with a valid advance parole document re-entry to the United States is not guaranteed.

DACA Renewals Limited to One-Year Duration

DACA renewal requests that are approved will receive a grant of deferred action and employment authorization for a period of no more than one year. For those that were previously issued a two-year employment authorization card that remains valid, USCIS will not be rescinding these two-year benefits. USCIS may only terminate an alien’s validly issued DACA for failure to continue to meet DACA criteria, including failure to warrant a favorable exercise of prosecutorial discretion.

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We have great news for our readers. On August 19, 2020, the United States Citizenship and Immigration Services (USCIS) issued an important announcement for applicants whose Form I-765 Application for Employment Authorization has been approved, but who have not yet received their employment authorization document (EAD card) by mail.

What’s this all about

Since the emergence of the Coronavirus outbreak, there has been significant delays affecting the production of certain Employment Authorization Documents also known as EAD cards, which permit an applicant to obtain lawful employment in the United States, a driver’s license, and other important documentation such as a Social Security number.

These delays have caused hardships for applicants and created additional obstacles to finding employment during an already difficult economic time.

The good news is that USCIS is providing temporary relief for applicants who have received an approval notice, but have not yet received an employment authorization document (EAD card) in the mail.

Due to the unprecedented and extraordinary circumstances caused by COVID-19, USCIS will allow foreign nationals to temporarily use their Form I-797 Notice of Action, with a notice date on or after December 1, 2019 through August 20, 2020, informing the applicant of the approval of their I-765 Application for Employment Authorization, as evidence of Form I-9, Employment Eligibility Verification.

In other words, individuals can now provide employers with the I-797 Notice of Action, receipt of approval of the Form I-765 Application for Employment Authorization, in order to qualify for lawful employment.

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We have great news for applicants who are issued a request for evidence, notice of intent to deny, or a related document, between March 1st and September 11th.

On July 1, 2020, USCIS announced that it will extend its flexibility policy and will continue to grant applicants an additional 60 calendar days after the response deadline indicated on the notice or request, to submit a response to the request or notice, provided the request or notice was issued by USCIS between March 1 and September 11.

What documents qualify for this flexibility in responding?

Applicants who received any of the below mentioned documents dated between March 1 and September 11th can take advantage of the additional 60 days to respond to the request or notice:

  • Requests for Evidence;
  • Continuations to Request Evidence (N-14);
  • Notices of Intent to Deny;
  • Notices of Intent to Revoke;
  • Notices of Intent to Rescind and Notices of Intent to Terminate regional investment centers;
  • Filing date requirements for Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings (Under Section 336 of the INA); or
  • Filing date requirements for Form I-290B, Notice of Appeal or Motion.

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Welcome back to Visalawyerblog! In this post we will discuss a few recent updates released by the United States Citizenship and Immigration Services (USCIS).

UPDATE: USCIS Extends Flexibility Policy for RFEs, NOIDs, I-290bs, and more

Due to the ongoing circumstances relating to COVID-19, USCIS will continue to provide flexibility in responding to certain deadline-oriented requests, provided the notice or decision requesting the additional evidence was issued between March 1st and July 1st.

What types of documents will USCIS provide flexibility for?

Flexibility will be provided for the following:

  • Requests for Evidence
  • Continuations to Request Evidence (N-14)
  • Notices of Intent to Deny
  • Notices of Intent to Revoke
  • Notices of Intent to Rescind and Notices of Intent to Terminate regional investment centers and
  • Filing date requirements for Form I-290B, Notice of Appeal or Motion

To reiterate, flexibility will only be granted for notices or decisions with an issuance date between March 1st and July 1st. Notices issued before March 1st or after July 1st will not receive this leniency.

When can I respond to my notice or decision?

USCIS will accept responses to any of the above notices or decisions if they are received within 60 calendar days after the response deadline set in the initial request or notice.

This will provide relief to individuals who need more time to acquire necessary documents requested by USCIS from offices and agencies that are currently closed due to COVID-19.

Military Personnel and Veterans Eligible to File Form N-400 Online

USCIS recently announced that U.S. service members and veterans can now apply for naturalization on Form N-400 online.

This is an exciting new development because these applicants will not only be able to file their application and documents electronically, they can also check the status of their case and receive notices from USCIS online. In addition, USCIS will be using previously submitted biometrics where available. Where biometrics are not available, a U.S. service member stationed outside the U.S., can submit two properly completed FD-258 fingerprint cards and two passport style photos taken by the military police, officials with DHS, the U.S. Embassy or Consulate.

Please note that aliens currently serving or who have served in the armed forces may be eligible for naturalization under special provisions of immigration law. These individuals would have their application fee waived.

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In this blog post we discuss the highlights of the newly updated Policy Manual guidance released by USCIS which addresses the Inadmissibility on Public Charge Grounds Final Rule. The Final Rule and guidance is effective as of February 24, 2020 and applies to all applications and petitions postmarked on or after February 24, 2020 (except for in the State of Illinois where the Final Rule remains enjoined by court order).

These highlights are broken down by volume. Volume 2 addresses public charge grounds of inadmissibility for non-immigrants, Volume 8 discusses the public charge ground of inadmissibility in great detail, and Volume 12 discusses how the public charge rule may apply to citizenship and naturalization applications postmarked on or after February 24, 2020.

Highlights:

Non-Immigrants Seeking Extension of Stay or Change of Status (Volume 2 Chapter 4)

This section of the policy guidance clarifies that although the public charge ground of inadmissibility does not apply to nonimmigrants seeking either an extension of stay (EOS) or change of status (COS) on Forms I-129 or Form I-539, these applicants are generally subject to the “public benefits condition,” unless specifically exempted by law.

What is the public benefits condition?

According to the policy manual, “the public benefits condition requires an applicant seeking EOS or COS on or after February 24, 2020 (postmarked or if applicable, submitted electronically on or after that date) to demonstrate that he or she has not received, since obtaining the nonimmigrant status he or she is seeking to extend or from which he or she seeks to change, one or more public benefits, or more than 12 months in the aggregate within any 36-month period (where, for instance, receipt of two public benefits in 1 month counts as 2 months).

USCIS only considers public benefits received on or after February 24, 2020 for petitions or applications postmarked (or, if applicable, submitted electronically) on or after that date.”

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In this blog post we answer your frequently asked questions regarding the public charge rule.

Overview:

On October 10, 2018, the Department of Homeland Security first published the final rule “Inadmissibility on Public Charge Grounds” which dramatically changes the way in which an individual is determined to be a “public charge.” Although five separate courts issued injunctions to stop the government from implementing the final rule, on January 27, 2020, the Supreme Court of the United States ruled in favor of the Trump administration, allowing the government to implement the public charge rule, except in the state of Illinois where a state-wide injunction remains in place.

The new regulations will make it more difficult for certain adjustment of status and immigrant visa applicants to prove that they are not likely to become a public charge to the United States government.

The following frequently asked questions have been prepared to better inform our readers and address concerns regarding the effect of the public charge rule.

Q: When will the public charge rule take effect?

A: Shortly after the Supreme Court’s ruling, USCIS formally announced on its website that the public charge rule will affect all applications for adjustment of status (green card applications) postmarked on or after February 24, 2020 (except in the state of Illinois, where the rule remains enjoined by a federal court).

Q: Who does the public charge rule apply to?

A: In general, all applicants for admission to the United States are subject to the public charge ground of inadmissibility under INA § 212(a)(4) unless specifically exempted.

The following non-citizens are affected by the public charge rule:

  • Applicants for adjustment of status in the United States
  • Applicants for an immigrant visa abroad
  • Applicants for a nonimmigrant visa abroad
  • Applicants for admission at the U.S. border who have been granted an immigrant or nonimmigrant visa, and
  • Nonimmigrants applying for an extension or change of status within the United States (new policy under the final rule).

Applicants seeking lawful permanent resident status (applicants for adjustment of status) based on a family relationship are most affected by the public charge rule.

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The Trump administration is ready to announce new restrictions that will make it more difficult for foreign nationals to give birth in the United States, striking a blow to the “birth tourism” industry.

In a 2015 speech in Orlando, Florida the President told supporters, “the birthright citizenship, the anchor baby …it’s over, not going to happen.” Tomorrow, the President will make good on his promise.

On January 24, 2020, the government will publish a final rule in the Federal Register that will be effective as of that date, amending current B visa regulations to establish a rebuttable presumption that a B nonimmigrant visa applicant, who a consular official has reason to believe will give birth during her stay in the United States, is traveling for the primary purpose of obtaining U.S. Citizenship for the child.

Accordingly, an applicant who fails to overcome the presumption will be denied a B nonimmigrant visa application.

This change in regulation will apply specifically to the B nonimmigrant visa classification for temporary visitors for pleasure.

An advance copy of the government’s final rule has been released which establishes that “travel to the United States with the primary purpose of obtaining U.S. citizenship for a child by giving birth in the United States is an impermissible basis for the issuance of a B nonimmigrant visa.”

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