Visa Lawyer Blog

Articles Posted in RFEs

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Welcome back to Visalawyerblog! We have an important announcement for applicants who have or may receive a request for evidence, notice of intent to deny, or a related document of such kind, between March 1, 2020 and January 31, 2021.

Today, December 18, 2020, USCIS announced that it will extend its flexibility policy and continue to grant applicants an additional 60 calendar days after the response deadline indicated on the notice or request, to submit a response to a request or notice, provided the request or notice was issued by USCIS between March 1, 2020 and January 31, 2021.

What documents qualify for this flexibility in responding?

Applicants who received any of the below mentioned documents dated between March 1, 2020 and January 31, 2020 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 blog post, we celebrate a client’s recent success story and share with you how our office was able to successfully obtain an O-1A visa approval for a jiu jitsu athlete of extraordinary ability.

First, let’s go over the O-1A visa process for individuals of extraordinary ability.

The O-1A is a perfect fit for those who can demonstrate a sustained level of national or international acclaim, as well as recognition for achievements received in their field of expertise. An O-1A applicant must demonstrate that he or she is one of a small percentage of individuals who has risen to the very top of his or her field, and that he or she will work in an area of extraordinary ability.

It is important to note that an O-1A applicant may not self-petition for their visa. A valid employer-employee relationship must exist, and the employer must petition for the applicant’s visa by filing Form I-129 with USCIS. Alternatively, a U.S. agent may file as a petitioner for an O-1 beneficiary if they are the actual employer of the beneficiary, the representative of both the employer or beneficiary, or authorized by the employer to act in place of the employer as its agent.

In general, three of eight criteria must be satisfied to successfully obtain an O-1A visa.

These criteria are as follows:

(1) Documentation of the alien’s receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor;

(2) Documentation of the alien’s membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;

(3) Published material in professional or major trade publications or major media about the alien, relating to the alien’s work in the field for which classification is sought, which shall include the title, date, and author of such published material, and any necessary translation;

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The public charge rule is back. On September 11, 2020, the U.S. Court of Appeals for the Second Circuit issued a decision that allows the Department of Homeland Security to resume enforcement of the Public Charge Ground of Inadmissibility final rule on a nationwide basis, including in New York, Connecticut, and Vermont.

The court “stayed” or suspended the grant of a preliminary injunction issued on July 29, 2020 by the United States District Court for the Southern District of New York, meaning that the United States Citizenship and Immigration Services (USCIS) can now require Form I-944 in all jurisdictions, and continue to enforce the public charge rule nationwide.

Why the ruling?

The appellate court ruling comes after the Department of Homeland Security appealed the July 29th preliminary injunction preventing the enforcement of the public charge rule to residents of New York, Connecticut, and Vermont. The government asked the court to “stay” or suspend the preliminary injunction, pending resolution of the appeal before the courts.

A three judge panel ruled in favor of the government finding that they were likely to succeed on the merits of the case and in any event the judges said that it was doubtful that the district court had jurisdiction to issue the preliminary injunction in the first place, given that the court of appeals was considering the issues raised by the public charge rule.

What does this mean for applicants?

Pursuant to the appellate court’s order, the United States Citizenship and Immigration Services (USCIS) will resume enforcement and implementation of the Public Charge Grounds Final Rule nationwide. The government is no longer prevented from enforcing the rule during the coronavirus (COVID-19) pandemic.

USCIS has stated on their webpage that they will apply the public charge final rule to all applications and petitions postmarked or submitted electronically on or after Feb. 24, 2020, including pending applications and petitions. For applications or petitions sent by commercial courier (for example, UPS, FedEx, or DHL), USCIS will use the date on the courier receipt as the postmark date.

USCIS will not re-adjudicate any applications and petitions that were approved following the issuance of the July 29, 2020, injunction continuing until the date of the notice (September 22, 2020).

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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 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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There can be no doubt that the Trump era has dealt a devastating blow to immigration, but perhaps the most affected individuals have been H-1B visa hopefuls and their employers.

Early on during the President’s administration, the President advocated for and implemented some of the most disastrous immigration policies ever seen—particularly because of the restrictive effect these polices have had in drastically reducing visa approvals for temporary workers.

Across the board, our office witnessed a staggering increase in the issuance of requests for evidence, and a high rate of denials for H-1B visa worker petitions, despite a highly qualified applicant base.

While these petitions were easily approved in past administrations, the reality began to set in that things would be much different under President Trump. Data has shown that from fiscal year 2015 to fiscal year 2019, H-1B denial rates for new H-1B petitions increased drastically from 6 percent to 21 percent., while denial rates for H-1B visa extensions increased to 12 percent in fiscal year 2019.

Where did it all begin?

USCIS began to aggressively limit H-1B visa approvals following the passage of the President’s executive order “Buy American and Hire American” signed on April 18, 2017.

With this order, the President single-handedly targeted one of the most sought-after visa programs in the United States—the H-1B visa program for highly-skilled temporary foreign workers. The order specifically directed the Attorney General and Secretaries of State, Labor, and Homeland Security to suggest reforms to ensure that H-1B visas would only be approved for the most-skilled or highest-paid workers.

While the President’s restrictive policies on immigration gained him a loyal following, they ultimately narrowed the playing field significantly for prospective H-1B workers.

Buy American and Hire American effectively gave the Department of Homeland Security—and by extension the United States Citizenship and Immigration Services—a broad range of power to develop and enforce restrictive policies limiting the issuance of H-1B visas.

Thereafter, USCIS went to work producing rule-making, policy memoranda, and implementing operational changes to carry out the President’s agenda with the goal of drastically limiting approvals for H-1B workers.

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A new decision issued by a federal judge in the case Itserve Alliance Inc., et al., v. L. Francis Cissna, will dramatically change the way that the United States Citizenship and Immigration Services (USCIS) adjudicates H-1B petitions for Information Technology companies.

The new ruling invalidates key provisions of the CIS 2010 Guidance Memorandum (also known as the Neufeld Memo) and the CIS 2018 Policy Memorandum (PM-602-0157) for two reasons.

Firstly, the court found that the policies outlined in these memorandums were inconsistent with previous regulations that were lawfully passed by the government through the formal notice-and-comment rule-making process, as required by law.

Secondly, the court found that USCIS violated the law when it abandoned previous regulations and began applying their own policies without first going through the required formal notice-and-rulemaking process. Since these policies were not passed through the formal rule-making process, their application was found to be unlawful and unenforceable.

Background

During the start of the Trump administration, USCIS began adopting a narrow policy designed to limit the number of H-1B petitions that would be approved. Throughout this period, our office saw the highest number of requests for evidence and denial rates ever experienced in over a decade in practice. Other immigration attorneys across the country observed the same trends.

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In this post we bring you the latest immigration related COVID-19 updates. During this difficult time, we would like to extend our heartfelt regards to you and your families. We hope you are staying safe and taking the necessary precautions to prevent the spread of COVID-19. The sooner we abide by government measures, the sooner we can overcome this pandemic as a Nation. Additionally, please remember that although our office is closed to the public, we continue to function behind the scenes to file your petitions on a timely basis. If you have any questions regarding your immigration options, or your currently pending case, we would be glad to assist you by telephone, Zoom, or Skype.

President Extends Federal Social Distancing Guidelines to April 30

This past Sunday, March 29, 2020, the President of the United States extended the Nation’s social distancing guidelines for another 30 days, following warnings from health advisers of the serious consequences that could result if Americans were allowed to return to normal life. Pursuant to this order, social time will continue to be limited only to necessary outings such as grocery shopping, medical appointments, etc. until April 30.

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In the midst of the ongoing Coronavirus (COVID 19) pandemic, USCIS reminds applicants and petitioners impacted by the pandemic that they can seek certain types of discretionary relief on a case-by-case basis.

Relief for Individuals Seeking Extensions/Change of Status

Special relief is available to individuals who were unable to file an extension or change of status petition before the end of their authorized stay expired, if a special situation prevented the individual’s departure and/or filing.

According to USCIS, “when applying for an extension or change of status due to a special situation that prevented your planned and timely departure,” the agency “may take into consideration how the special situation prevented your departure.”

In addition, if an applicant was not able to apply for an extension or change of status before their authorized period of admission expired, USCIS in their discretion may excuse the delay if it was due to extraordinary circumstances beyond the applicant’s control. An applicant in such a situation should be prepared to provide documentary evidence of those extraordinary circumstances. Depending on the applicant’s situation, the types of evidence that can be provided will vary.

Relief for F-1 Students Based on Severe Economic Hardship Caused by Unforeseen Circumstances

F-1 students who are experiencing severe economic hardship because of unforeseen circumstances beyond their control (such as those impacted by the COVID 19 pandemic) may request employment authorization to work off-campus (if they meet certain regulatory requirements) by filing Form I-765 Application for Employment Authorization along with Form I-20, and supporting materials. See 8 CFR 214.2(f)(9).

The student’s Form I-20 must include the employment page completed by your Designated School Official, certifying your eligibility for off-campus employment due to severe economic hardship caused by unforeseen circumstances beyond your control.

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