Tag Archives: USCIS

What is New with L-1 Blanket Consular Adjudications  – Expect Tougher Standards Ahead

The immigration regulations allow employees of large, multinational corporations that have an approved L-1 blanket petition, to apply directly at U.S. Consulates abroad for L-1 intra-company transfer visas to the U.S.  This has been a fast, cost effective, and often times, easier and preferred method for employees who qualify to be transferred to the U.S. in L-1 nonimmigrant status.  The standards for L-1 blanket adjudication at the U.S. Consulate have now been changed and seem to have become even stricter than for those seeking L-1 status through individual petitions filed with the U.S. Citizenship and Immigration Service (USCIS) – their standards have in practice also become tougher over the last 2 to 3 years, despite no recent regulatory changes.

The Consular L-1 adjudication process is detailed in the Foreign Affairs Manual (FAM), which includes a new, heightened adjudication standard for blanket L-1 applications.[1] This is a higher standard than articulated in the prior FAM section, which stated only that the application must be “clearly approvable.” The revised provision directs the Consular Officer to deny the L-1 visa if he/she “has any doubt” whether an applicant has established their L visa eligibility and if the “questions or issues cannot be resolved during the interview.” This is different than the former meaning of “clearly approvable”, which has been the longstanding standard for blanket L adjudications and has been interpreted to mean that the applicant needs to provide clear and convincing evidence of eligibility for the L-1 visa, or documentation that makes the purported fact “highly probably or reasonably certain.”

Interestingly, the term “clearly approvable” remains in the revised FAM section.  However, previously, the consular officers could issue an INA 221(g) refusal (aka administrative processing) notice and give the applicant an opportunity to submit further documentation to resolve the issue.  The new FAM section may eliminate this practice, as it states that the Officers “must deny the visa” if the issue cannot be resolved at the visa interview.  This is especially important, as U.S. Consulates around the world are beginning to reopen, and many potential or existing employees of large U.S. companies would likely be applying for blanket L visas at U.S. Consulates abroad in the coming months.  This also means that the applicant’s L-1 visa interview preparation will be crucial for the case outcome, given that this provision allows the Officers to deny the visa if they are not satisfied with the applicant’s answers and the application presented at the interview.

The alternative to consular filing is the filing of an L-1 individual petition with the USCIS, where the adjudication standard is “preponderance of the evidence” – i.e., the petitioner must establish that it is  more likely than not – that the beneficiary qualifies for the particular immigration benefit.  However, USCIS filings are generally more expensive, take longer and have, as indicated above, been subject to more scrutiny and requests for evidence, including more denials, in the past few years.

Given the anticipated increased scrutiny of blanket L applications at U.S. Consulates and the current USCIS adjudication climate, it is critical for employers and individuals to work closely with their immigration counsel to determine the best filing strategy for success, after careful analysis of the individual case circumstances.

[1] See 9 FAM 402.12-8, available at https://fam.state.gov/fam/09FAM/09FAM040212.html#M402_12_8_F

 

 

 

COVID-19 Immigration Agency Suspensions and Cancellations 3/29/2020 Update

The Duane Morris Immigration Team is dedicated to providing the most up to date information and zealous advocacy on behalf of our clients during the COVID-19 emergency.  Below we have compiled information from various U.S. agencies on all aspects of travel, USCIS appointments, ICE activities and Removal Proceedings. This post will be updated as changes develop. Duane Morris has developed a COVID-19 Strategy Team which is providing regular updates on all business and employment related matters impacted by the COVID -19 pandemic. A second webinar on Business Continuity Planning for a Pandemic will be held on Wednesday, March 18. To register, click here.

Continue reading COVID-19 Immigration Agency Suspensions and Cancellations 3/29/2020 Update

USCIS Announces I-9 and E-Verify Timing Waivers and Modifications in the wake of COVID-19

COVID-19 social distancing directives, State and Federal agency closures and remote work requirements have made it impossible for employers to comply with the normal I-9 and E-Verify regulations on timing and review of employee documents. To address these concerns, USCIS has announced several measures to extend time frames and loosen its normally strict requirements. In this blog, we discuss USCIS suspension of the I-9 requirement to review physical documents,  an automatic 60 day extension for all I-9 audit responses, acceptance of expired documents for new hires who are unable to update driver licenses and state IDs, as well as E-verify suspension of the 8 day response time for responding to Tentative Nonconfirmations. Continue reading USCIS Announces I-9 and E-Verify Timing Waivers and Modifications in the wake of COVID-19

USCIS Suspends Premium Processing for all I-129s and I-140s

USCIS announced at 2:19 PM on 3/20/2020 that Premium Processing services for I-129 (E-1, E-2, H-1B, H-2B, H-3, L-1A, L-1B, LZ, O-1, O-2, P-1, P-1S, P-2, P-2S, P-3, P-3S, Q-1, R-1, TN-1 and TN-2.) and I-140 (EB-1, EB-2 and EB-3) is suspended temporarily.  Like many of us, USCIS service center operations have gone remote, so it is impossible for the agency to keep up with the demand for premium processing of applications. Continue reading USCIS Suspends Premium Processing for all I-129s and I-140s

What is the new Public Charge Rule and what does it mean to applicants for immigration benefits in the U.S.?

Under the US immigration law, an individual who is likely at any time to become a public charge is inadmissible to the United States and ineligible to become a lawful permanent resident.  On February 24, 2020, the U.S. Citizenship and Immigration Services (USCIS) will implement  a new Inadmissibility on Public Charge Grounds rule, which significantly broadens  the immigration agency’s authority to determine whether individuals will become a public charge  and expands the inquiry to nonimmigrants seeking an extension or change of status.  The USCIS will implement the rule in all US states, except in Illinois, where the rule remains enjoined by a federal court as of Jan. 30, 2020. The final rule will apply only to applications and petitions postmarked (or submitted electronically) on or after Feb.24, 2020.

Individuals seeking permanent residence through the adjustment of status process will be subject to increased financial information and documentation requirements, and more scrutiny of their personal circumstances.  Under the rule, adjustment of status applicants will be reviewed under a “totality of circumstances” test that will take into account each applicant’s age, household size, income, financial liabilities, receipt of certain public benefits, health, and education and skills. Also, after February 24, 2020, adjustment applicants will be required to submit a report of their credit history and credit score, as well as detailed information about health insurance coverage. The USCIS will also require applicants to complete new Form I-944, Declaration of Self-Sufficiency. Importantly, refugees, asylees and other humanitarian or special immigrant categories of applicants are exempt from the new rule.

One of the biggest changes is that as of February 24, 2020, nonimmigrants seeking an extension or change of status, must satisfy a new public charge condition to be deemed eligible for their requested immigration benefit.  Specifically, nonimmigrant applicants will be required to disclose whether they have received or are certified to receive certain public benefits on or after February 24, 2020. In order to negatively affect the application, the individual must have received the benefits for more than 12 months within a 36-month period since obtaining their nonimmigrant status. Certain nonimmigrant categories, related to humanitarian and victim classifications, are exempt from the public benefits condition requirement.

Not all public benefits would lead to a public charge determination and USCIS guidance specifies that receipt of cash assistance for income maintenance (such as Supplemental Security Income (SSI), cash assistance from the Temporary Assistance for Needy Families (TANF) program and state or local cash assistance programs for income maintenance) could make a noncitizen inadmissible as a public charge if all other criteria are met. However, the mere receipt of these benefits does not automatically make an individual inadmissible, ineligible to adjust status to lawful permanent resident, or deportable on public charge grounds. Each determination is made on a case-by-case basis in the context of the totality of the circumstances. In addition, public assistance, including Medicaid, used to support individuals who reside in an institution for long-term care  (such as a nursing home or mental health institution) may also be considered as an adverse factor in the totality of the circumstances for purposes of public charge determinations. Short-term institutionalization for rehabilitation is not subject to public charge consideration.

Starting Feb. 3, 2020, the USCIS is expected to update its guidance, forms and submission instructions on its websitehttps://www.uscis.gov/news/fact-sheets/public-charge-fact-sheet.

Premium Processing Resumes for FY2019 Cap Subject H-1B Petitions

By:  Valentine Brown

On January 26, 2019, USCIS announced that Premium Processing will resume on January 28, 2019 for all cap-subject FY2019 H-1B petitions;  in other words, for any H-1B lottery application filed last April that is still pending with the agency. But shouldn’t all of those petitions have already been approved? Well, um…. yes. But wasn’t the employment start for all of those petitions October 1, 2018? Another, Yes. In spite of these facts there are several thousand  H-1B cap-subject petitions still un-adjudicated or waiting for a decision months after employers responded to USCIS requests for additional information. Better late than never, as the old adage goes.

The announcement means that employers who have any of those thousands of petitions still at the agency can upgrade them to premium processing and receive a decision or a request for additional information within 15 days. Employers who are currently compiling responses to requests for information can also submit their response with a premium processing upgrade and $1410 to obtain a decision on their petition within 15 days.

The USCIS announcement is only applicable to cap-subject FY2019 H-1B applications. Premium processing remains suspended for the following H-1B categories, at least until February 19, 2019.

  • H1B Extension Petitions that include changes to the original position
  • H1B Petitions where there is a change of employer
  • H1B Petitions that request amendments with changes to the original petition

The continued ban on premium processing, especially for petitions where there is a change of employer is burdensome to both employers and H-1B status holders. With current adjudications taking as long a six months and denial rates higher than ever, it is often too risky for an H-1B nonimmigrant to make an employer switch until the H-1B petition is approved, and for employers waiting six months or more for a new hire to start is untenable.

Premium processing continues to be available for H-1B cap exempt petitions filed by institutions of higher education, government research entities and some qualified non-profit organizations that file petitions at the California Service Center.  It is also still available for H-1B extension petitions where there are no changes or amendments. These are applications that are filed with the Nebraska Service Center.

USCIS states that the agency will update the availability of premium processing for other categories once the workload of the agency permits. It is unclear whether the original deadline for the lifting of the premium processing ban of February 19, 2019 will be honored, or whether the ban will be further extended.

I-9 Compliance More Important than Ever during E-Verify Outage

By: Valentine Brown

The government has been shut down for 29 days,  with no signs go reopening anytime soon. Although USCIS has continued to operate due to being self-funded by application filing fees, E-Verify’s funding was discontinued by the shutdown, so the system has been inoperable since December 22, 2018. For many employers, using E-Verify as part of an immigration compliance scheme is voluntary, however for federal contractors and employers in several states, E-Verify is mandatory. In either case, losing the availability of this valuable double check on employee eligibility to work leaves an employer relying on the I-9 process. Below are a few reminders to get employers through the shutdown and to make sure they are ready when the E-Verify system is back up and running:

Make copies of employee documents used for I-9 completion: To be sure, copying an employee’s identity documents is not required for the I-9 process, however it has increasingly become considered as a best practice for employers, especially in our new age of 6000+ ICE I-9 audits per year. (But remember, for E-Verify employers, photo matching  requires employers to make copies of green cards, work permits and U.S. passports when they are presented for verification purposes.) Keeping copies of documents with the I-9 form has several benefits in the shutdown context. At some point the government will reopen and the employee’s information will have to be inputted to the E-Verify system. Having copies of the employee’s documents will serve to ensure that the employer has the correct employee information, for submission and as a double check on the information entered on the I-9 form. Having copies will reduce the likelihood that the employer will have to go back to the employee for additional information once E-Verify is back up and running. Reducing the number of employee contacts during the I-9/E-Verify process reduces the opportunities for unwitting I-9 discrimination to occur, including document abuse and citizenship status discrimination.

Conduct careful review of all  documents presented for I-9 purposes: Without the E-Verify check available, employers will be relying on their own judgment as to the validity and veracity of immigration-related documents presented during the shutdown. While it is not necessary for employers to be a fake document expert, it is required that they review the presented documents to make sure they appear valid and relate to the person who is presenting them. Immigration documents, such as work permits and green cards have changed over the years, so determining what is a valid document is not always as easy as it seems it should be. In the M-274  Handbook for Employers, there are many samples of what the various immigration documents look like as well as descriptions of their security features. Employers should use information in the handbook to compare to documents presented if they have questions.

Store shutdown period I-9s together: Best practice is to store I-9s separately from employee files in order to ensure that information on the I-9 forms remains private and is not inadvertently, or purposely used to make employment decisions. I recommend three I-9 files: (1) active employees with no reverification required (2) active employees with reverification required (3) terminated employees stored in order by termination date. I would add another temporary category of I-9s prepared during the shutdown. This will allow employers to easily identify those I-9s that will have to be entered into E-Verify once it is back up and running. After the shutdown is over, the I-9s can be folded back into the three standing files as described above.

With no signs of stopping, the shutdown maybe with us for a while. Taking extra care now with your I-9 forms will ease the burden of catching up on E-Verify entries, once the system is back up and running.

 

 

USCIS Regulatory Proposals Aim to Improve Immigration Process for High-Skilled Foreign Workers

The White House is continuing to slowly roll out many of the 2014 promised changes to improve the U.S. immigration system.  New regulations,  published in the Federal Register on December 31, 2015 seek to modernize and improve certain employment-based immigrant and nonimmigrant visa programs for high-skilled foreign workers. Benefits to participants in those programs would include improved processes for U.S. employers seeking to sponsor and retain immigrant and non-immigrant workers; greater stability and job flexibility for such workers; and more transparency and consistency in the application of DHS policy.

Many of these changes are aimed at improving the ability of U.S. employers to hire and retain high-skilled foreign nationals who are already the beneficiaries of approved employment-based immigrant visa petitions and are waiting to become lawful permanent residents (LPRs), while also increasing employment flexibility for such workers. The proposed regulations would increase the ability of such workers to further their careers by accepting promotions, making position changes with current employers, changing employers, and pursuing other employment opportunities in the U.S. job market.

Some of the highlights of the proposed rule include:

Improved Job Portability with an Approved I-140:
The proposed rule would limit the grounds for automatic revocation of approved I-140 Petition for Immigrant Worker. Once an I-140 has been approved for 180 days or more, it will still be valid for purposes of retaining one’s priority date and extending one’s H-1B status, even if the employer subsequently withdraws the petition or the employer’s business shuts down. The exception to this rule would be cases of fraud, misrepresentation, and a few other limited situations.

One-Time Grace Periods
The proposed rule would authorize a one-time grace period for certain nonimmigrant workers of up to sixty (60) days after employment ends, or until the existing validity period ends, whichever is shorter. This grace period would apply to those in H-1B, E, L-1, and TN status. Similar flexibility already applies to F-1 nonimmigrant students and j-1 nonimmigrant exchange visitors.

Eligibility for Employment Authorization in Compelling Circumstances
The proposed rule would allow certain high-skilled individuals in the United States in H-1B, H-1B1, L-1, O-1, or E-3 nonimmigrant status who are the beneficiaries of an approved I-140 petition to apply for one year of restricted employment authorization if they:

  1. are unable to adjust status due to visa backlogs; and
  2. can demonstrate “compelling circumstances” which justify issuing an employment authorization document.

At this time, DHS has not defined the term “compelling circumstances,” however the proposed rule offers possible examples such as serious illnesses/disabilities or cases of employer retaliation. Accordingly, this benefit will likely only apply in very limited circumstances.

Automatic Extensions of EAD Work Authorization in Certain Circumstances
The proposed rule would amend the way USCIS processes applications for employment authorization to help prevent gaps in work authorization that are problematic for foreign nationals and their U.S. employers. Specifically, DHS is proposing to repeal the current regulations that require the issuance of interim EADs if the I-765 application for work authorization (“EAD”) has been pending more than 90 days. Under the new rule, USCIS will automatically extend the EAD for up to 180 days upon the timely filing of a renewal application for applicants who meet certain requirements. To be eligible for this benefit, the renewal application must be based on the same employment authorization category as the expiring EAD, among other requirements.

The proposed rule also clarifies various policies and procedures related to the adjudication of H-1B petitions, including extensions of status, determining cap exemptions, and counting workers under the H-1B visa cap.

USCIS is seeking public comment on the proposed rule through February 29, 2016. The proposed changes would take effect on the date indicated in the final rule once it is published in the Federal Register.

Special thanks to Christina Haines, Esq. for her assistance with this blog post.

Duane Morris Pro Bono Attorneys Step Up for Citizenship

On Saturday, September 19, 2015  Duane Morris attorneys in Philadelphia and Boca Raton offices assisted Legal Permanent Residents with their U.S. Citizenship applications. The annual event, Pro Bono Citizenship Day, is organized by the American Immigration Lawyers Association. Duane Morris has participated for the last 6 years.  It is estimated that there are 8.8 million Legal Permanent Residents who are eligible to naturalize in the United States, with 50,000 of those residing in Philadelphia.  To learn more about the Philadelphia event, read Valentine Brown’s article that appeared in the Legal Intelligencer on Friday, September 19, 2015.

New Cut Off Date on Visa Bulletin Brings Welcome Relief for Immigrants

The  recent changes, to  the State Department’s Cut Off Date system for determining who can file their adjustment of status applications and when they can be filed, announced in the October 2015 Visa Bulletin brings welcome relief to many categories of immigrants who often wait in long queues before they are able to submit their adjustment of status applications. Continue reading New Cut Off Date on Visa Bulletin Brings Welcome Relief for Immigrants