Sam Adair Quoted in Quartz on H-1B Visa Spouses

Sam Adair was recently quoted in Ananya Bhattacharya’s Quartz article “In three months, H-1B spouses end up jobless — again.” In the article, Sam discusses the various hurdles that immigrants will face due to upcoming immigration reform, such as increased wait time for visas.
“For an H-4 spouse looking at a 10-year wait to get a green card, that is an incredibly long time to be forced to sit out of the job market,” said Sam.
To read the full article, click here.

USCIS Raises Premium Processing Fee

United States Citizenship and Immigration Services (USCIS) has announced that it will increase the premium processing fee for Form I-129 (Petition for a Nonimmigrant Worker) and Form I-140 (Immigrant Petition for Alien Workers). The fee will increase from $1,225 to $1,410, effective October 1st, 2018.

USCIS states that the fee is increasing in accordance with the percentage change in inflation (14.92%) since it was last changed in 2010. The agency’s Chief Financial Officer Joseph Moore explains that the adjustment will allow USCIS to hire more staff and make improvements in technology “to administer various immigration benefit requests more effectively and efficiently.”

For further information on how this may affect your business, please consult with our attorneys. For more frequent updates, please follow us on Twitter (@GrahamAdairLaw).

USCIS Extends Suspension of H-1B Petition Premium Processing

United States Citizenship and Immigration Services (USCIS) previously announced that premium processing for cap-subject H-1B petitions for fiscal year 2019 would be suspended until September 10, 2018. However, the suspension has been extended and expanded to cover other H-1B applications and is now expected to last until February 19, 2019.

With very limited exceptions, this new suspension of premium processing will cover almost all H-1B applications, except those outlined below. USCIS states that the suspension will help reduce overall H-1B processing times by prioritizing long-pending and time-sensitive cases. This affects all H-1B petitions filed at the Vermont and California Service Centers, excluding the exemptions noted below.

Exemptions
The premium processing suspension does not apply to the following:

  • Cap-exempt petitions that are filed exclusively at the California Service Center for beneficiaries that will be employed by a cap-exempt employer or a qualifying cap-exempt organization, institution, or entity.
  • Petitions that are filed exclusively at the Nebraska Service Center by an employer requesting “Continuation of previously approved employment without change with the same employer.”
  • H-1B cases that are currently filed under premium processing will continue to be processed until September 11, 2018. At that point, if they are not adjudicated, USCIS may suspend premium processing on those cases and refund the premium processing government filing fees.

Petitioners may submit a request to expedite their H-1B petition if they can provide documentation that they meet at least one of the criteria from the USCIS. If there is a need to expedite a case, please speak with your attorney to submit the expedite request. These requests will be reviewed on a case-by-case basis by the USCIS.

For further information on how this may affect your business, please consult with our attorneys. For more frequent updates, please follow us on Twitter (@GrahamAdairLaw).

USCIS Clarifies STEM OPT Extension Reporting & Training Guidelines

The STEM OPT Extension allows certain F-1 students who complete degrees in science, technology, engineering, and mathematics (STEM) to extend their optional practice training (OPT) by 24 months. USCIS has provided answers to Frequently Asked Questions (FAQs) about the STEM OPT Extension on their website, as well as the following clarifications:

Reporting 

Students and employers must report changes to materials to their Designated School Official (DSO) by filing a modified Form I-983. Students must also report changes, such as address and employer name, to their DSO within 10 business days. Employers must report the student’s termination of employment or departure to the DSO within 10 business days.

Training

Earlier this year, USCIS announced that the use of third-party training sites would be limited. However, clarifications show that employers still have some flexibility. Employers may train students at a third-party site as long as the employer demonstrates a bona fide employer-employee relationship with the student, and the employer is the one providing the training. The Department of Homeland Security (DHS) will review cases if necessary.

For further information on how this may affect your business, please consult with our attorneys. For more frequent updates, please follow us on Twitter (@GrahamAdairLaw).

China Abolishes Work Permit Requirements For Hong Kong, Taiwan & Macao Residents

What’s new?

The Chinese government announced that Hong Kong, Taiwan and Macao residents will no longer require a work permit to work for companies in mainland China.

Past laws

Residents of Hong Kong, Taiwan and Macao (THKM) had to undergo a time-consuming process in the past in order to prove that they were uniquely qualified for open job positions in mainland China. Additionally, the work permit system meant that THKM residents were required to apply for a new permit when switching employers and would be subject to the permit’s two-year renewal period. They will now no longer be subject to the same restrictions and requirements.

What’s next?

The Ministry of Human Resources and Social Security is expected to issue the regulations at the end of the month. This new rule is being implemented at the city-level and may differ in different regions.

For further information on how this may affect your business, please consult with our attorneys. For more frequent updates, please follow us on Twitter (@GrahamAdairLaw).

Sam Adair Quoted in Los Angeles Daily Journal, Law360 on Immigration Policy

Sam Adair recently spoke to leading legal publications the Los Angeles and San Francisco Daily Journal and Law360 on a recent U.S. Citizenship and Immigration Services memo which could have a major impact on immigration policy in the U.S. The memo states that immigration officials will be allowed to deny outright visa applications without a Request for Evidence (RFEs) or Notice of Intent to Deny (NOIDs). According to Sam, this change could mean that a high number of applications could be denied without a chance for attorneys to provide additional evidence on behalf of their clients.

“How they’re going to determine which application is frivolous versus which is substantive is going to be arbitrary,” said Sam.

USCIS Issues Two New Policy Guidance Updates

U.S. Citizenship and Immigration Services (USCIS) has adopted two new policies that extend the capacities of agency officials. One policy allows USCIS to refer foreign workers for removal proceedings in immigration court. As of July 5, 2018, USCIS can issue Notices To Appear (NTAs) for removal proceedings in instances of suspected crime, fraud, or unlawful presence in the U.S. after the rejection of an application or petition.

The second policy gives USCIS adjudicators full discretion to deny an application, petition, or request that is found to be missing initial or eligible evidence without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID). This policy applies to all applications, petitions, and requests filed after September 11, 2018, except for Deferred Action for Childhood Arrivals (DACA) adjudications.

Impact on Businesses

While USCIS now has the authority to issue NTAs and deny submissions without RFEs or NOIDs, this does not necessarily mean that they will in all cases. NTAs will most likely be issued in cases of strongly suspected fraud or crime, and submissions will most likely be rejected in cases with weak evidence for eligibility. Employers can also appeal USCIS decisions that they feel were made mistakenly.

However, employers should be vigilant and timely in compliance efforts for their visa sponsorship programs to minimize the possibility of worker removal. Employees denied for a visa extension are most at risk of entering removal proceedings and becoming unable to apply for further sponsorship opportunities. For this reason, we recommend filing extensions as far in advance as possible. Special attention should also be paid on cases where an employee is transferring from another company to avoid having the employee caught in between valid employer sponsorship.

This post does not constitute legal advice or an attorney-client relationship. Please contact your Graham Adair attorney for any concerns regarding these developments. For more frequent updates, follow us on Twitter (@GrahamAdairLaw).

European Union Settlement Scheme Updates

United Kingdom (UK) Immigration Minister Caroline Noakes announced on June 22, 2018 that changes to the EU Settlement Scheme will begin to take effect later this year, with full implementation expected by March 30, 2019. Affected EU citizens and their family members are eligible to apply for settled status after 5 years of residence in the UK.

Pre-Settled Status

Those who do not qualify for settled status will need to apply for “pre-settled status,” which allows EU citizens and their family members to stay in the UK for an additional 5 years under existing restrictions. Under this scheme, family members include: a spouse, civil partner, unmarried partner, dependent children or grandchildren, and dependent parents or grandparents. Any UK-born children of settled EU citizens are automatically UK citizens.

Permanent Residents

UK permanent residents will be required to switch to settled status, as EU law will cease to apply in the UK as of December 31, 2020.

Application

Applicants for settled status need only provide the following: (i) proof of identity (passport/identity card); (ii) proof of UK residence; and (iii) declaration of lack of serious criminal convictions. Those who do not automatically qualify for settled status will be considered pre-settled and allowed to re-apply after 5 years of residency. The deadline for applications is June 30, 2021.

Permanent residents or persons with indefinite leave to remain can exchange their status for settled status at no cost. Application fees for settled or pre-settled status are £65 for adults and £32.50 for children under 16. As of April 2019, re-application will be free.

Applicants will only be denied if: (i) they are not UK residents by December 31, 2020; (ii) they have serious criminal convictions; (iii) they have committed fraud; or (iv) they pose serious security concerns.

For more frequent updates, please follow us on Twitter (@GrahamAdairLaw).

USCIS Update to Form I-797 Receipt Notices for Form I-751 and Form I-829

U.S. Citizenship and Immigration Services has announced that petitioners will now receive a Form I-797 receipt when filing a Petition to Remove Conditions on Residence (I-751) and a Petition by Entrepreneur to Remove Conditions on Permanent Resident Status (I-829). The petitioners will now be able to use that receipt as evidence of continued status for 18 months past the expiration date on their Permanent Resident Card (I-551).

Previously 12 months, the continued status is being extended 18 months past expiration due to the increased processing times for Form I-751 and Form I-829 this year. This is a welcome change to working immigrants, as the I-797 receipt serves as proof of ongoing employment eligibility and the official document for international travel when a conditional green card has expired.

For more frequent updates, please follow us on Twitter (@GrahamAdairLaw).

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