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).

Quiet Change to STEM OPT Program Requires Immediate Action

USCIS quietly made a change to the STEM OPT program earlier this year. Without any formal announcement, the agency published a new restriction on the STEM OPT page of its website stating that employers may employ students under the STEM OPT program only if the employer will provide the practical training experience to the student at its own place of business. This is a sharp departure from previous interpretations of employer-employee relationships permitted under the STEM OPT program.

What this means for our clients:

If you have contractors working at your company under the STEM OPT program and you wish to continue to utilize their services, you must transfer the STEM OPT student to your employ and fill out a new I-983 training plan for the student to submit to their school at the earliest. It is particularly important that the transfer take place sooner rather than later if you have filed an H-1B cap case on the student’s behalf in this year’s H-1B visa lottery.

If you have questions about this, please contact Sam Adair. For more frequent updates, please follow us on Twitter (@GrahamAdairLaw).

H-1B Cap Reached for FY 2019

USCIS has completed the random selection process for reaching the H-1B cap and the advanced degree exemption (master’s cap) for fiscal year (FY) 2019.

Between April 2nd and April 6th, USCIS received 190,098 H-1B petitions, including those counting towards the advanced degree exemption. USCIS received approximately 9,000 fewer petitions than were received for last year’s H-1B cap. The general statutory cap is 65,000 petitions, and the master’s cap is 20,000. USCIS randomly selected visas in the master’s cap category first, from which unselected petitions became part of the 65,000 cap lottery.

USCIS will continue to process cap-exempt petitions, as well as petitions for current H-1B workers to:

  • Extend stay in the U.S.;
  • Change employers;
  • Work concurrently in another H-1B position;
  • Change terms of employment.

USCIS will return unselected petitions with their filing fees. Current H-1B workers who have been counted towards the cap will not be counted towards the FY 2019 cap. For more frequent updates, please follow us on Twitter (@GrahamAdairLaw).

Temporary Premium Processing Suspension

USCIS will begin accepting H-1B petitions that are subject to the FY 2019 cap on April 2, 2018. FY 2019 cap-subject petitions received by USCIS from April 2 to April 6, 2018 will be considered in the H-1B visa lottery. Today, USCIS announced that it has temporarily suspended premium processing for all FY 2019 cap-subject petitions. During the temporary suspension, USCIS will reject any I-907 Forms requesting premium processing service associated with FY 2019 cap-subject H-1B petitions.

USCIS expects the suspension to last until September 10, 2018. FY 2019 cap-subject petitions that are still pending after September 10, 2018 may be upgraded to premium processing at that time.Premium processing will continue for H-1B petitions that are not subject to the FY 2019 cap. Such H-1B petitions include H-1B extension petitions and H-1B change of employer petitions.

USCIS explains that the temporary suspension will help the agency process long-pending petitions and reduce overall H-1B processing times. For more frequent updates, please visit our website and follow us on twitter (@GrahamAdairLaw).

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