Nonimmigrant

New Policy Guidance Drastically Changes USCIS’s Adjudications Process, Announces that Denials Will Now Result in Removal (Deportation) Proceedings

In a pair of policy memoranda released to the public in July 2018, the Administration is drastically changing the U.S. Citizenship and Immigration Service’s (USCIS, formerly INS) role in adjudications. Initially formed as the immigration benefits-adjudicating sub-agency when the Department of Homeland Security took over immigration functions from the Department of Justice after 9/11, USCIS is typically involved in a very low percentage of the overall enforcement actions of the DHS agencies. (Most enforcement is done by DHS’s other immigration sub-agencies, ICE and CBP.) For example, unless fraud or criminality is suspected, USCIS traditionally has not initiated removal (deportation) proceedings in the course of adjudicating benefits applications, such as nonimmigrant and immigrant visa petitions, applications for adjustment of status to U.S. permanent residence, or naturalizations. However, in a new policy memo released on July 5, 2018 (but dated June 28), entitled Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens (“NTA Memo”) and effective immediately, the Administration announced that USCIS will now initiate removal proceedings in a wide variety of circumstances.

H-1B cap update – USCIS reports 190,098 petitions received

Today USCIS announced that it received 190,098 H-1B petitions in the filing period that began on April 2. On April 11 USCIS used a computer-generated random selection process (commonly known as a “lottery”) to select a sufficient number of petitions needed to meet the cap. USCIS says that it conducted the selection process for advanced degree exemption petitions first; all advanced degree petitions not selected were then made part of the random selection process for the 65,000 limit. Any petitions not randomly selected will be rejected and returned with the filing fees.

© Jewell Stewart & Pratt PC 2018

H-1B cap reached for FY 2019, lottery triggered

U.S. Citizenship and Immigration Services (USCIS) announced today that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2019. USCIS has also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the U.S. advanced degree exemption. USCIS will not accept H-1B petitions subject to the FY 2019 cap or the advanced degree exemption after today.

USCIS Restricts Availability of NAFTA Work Authorization (TN Status) for “Economist” Category

On December 18, 2017, U.S. Citizenship & Immigration Services (USCIS) announced a policy change affecting the adjudication of applications for TN visa status under NAFTA. 

Background on TN visa status

TN visa status allows citizens of Canada or Mexico to work legally in the U.S. if their employment fits within any of 62 occupational classifications and they have the corresponding educational and/or professional qualifications.  One such occupational classification is “Economist.”  The full list of eligible occupational classifications is found in Appendix 1603.D.1 of the NAFTA treaty, as well as in the federal regulations at 8 C.F.R. Section 214.6.

Travel Ban 3.0 – On Hold by the Courts

In two separate Federal Court decisions issued on October 17, 2017, the majority of the travel restrictions set forth in President Trump’s September 24, 2017 proclamation titled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or other Public-Safety Threats” were blocked. As a result, nationals of Iran, Libya, Syria, Yemen, Somalia and Chad will not be restricted from traveling to the United States. However, all immigrants and nonimmigrants from North Korea and certain government officials and their family members from Venezuela traveling on business or tourist visas (B-1/B-2) will continue to be restricted from travel to the U.S. The U.S. Department of Justice has stated that it will appeal these rulings.  

© Jewell Stewart & Pratt PC 2017

Trump Administration Announces Travel Ban 3.0

On September 24, 2017 President Trump announced an extended and enhanced version of the travel ban that was previously in place under Executive Order 13780 (EO-2). The Presidential Proclamation titled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or other Public-Safety Threats,” a related Fact Sheet, and FAQs for the new ban are available on the White House website. As with EO-2, the ban affects immigrant and nonimmigrant visa issuance only. Therefore, nationals from the affected countries who already hold visas will not have those revoked. The U.S. Department of State has also announced that previously scheduled visa appointments will not be cancelled.

Update: State Department now using Form DS-5535, Supplemental Questions for Visa Applicants

News Release from Jewell Stewart & Pratt PC – June 5, 2017 As noted in our prior post, the Department of State recently published a Notice of request for emergency approval by the Office of Management and Budget (OMB) for its new form, Form DS-5535, Supplemental Questions for Visa Applicants. The form was designed to collect extra information from visa applicants who have been determined to warrant additional scrutiny in connection with terrorism or other national security-related visa ineligibility.

According to a news report from The Washington Post, Form DS-5535 was approved by the OMB and has been in use at U.S. embassies and consulates since May 25, 2017. A copy of the form is currently available on the U.S. Embassy and Consulates in Turkey website. The extra information it collects includes:

  • Countries visited over the last fifteen years
  • Email addresses used in the past five years
  • Social media handles and aliases used in the past five years

Form DS-5535 is authorized on an emergency basis through November 2017, but as The Washington Post article notes, it is expected to be authorized on a permanent basis.

© Jewell Stewart & Pratt PC 2017

Department of State plans to heighten screening and vetting of visa applicants: Update

As noted in our prior blog post, a Department of State cable sent by Secretary Tillerson on March 17, 2017 provided immediately effective guidance to all U.S. diplomatic and consular posts regarding the screening and vetting of visa applications.

On May 4, 2017, the Department of State published a Notice of request for emergency OMB approval and public comment on a new Form DS-5535, Supplemental Questions for Visa Applicants. This form would collect information from visa applicants who have been determined to warrant additional scrutiny in connection with terrorism or other national security-related visa ineligibility.

USCIS policy memorandum regarding use of Computer Programmers occupation in H-1B petitions

On March 31, 2017, U.S. Citizenship & Immigration Services (USCIS) released a policy memorandum (hereinafter, “the new memo”) explicitly rescinding a prior memo on H-1B computer-related positions, and thereby reinforcing current USCIS practice related to the use of the Computer Programmers occupation code in H-1B petitions. This post provides background information and discusses how future H-1B petitions will be affected.

U.S. district court dismisses legal challenge to rule allowing 24-month STEM OPT extensions

News Release from Jewell Stewart & Pratt – April 21, 2017 On March 11, 2016, the U.S. Department of Homeland Security (DHS) published a Final Rule that provided for, among other items, 24-month extensions to Optional Practical Training (OPT) work authorization for foreign nationals in F-1 student visa status who would otherwise be limited to twelve months of OPT. See our blog post discussing the rule here.

On June 17, 2016 this new Final Rule became the subject of a lawsuit before the U.S. District Court for the District of Columbia. On April 19, 2017, however, the court dismissed the lawsuit. The court found that the plaintiffs failed to state a claim upon which relief could be granted.

The Final Rule therefore remains in force: 24-month extensions to post-completion OPT are still available in appropriate circumstances, and prior grants of such OPT remain valid. The plaintiffs have not yet announced whether they will appeal the decision.

© Jewell Stewart & Pratt 2017