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USCIS Policy Memo on Issuing Denials Without RFEs is in Effect

Posted September 19, 2018Kristen KellarArticles

In July 2018, USCIS published a new policy memorandum giving adjudicators discretion to deny cases without first issuing a Request for Evidence or Notice of Intent to Deny.  Please see our recent blog post on the policy memo.

The memo is now in effect and aims to discourage skeletal petitions that lack supporting evidence.  The policy will not dramatically change how Meltzer Hellrung LLC practices, but we may push back on filing petitions that do not include much supporting evidence. If you have any questions about the memo or required evidence for your cases, please reach out to your designated Meltzer Hellurng LLC attorney.

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Premium Processing Fee Rises to $1410 Effective October 1st

Posted August 31, 2018Matthew MeltzerArticles

USCIS has published a regulation that will increase the premium processing filing fee from $1225 to $1410, effective October 1st. Any petition with premium processing filed on October 1st or later must include the full $1410 filing fee.

USCIS last increased the filing fee for premium processing in 2010 when it raised the fee from $1000 to $1225.

The premium processing service is available for many common visa and green card petitions including H-1B, L-1, O-1, TN and most I-140 petitions.

For more information regarding the suspension of premium processing in H-1B petitions please see our blog post.

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Business Roundtable Expresses Concerns About Changes in Immigration Policy

Posted August 31, 2018Matthew MeltzerArticles

On August 22nd the Business Roudtable released a letter addressed to Kirstjen Nielsen, the Secretary of the Department of Homeland Security.

Business Roundtable is the only national organization representing exclusively CEOs of America’s leading companies.  The CEO members who make up Business Roundtable lead companies with more than 16 million employees and more than $7 trillion in annual revenues.

Business Roundtable is an association of chief executive officers of America’s leading companies working to promote a thriving U.S. economy and expanded opportunity for all Americans through sound public policy.

The letter addresses concerns that we have covered in this blog, including:

The letter concludes with the following language that we heartily endorse:

Together, the USCIS actions significantly increase the likelihood that a long-term employee—who has followed the rules and who has been authorized by the U.S. government multiple times to work in the United States—will lose his or her status. All of this despite the Department of Labor having, in many cases, certified that no qualified U.S. workers are available to do that person’s job.

Business Roundtable continues to work with Congress to reduce the green card backlog. In the interim, inconsistent immigration policies are unfair and discourage talented and highly skilled individuals from pursuing career opportunities in the United States. The reality is that few will move their family and settle in a new country if, at any time and without notice, the government can force their immediate departure–often without explanation. At a time when the number of job vacancies are reaching historic highs due to labor shortages, now is not the time restrict access to talent.

As the federal government undertakes its legitimate review of immigration rules, it must avoid making changes that disrupt the lives of thousands of law-abiding and skilled employees, and that inflict substantial harm on U.S. competitiveness.

The USCIS has made immigration processes more erratic, noticeably more difficult, and challenged employers in maintaining normal hiring practices. We strongly support the Business Roundtable's perspective that the USCIS has created policies that are unfriendly to businesses and employees alike.

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USCIS Extends and Expands Suspension of Premium Processing for H-1B visas

Posted August 29, 2018Cynthia S. CoulangeH-1B

On August 28, 2018, USCIS announced that it is extending the suspension of premium processing service for all cap-subject H-1B petitions. The previously announced suspension of premium processing was expected to last until September 10, 2018. In this latest announcement, the suspension of this expedited service is expected to last until February 19, 2019

Petitions impacted

  • USCIS has expanded the suspension to include all H-1B cases filed at the Vermont and California Services Centers. 
  • All H-1B Cap Petitions
  • This extension will include all change of employer/transfer petitions. 

Petitions not impacted

  • Petitions filed by cap-exempt institutions, entities, or organizations are exempt from this suspension. 
  • H-1B petitions filed exclusively with the Nebraska Service Center by an employer requesting an extension of status without change to the terms of employment are also exempt from this suspension. 
  • USCIS will allow for premium processing to continue for all cases which are not subject to the cap through September 10, 2018.

Impact on OPT and Cap Gap

This suspension is of significant importance to employers of F-1 OPT students. Employers who have sponsored F-1 OPT students for H-1B visas and who are currently working based on Cap Gap should be aware that Cap Gap work authorization will end on September 30, 2018. While these students will be able to remain in the U.S. as they await the adjudication of their cases, their employment authorization will not extend beyond September 30, 2018. With the suspension of premium processing, employers will not be able to guarantee that cap cases are adjudicated prior to this date. Moreover, employers should monitor the expiration date of EADs of F-1 OPT students whose employment authorization will be expiring prior to February 19, 2019 when premium processing resumes.  These employees are also at risk of not having their H-1Bs approved prior to the expiration date of their EAD cards.

H-1B Transfers

In addition, companies filing H-1B transfers should be prepared for delayed start dates if a foreign national employee insists on having an H-1B approval notice before beginning their employment with a new employer. Employers may want to consider requiring a start which coincides with the issuance of a receipt notice which typically occurs about two weeks after the transfer petition is filed. Employees with H-1B transfer petitions are eligible to begin working once the USCIS receives the petitions. 

As always, if you have questions regarding premium processing suspension and the impact it will have on your foreign national population, please reach out to your designated Meltzer Hellrung Attorney.

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USCIS issues Final Policy Memo on Accrual of Unlawful Presence for F, M, and J Nonimmigrants

Posted August 23, 2018Cynthia S. CoulangeArticles

On August 9, 2018, USCIS issued its final policy memo on the accrual of unlawful presence for F, M, and J immigrants. The new policy memorandum will drastically change the way that unlawful presence will be calculated for these nonimmigrants. F, M, and J visa holders are admitted to the U.S. under duration of status and are not typically admitted to the U.S until a certain date. Historically, individuals who failed to maintain their nonimmigrant would be in violation of their status but would not be accruing unlawful presence until the day after USCIS formally identified a status violation or an immigration judge ordered the nonimmigrant excluded, removed, or deported.

Under the new policy memo, F, M, and J Nonimmigrant will begin to accrue unlawful presence the moment a status violation occurs. This new calculation will have catastrophic effects for individuals holding these statuses due to the lack of notice foreign nationals will have regarding when they begin to accrue unlawful presence. If an individual is accruing unlawful presence for more than 180 days they become subject to a 3 year bar from entering the U.S. should they depart the United States.  If they are accruing unlawful presence for more than a year, they will become subject to a 10 year bar. Under this new memo, F, M, and J visa holders could very easily be in danger of accruing unlawful presence to the point of triggering the bar without having notice they are accruing unlawful presence.

The determination that an F nonimigrant has failed to maintain their status will not likely occur until the foreign national applies for another benefit through USCIS. In most situations, it is when an F-1 visa holder applies for a change of status that USCIS will review whether they maintained their nonimmigrant status. During this process, USCIS could determine that the F-1 visa holder violated their status a year prior by not having enough credit hours or working in a field that USCIS deems is not related to their degree. In this situation, the foreign national’s unlawful presence will have started to accrue when the violation occurred and not when the determination is made. This foreign national would be subject to a 10-year bar without having notice that this unlawful presence was accruing.

USCIS issued the initial memo in May regarding this change and after receiving many comments made a slight change to the original memo. Filing a timely application for reinstatement does pause the clock for unlawful presence and it will not accrue during the pendency of this request. However, this change will not provide much relief for individuals who may already be subject to a bar by the time they are notified by USCIS of the status violation which resulted in the accrual of unlawful presence.

As always, should you have any questions regarding unlawful presence in light of this memo, please contact your assigned Meltzer Hellrung attorney.

 

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