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Archive by Year: 2018

Effect of the Government Shutdown on Employment-Based Immigration

Posted December 26, 2018Articles

With the government partially shut down as of December 22, 2018, many agencies are still operating, but other services will be unavailable until a new spending bill is signed. Here is an overview of how some of the immigration related agencies and services are being affected.

U.S. Citizenship and Immigration Services

U.S. Citizenship and Immigration Services budget is fee based and generally is not affected by a government shutdown. USCIS offices will be open and interviews and appointments should be attended.

The following USCIS programs are affected:

  • EB-5 Immigrant Investor Regional Center Program

EB-5 applications are on hold due to a lapse in congressional authorization for the program. Forms I-526 and I-924 can be submitted but will not be adjudicated until congressional authorization is received. Forms I-829, submitted to remove conditions to remove conditions on permanent resident status for entrepreneurs are not affected.

  • E-Verify

E-Verify services are unavailable. During this time, the following policies have been implemented to assist employers:

  1. The 'three-day rule" for creating cases is suspended for cases affected by the unavailability of E-Verify.
  2. The time period which employees may resolve tentative nonconfirmations (TNCs) will be extended. Additional guidance will be provided by E-Verify when operations resume.
  3. Employers may not take adverse action against employees because the E-Verify case is in an interim case status, including while the employee's case is in an extended interim case status due to the unavailability of services.
  4. Federal contractors with the Federal Acquisition Regulation E-Verify clause should contact their contracting officer for information on extending deadlines.
  • Conrad 30 Waiver Program for J-1 medical doctors

Conrad 30 waivers are not being granted.

  • EB-4 Non-Minister Religious Workers

The non-ministerial special immigrant religious worker program is currently on hold.

Department of Labor

The Department of Labor has been funded through October 2019 so it is not affected by the shutdown.

Department of State

The State Department has announced that it will continue to provide scheduled passport and visa services at U.S. Embassies and Consulates during the shutdown, however delays may occur.

U.S. Customs and Border Protection

Ports of entry are open and Customer and Border Protection will continue to work. CBP is affected by the shutdown but employees with be working without pay.  

If you have any additional questions about how the shutdown could affect you or your employees, please reach out to your designated Meltzer Hellrung LLC attorney.

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USCIS Issues Updated Guidance on I-751 Interview Waivers

Posted December 5, 2018Kristen KellarGreen Card

USCIS recently issued a policy memorandum revising guidance for Form I-751 interview waivers. Form I-751 is filed to removed conditions on permanent residents whose lawful permanent residence is based on a qualifying marriage that is less than two years old at the time of admission or adjustment of status.

Generally, individuals who file a Form I-751 must appear for an interview with a USCIS officer. All I-751s filed on or after December 10, 2018 are subject to the new policy memorandum. The new guidance states that officers may waive the interview if the following conditions are met:

  • The officer can make a decision on the record because it contains sufficient evidence about the bona fides of the marriage and that the marriage was not entered into for the purpose of evading the immigration laws of the United States;
  • For Form I-751 cases received on or after December 10, 2018, USCIS has previously interviewed the I-751 principal petitioner (for example, for a Form I-485 or Form I-130);
  • There is no indication of fraud or misrepresentation in the Form I-751 of the supporting documentation; and
  • There are no complex facts or issues that require an interview to resolve questions or concerns.

If you have any questions about the policy memorandum and how it could affect your application, please reach out to your designated Meltzer Hellrung LLC attorney.

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Proposed Changes to H-1B Cap Lottery

Posted December 3, 2018H-1B, Monthly Newsletters

In accordance with the Buy American and Hire American Executive Order, DHS announced on November 30, 2018 a proposal that would require petitioner’s seeking to file H-1B cap-subject petitions to first electronically register with USCIS during a designed registration period. USCIS would also reverse the order by which USCIS selects H-1B petitions, increasing the number of beneficiaries with a master’s or higher degree from a U.S. institution of higher education to be selected for an H-1B cap first.

Currently, once the H-1B cap and advanced degree exemption petitions are met, the advanced degree exemption is selected prior to the H-1B cap. Once there are sufficient petitions selected for the H-1B cap, USCIS would select the petitions towards the advanced degree exemption. This would increase the chances that beneficiaries with a master’s or higher degree from a U.S institution of higher education would be selected under the H-1B cap, and that the H-1B visa would be awarded to the highest-paid and most-skilled beneficiaries. Further, the proposed process would increase the number of selected H-1B beneficiaries who hold a U.S. institution master’s degree or higher by 16 percent.

Due to the expected technical challenges to this proposed H-1B registration process and new electronic system, USCIS could temporarily suspend the registration process during any fiscal year. This suspension would allow USCIS to up-front delay the implementation of the H-1B registration process past the fiscal year 2020 cap season. Yet, USCIS expects that this electronic system would reduce overall costs for petitioners and create a more efficient and cost-effective H-1B cap petition process for USCIS. This would also help reduce wait times for cap selection notifications, as well as limit the filings of H-1B cap-subject petitions to the beneficiary named on the original selected registration, which would protect the integrity of this registration system.

We do not yet know the procedures for registration and how long USCIS will provide to submit complete petitions selected in the lottery. We will continue to monitor the situation and advise clients appropriately.

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USCIS Clarifies L-1 Foreign Employment Requirement

Posted November 28, 2018Articles

On November 15, 2018, USCIS issued a policy memorandum entitled "Satisfying the L-1 1-Year Foreign Employment Requirement," which clarifies how USCIS calculates the one-year foreign employment requirement. In order to qualify for L-1 status, beneficiaries must have one continuous year of qualifying employment outside of the United States within the preceding three years.

Per the policy memorandum, brief trips to the U.S. for business or pleasure will accrual of the continuous year of employment abroad. The example USCIS provides is "if the qualifying foreign entity began to employ the beneficiary on January 1, 2016, and the beneficiary made brief trips to the United States that year for a total of 60 days, the beneficiary would need to accrue at least an additional 60 days of qualifying employment abroad after January 1, 2017, in order to meet the one-year foreign employment requirement."

The policy memorandum also provides the following guidance on when the three-year period for determining whether the one year requirement can be adjusted. 

  • Time spent working for the qualifying organization as a principal beneficiary of an employment-based non-immigrant petition or application in the United states results in an adjustment of the three year clock.
  • Periods of time working for the qualifying organization in the United States as a dependent or student do not result in an adjustment of the three-year period.
  • Periods of time spent in the U.S. not working or working for an unrelated employer do not result in an adjustment of the three-year period.

If you have any questions about timing or other requirements for an L-1 petition, please reach out to your designated Meltzer Hellrung LLC attorney.

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Holiday Travel Tips for Foreign Nationals

Posted November 14, 2018Articles

Holiday Travel Tips for Foreign Nationals The holidays are quickly approaching, and for foreign nationals planning to travel abroad now is a great time to ensure that all immigration documents are in order.

Pending Cases with USCIS

Those with a currently pending case with USCIS should consult with their or their employer’s immigration attorney to determine any travel risks.

Individuals with pending nonimmigrant cases for change of status or extension of status generally should not travel abroad until the case is adjudicated. Leaving the U.S. while the case is still pending may result in the case being approved for consular processing thus requiring the individual to leave the U.S., obtain a visa stamp, and re-enter in order to “activate” the new approval.

Those with pending adjustment of status cases may need to have a valid advanced parole document to re-enter the U.S. Individuals on dual intent visas such as H-1B, H-4, L-1, and L-2 can return to the U.S. with their valid visa.

Visa Stamps

In general, nonimmigrants with an expired visa stamp will need to obtain a new one before returning to the U.S. There is an exception for those with a valid I-94 travelling only to Canada or Mexico for fewer than 30 days, who meet certain criteria, through a process called automatic revalidation. Citizens from Iran, Sudan, or Syria with an expired visa, as well as those who have applied and are waiting for a visa stamp, or had a visa denied, will need to obtain a valid visa stamp regardless of the length of stay in Canada or Mexico.

Those travelling to other countries or who plan to stay in Canada or Mexico for more than 30 days, should plan to obtain a new visa stamp before returning to the U.S.

It is also important that the visa stamp be valid for the correct visa category. For example, if an individual changed from F-1 to H-1B on October 1 and has not yet received a new visa stamp, that person will need a new H-1B visa stamp to re-enter the country.

Appointments for visa stamping should be made as early as possible as appointments maybe be limited due to local and U.S. holidays. Each U.S. Consulate lists its holiday closures on its website, and estimate visa appointment and processing wait times can be found on the U.S. Department of State’s website.

Citizens of Canada generally do not need a visa stamp.

Passport Validity

Passports should be valid for the period of intended stay. If entering with a passport that expires before end date on the I-797 approval notice, U.S. Customs and Border Protection may shorten the new I-94 to match the passport expiration date. Individuals from certain countries must have passports valid for at least six months beyond the period of the intended stay, however, most countries are exempt from this requirement.

Re-entering the United States

When returning to the U.S. on a nonimmigrant status we suggest carrying the following documents:

  • Current passport
  • Current I-797 approval notice
  • Two most recent paychecks
  • Signed employment verification letter confirming current position, wage, etc.

Additionally, individuals should be ready to answer basic questions posed by U.S. customs and immigration officials, such as:

  • What is the name of your employer?
  • What is your job title?
  • Where do you work?
  • How long do you expect to stay in the United States?

Upon returning to the U.S., foreign nationals should take a moment to obtain their most recent I-94 so they are aware of their status expiration date. Each person should also review their I-94 record for consistency with other immigration records. If there is an inconsistency please contact us immediately for advice on correcting the mistake.

As always, if you or your employees have any questions about travelling during the holidays or at other times during the year, reach out to your designated Meltzer Hellrung attorney.

We wish a happy holiday season to you and your families.  

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