24 Oct 2017

New Roadblocks for Extension of Non Immigrant Visas

USCIS released a new policy yesterday, October 23, 2017 that rescinds prior USCIS policy of giving deference to an earlier examiner’s findings in adjudications of Non-Immigrant Visa applications. You can read the release here: https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2017/2017-10-23Rescission-of-Deference-PM6020151.pdf

Per the new policy, USCIS officers are no longer required to give deference to earlier decisions made by their colleagues i.e. ANY and ALL applications for “simple” renewals of visa classes such as extension of H-1B, L-1A, L-1B or O-1 are now subject to the whims and fancy of the officer that happens to be adjudicating the present application for renewal.

Per this new policy, an Individual with an approved I-140 and seeking an 8th extension of an H-1B visa without change to job location or employer, which would otherwise constitute a “simple extension” is no longer guaranteed that extension. The adjudicating officer may, if she/he chooses, treat the extension request as a “new” request and issue onerous Request for Evidence, or even deny the extension.

This has far reaching consequences for those stuck in ever expanding I-140 lines, especially Citizens of India and China. The I-140 is of little use if the applicant is unable to renew the H-1B that would allow him/her to remain in the US and work whilst waiting for a “Green Card” to become available.

The new policy also affects employers. Immigration officers historically have given deference to the decisions made by other officers. They choose to rescind prior removals if there is a finding of fraud or material change int he application, but this new policy open the door for an officer to rescind a previously approved H if the officer, subjectively, believes that the applicant does not qualify for any number of reasons.

If you or your employees are in the process of needing to apply for extensions, please consult with and work closely with your Immigration Counsel. We strongly advice, under the present circumstances, that employers/applicants and their counsel, treat and prepare every application as a new application.

This is but one new policy in what seems like a never ending slew of bad policy decisions that, in the long run, will only serve to diminish US interests and lead to a brain drain away from the United States.

As always, please free to reach out to me should you have any questions or concerns.

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01 Feb 2017

Effect of Executive Order on Pending Applications at USCIS

The Recently enacted Executive Order that bars entry into the US from Nationals of 7 predominantly Muslim countries has now been expanded to also negatively impact ALL pending applications before the US Citizenship and Immigration Services (USCIS)

Pursuant to an article published in the Intercept, Daniel M. Renaud, Associate Director of Field Operations for DHS’ office of Citizenship and Immigration Services has issued a directive ordering ALL adjudications for nationals from the 7 affected countries to be stopped! https://theintercept.com/2017/01/30/asylum-officials-and-state-department-in-turmoil-there-are-people-literally-crying-in-the-office-here/

“Effectively [sic] immediately and until additional guidance is received, you may not take final action on any petition or application where the applicant is a citizen or national of Syria, Iraq, Iran, Somalia, Yemen, Sudan, and Libya,” wrote Daniel M. Renaud, Associate Director of field operations for DHS’s office of U.S. Citizenship and Immigration Services. “Field offices may interview applicants for adjustment of status and other benefits according to current processing guidance and may process petitions and applications for individuals from these countries up to the point where a decision would be made.”

“At that point, cases shall be placed on hold until further notice and will be shelved with specific NFTS codes which will be provided through the Regional Offices,” Renaud went on to say. “Offices are not permitted [to] make any final decision on affected cases to include approval, denial, withdrawal, or revocation.”

We are reviewing available recourse for our clients impacted by this decision. For those with pending Naturalization (“Citizenship”) applications, the law allows for applicants to file a lawsuit against USCIS in Federal Court and ask the Federal Court to adjudicate the case where USCIS refuses to adjudicate once the case has been pending for more than 120 days.

It is also unclear whether this policy is being implemented uniformly across all USCIS offices across the United States. However, if you or someone you know is from one of the 7 countries directly affected by the Executive Order, it is in your best interest to speak with your attorney, or seek immediate legal counsel if you do not already have an attorney helping you.

We are following all movements related to Immigration very closely, and while these are very fast moving actions, we will do our best to update you as news becomes available to us. In the meantime, please do not hesitate to contact us at 206-623-3352 or visit us online at www.orbitlawpllc.com should you have any questions or concerns. We will try our utmost to help as best we can.

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20 Nov 2016

USCIS Publishes Final Rule Impacting Employment Based Immigrants & Non-Immigrant Workers

USCIS on November 18, 2016, published their final rule impacting various aspects of certain Non-Immigrant and Immigrant visa programs.

  1. Employment Work Authorization (EAD) for Employees with Approved I-140: While there was much hope for an expansion to the EAD rule to allow more foreign workers to be eligible for the EAD, the final rule is still very restrictive. The rule permits persons in E-3, H-1B, H-1B1, O-1, or L-1 nonimmigrant status to apply for an EAD, provided that they meet certain conditions:
    1. The applicant is the beneficiary of an approved employment-based (EB-1, EB-2, or EB‑3) immigrant visa petition,
    2. The applicant is unable to apply for adjustment of status or an immigrant visa stamp because her priority date is not current under the Visa Bulletin,
    3. The applicant shows “compelling” circumstances justifying the grant of an EAD.

    The “compelling” circumstances are described as including one or more of the following:

    1. serious illness or disability faced by the worker or dependents
    2. employer retaliation against the nonimmigrant worker
    3. other substantial harm to the applicant
    4. significant disruption to the employer

    For those that are able to meet this restrictive definition, they are eligible for an EAD valid for one year.

  2. H-1B Extensions Beyond the Sixth Year

    The regulation codifies USCIS’s longstanding policies on H-1B extensions beyond the sixth year, with some additional requirements.

    • Post-sixth year extensions will be available to foreign nationals who are not currently in H-1B status, as long as they previously held that status and remain eligible for an additional period of H-1B admission, consistent with current policy.
    • An H-1B nonimmigrant will become ineligible for a one-year post-sixth year extension, if he or she fails to apply for adjustment of status or an immigrant visa within one year of the date an immigrant visa becomes available to him or her.
    • A one-year post-sixth year H-1B extension will cease to be available if, at the time the extension is filed, the foreign national’s labor certification is no longer valid, his or her I-140 has been denied or revoked or an adjustment application or an immigrant visa has been approved or denied.
    • An H-1B whose approved I-140 petition was withdrawn 180 days or more after approval will remain eligible for a three-year extension unless the I-140 was withdrawn for fraud, material misrepresentation, material USCIS error, or revocation or invalidation of the underlying labor certification.
  3. Portability and Priority Date Retention for I-140 Beneficiaries: The new regulation eases the impact of I-140 petition revocations and codifies certain longstanding agency policies on I-140 job portability.

    A foreign national whose I-140 petition has been approved for 180 days or more will not have the petition automatically revoked if the employer goes out of business or withdraws the petition.  However, the foreign national will need a new job offer or a new I-140 petition to obtain employment-based permanent residence.

    An I-140 beneficiary whose petition is revoked will be able to use the priority date for a subsequent I-140 petition, unless the reason for revocation was fraud, material misrepresentation, invalidation or revocation of the underlying labor certification or material USCIS error.

    Consistent with current policy, the beneficiary  of a pending I-140 will be able to port to new employment after his or her adjustment of status application has been pending for 180 days or more, as long as the pending I-140 petition was approvable when filed and remained approvable for 180 days after the filing of the adjustment application.

  4. Grace Periods for Nonimmigrant Workers

    Amongst the hardest challenges that Non-immigrant workers have faced in the US is that until now, they have been left with no “grace period” to try to find alternate employment, or even to dispose of their personal belongings should they find themselves suddenly unemployed. The law has always had a strict policy of the Non-Immigrant being out of status as soon as his/her employment is terminated. This law changes that. Employees on E, H-1B, H-1B1, L-1, O-1 and TN nonimmigrants whose employment is terminated early will be accorded one grace period of up to 60 days during each validity period, to allow them to extend, change or otherwise maintain status or, in the H-1B context, to port to new employment. 

    Approved E, L-1 and TN nonimmigrants will receive a 10-day grace period before and after their validity period, as is currently available to H-1B nonimmigrants. They will be able to enter the United States 10 days before their start date to prepare for employment, and will have 10 days at the end of their period of stay to take action to extend, change or otherwise maintain status, or prepare for departure from the United States.

    Employment is not authorized during the grace periods, except for H-1B foreign nationals who are porting to new employment.

  5. Employment Authorization Documents:  Automatic Extensions and Application Processing

    The regulation offers an automatic 180-day work authorization extension to certain foreign nationals who timely file for EAD renewal, including adjustment applicants, applicants for extension of Temporary Protected Status, and certain applicants under the Violence Against Women Act. The automatic extension will not be available to H-4, L-2 or E nonimmigrant spouses seeking renewal of employment authorization.

    The new regulation eliminates a rule that required USCIS to process EAD applications within 90 days and grant interim work authorization to those with an EAD application pending for more than 90 days.  As a practical matter, the agency had ceased adhering to these rules in recent years. USCIS has indicated that, except when impracticable, it will accept renewal applications up to 180 days before EAD expiration to minimize the impact of extended EAD processing delays on a foreign national’s continued eligibility to work; previous policy prohibited renewal applications from being filed more than 120 days before EAD expiration.

    The Big Unknown: These policy changes, while welcome and much needed, are set to take effect on January 17, 2017 i.e. a few days before the new Administration takes office. Therefore; it is, as yet, unclear as to whether or not this final proposed rule will in fact be implemented, or whether it will be withdrawn. There is speculation that Senator Jeff Sessions is to be the incoming administration’s nominee to lead the Department of Justice, of which USCIS and the Immigration Courts are a part. Sen. Sessions has been a vociferous opponent of Immigration reform, and should he be confirmed as the Attorney General, it is likely that policy changes such as these will be impacted.

We will continue to follow up on these and post updates as and when we have them. As always, please contact us at 206-623-3352 should you have any questions or if we can help you in any way.

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