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Visa Availability for EB-1 Remains Uncertain; Pending Adjustment of Status Applicants Must Wait

The EB-1-1 (employment-based first preference) became oversubscribed during the summer. While this is normal because the summer is the end of the U.S. fiscal year, visas in this category historically always have become available again October 1, the beginning of the new fiscal year, and green cards would be issued. Not...
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Update on Long Pending EAD/AP Applications at the National Benefits Center

We are seeing long delays in the adjudication of Form I-765, Application for Employment Authorization, and Form I-131, Application for Travel Document, processed by the National Benefits Center (NBC). Processing times for the NBC as of September 2018 indicate that I-765 applications based on pending I-485 adjustment of status applications range...
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F-1 “Cap-Gap” Status and Work Authorization Extension Only Valid Through 9/30/2018

USCIS has reminded F-1 students whose cap-subject H-1B petition remains pending that they risk accruing unlawful presence if they continue to work on or after October 1 (unless otherwise authorized to continue employment), as their “cap-gap” work authorization is only valid through September 30. While USCIS regulations allow an F-1 student...
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DHS Sued Over Silent Approach to Third-Party Worksite Placements for OPT

A lawsuit filed in the Northern District of Texas is alleging that DHS violated the Administrative Procedure Act (APA) by publishing a rule affecting the F-1 Optional Practical Training (OPT) program for STEM students. The original rule DHS published extending OPT employment for STEM students was properly implemented through the notice-and-comment...
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Morale at ICE Reaches New Low

As criticism of the agency increases, dissent is forming with Immigration and Customs Enforcement (ICE). In a letter addressed to the Secretary of Homeland Security, Homeland Security Investigations (HSI) proposed a deconstruction of ICE into its two main but independent components, HSI and Enforcement and Removal Operations (ERO). The latter is...
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Unmarried A and G Domestic Partners May No Longer Be Eligible for Visas as “Immediate Family Members”

In recent communication, it appears that the Department of State will only accept the accreditation of spouses of newly arrived officers and employees of international organizations and embassy staff, both same-sex and opposite-sex, as members of the immediate family of the principal A or G visa holder, as of October 1,...
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Receipt of Public Benefits May Hinder Admissibility to the U.S.

The Department of State has been scrutinizing individuals applying for green cards under the public-charge bar. Some of these non–U.S. citizens must show that they are not likely to become dependent on the government for cash assistance or long-term care. In making a public-charge determination, the government must look at a...
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EB-1 Retrogression and Not Likely to Become Current in October

Historically, at the end of the fiscal year, visa preference categories further retrogress or become backlogged for the first time, only to become current again on October 1. This has been the pattern for the employment-based first preference (extraordinary ability, outstanding professors/ researchers, and multinational executives and managers) for years. This...
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New De-Naturalization Unit Investigating Previously Approved N-400 Applications

While U.S. citizens by birth can never be stripped of their citizenship, naturalized citizens do not enjoy that same security if their citizenship was obtained by fraud or misrepresentation. Sometimes this revocation is warranted. This past January, ICE filed a civil denaturalization complaint against a former Bosnian paramilitary member who engaged...
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Significant Changes to F, J and M Visa Holders’ Maintenance of Status Now in Effect

USCIS’s new policy regarding “unlawful presence” for foreign students (academic and vocational) and exchange visitors and their dependents is now in effect. This means that foreign students (F-1, J-1, M-1) will begin accruing unlawful presence on the day after the student violates the terms of his or status, such as fails...
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USCIS Postpones Launch of New Notice to Appear Policy Due to Implementation Issues

Around the same time that USCIS issued its new policy regarding RFEs and NOIDs,USCIS updated its guidance for referring cases to the immigration court through the issuance of a Notice to Appear (NTA), and thus increasing its enforcement actions to a whole host of cases that normally are not automatically referred...
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USCIS Not Obligated to Issue RFEs and NOIDs in the Case of a Deficient Filing

At the same time that immigration judges are having their discretion restricted, USCIS adjudicators are having their discretion expanded. The governing regulations explicitly provide an adjudicator the discretion to deny a case outright if the record does not establish eligibility for the immigration benefit, or issue a Request for Evidence (RFE)...
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Immigration Lawyers Associations File Complaint with DHS Over Coercive and Illegal Tactics

Of the more than 2,500 children who were separated from their parents due to the Trump Administration’s “zero tolerance” policy on border crossers, close to 550 children have yet to be reunified and an estimated 463 of their parents are no longer in the United States. In the wake of this...
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News in Brief

Judge Orders DACA Reinstatement: The lawsuit against terminating DACA continues in federal court, where a district court judge ruled that the program must be fully restored. The government has until August 23 to respond or appeal the order. TPS Extensions for Yemen and Somalia: On July 19, 2018, DHS Secretary Kirstjen...
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USCIS Sued Over Third-Party Worksite Memo

Just before this year’s H-1B lottery, USCIS published a memorandum that requires petitioners who place their H-1B employees at third-party worksites to provide significantly more evidence to establish the employer-employee relationship. Such evidence could include documentation of specific work assignments, copies of contractual agreements, itineraries, and detailed work statements covering the...
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Judge Orders DHS and DOJ to Fix Asylum Filing Procedures to Comply with One-Year Rule

A district court judge recently issued an important decision regarding the one-year filing deadline for asylum applications. By law, an asylum seeker who is present in the United States may apply for asylum but must do so within one year of arrival. The proper place to file (or lodge) the asylum...
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Government Proposing Retaliatory Restrictions on Chinese Student Visas

As the Trump Administration continues to take a hardline stance toward China in the sphere of free trade and open markets, the Department of State is considering limiting the issuance of F-1 visas to Chinese nationals. A June 11, 2018 proposal is a direct response to China’s alleged intellectual property violations....
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DHS Releases Its Strategy to Secure the Northern Border

While significant attention is given to the U.S.-Mexico border, our northern border with Canada still merits attention and security. DHS recently released its Northern Border Strategy to secure the 5,525-mile border, the longest land boundary between two countries in the world. The terrain on the border varies widely according to location...
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USCIS Extends I-829 and I-751 Receipt Notice Validity Due to Increased Processing Times

USCIS announced that EB-5 investors filing I-829 applications and marriage-based petitioners who file I-751 applications to remove the conditions on their green cards will be able to use the receipt notice as evidence of continued status for 18 months past the expiration date on their conditional green card. This increased validity...
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USCIS Processing Times: What Do They Mean?

The processing times listed on the USCIS website now show a range of expected completion dates as opposed to a concrete date. For example, change-of-status applications filed at the Vermont Service Center for the H-4 category show processing times of 9.5 to 13.5 months. This “cycle time” indicates that 50% of...
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