Social Media Screening Included in State Department Efforts towards ‘Extreme Vetting’

On March 30th, the State Department released a proposal that would greatly slow processing for all visa classifications and provide sensitive data to the State Department officials. In response to the Trump Administration policies towards ‘extreme vetting’ of foreign nationals entering the United States, the State Department announced that it would begin to screen the social media accounts of all visa applicants.

New Procedures

The proposal, if approved by the Office of Management and Budget OMB, would require those who fill out any type of nonimmigrant visa application to list all identifiers (i.e. handles, account names, etc.) used within the last five years. According to The New York Times, applicants would have to provide social media handles used for any of the following social media platforms: Facebook, Flickr, Google+, Instagram, LinkedIn, Myspace, Pinterest, Reddit, Tumblr, Twitter, Vine and YouTube, Douban, QQ, Sina Weibo, Tencent Weibo, Youku,  Twoo, and Ask.fm. The proposed changes would affect nearly 14 million foreign nationals who enter the U.S. annually for a variety of reasons.

Implications

If approved, the new screening procedures would likely slow the visa allocation processes. The data collection processes requires consular officers to collect years of data of social media content. Although the provision would not impact foreign national visitors from countries included in the Visa Waiver Program, it would impact millions of visitors annually. Many groups, like the American Civil Liberties Union ACLU, have openly opposed the new proposal because the screening procedures infringe upon the privacy and rights of foreign nationals. If the State Department receives funds for the new procedure, the change would be yet another move from the Trump Administration to curb legal immigration into the U.S.

USCIS to Destroy Returned Green Cards, EADs, & Travel Documents after 60 Days

USCIS announced recently that, beginning April 2nd, all Permanent Resident Cards, Employment Authorization Cards (EADs), and Travel Documents returned as undeliverable by the United States Postal Service (USPS) will be destroyed after 60 business days unless USCIS is contacted by the recipient. A change of address, without proper reporting to USCIS, could result in a destroyed document

Change of Address

According to the USCIS website, if a non-U.S. living in the United States moves domestically, that individual must report their change of address within 10 days. Exceptions include:

  • Diplomats (visa status A),
  • Official government representatives to an international organization (visa status G), and
  • Certain nonimmigrants who do not possess a visa and who are in the U.S. for less than 30 days.

Those not included in the above circumstance must report any change of address to remain in compliance with U.S. law. Penalties for failure to comply with reporting requirements include a fine up to $200 and a misdemeanor charge. To report a change of address, and to insure that important immigration documents are not destroyed by USCIS, non-citizens must submit a Form AR-11. The form can be completed online, or through mail. If a non-citizen opts to report their change of address through the paper method, USCIS recommends using a certified mailing system. A paper Form AR-11 will not update your address on any pending USCIS applications, so applicants must call USCIS at 1-800-375-5283 to update the address on the pending applications. The online method of reporting an address change allows users to report an address change and also to update it on the pending applications.

The announcement to destroy return documents will prove to be an added burden on foreign nationals. Although the measure ensures security, those who do not contact USCIS to report a problem with receiving sensitive documents will be greatly impacted by a destroyed green card, EAD, or other travel document.

USCIS Processing Times Gain Transparency

USCIS recently announced exciting news for those with pending USCIS cases. A new pilot website now offers a user-friendly platform that estimates the processing time for your application. The website is still in the testing stages and will first offer the service to four types of forms.

Clearer Processing Times

Several factors impact the processing time of any given USCIS application or petition. Location, type of application, backlogs, among other limitations can impact processing times by several months. With the new pilot website, those who file the following forms will have access to automated, personalized processing estimations:

  • Form N-400, Application for Naturalization;
  • Form I-90, Application to Replace Permanent Resident Card;
  • Form I-485, Application to Register Permanent Residence or Adjust Status; and
  • Form I-751, Petition to Remove Conditions on Residence.

For applicants in the above categories, the new USCIS website will provide an approximate processing date range following a series of questions regarding the circumstance of your application. The website generates a range starting with a lower bound estimation, representing the median processing time, and an upper bound estimation, representing the period of time taken to process 93% of cases. For example, an individual would check the processing time for their application for naturalization by entering their type of form (N-400), and processing center location. The website will produce an easy to read range, for example 6 months – 9.5 months, representing regional estimates for processing similar applications. This tool will allow for a more precise timeline for individuals who are often left with vague response regarding the processing time of their case.

Case Inquiries

 According to the USCIS website, the agency asks that applicants wait the entire period of the upper end estimate provided by the new website to make an “outside normal processing time” case inquiry. Drawing from the previous scenario, the individual applying for naturalization would have to wait 9.5 months after filing their N-400 before submitting a service request or contacting USCIS. 

 

Affidavit of Support for Visitor Visa (B-1/ B-2)

An Affidavit of Support can be extremely helpful in most cases, but not when it comes to B-1/B-2 Visitor Visas. If you wish to “sponsor” a friend or family for a B-1/B-2 visitor visa, filing a Form I-134 may cause more harm than good.

What is an Affidavit of Support?

A Form I-134 affidavit of support serves as a visa applicant’s evidence of sponsorship, or evidence that the applicant has financial support and will not become a public charge of the United States. The form documents the personal finances of a sponsor currently in the U.S. and provides that a nonimmigrant entering the U.S. will not become financially dependent on federal welfare programs. Given the nature of the B-1/ B-2 visitor visas, an affidavit of support is not considered by consular officers because the foreign national is not expected to be in the U.S. for an extended period.

Financial Consideration B-1/B-2 Visa

Some family members or friends mistakenly file an affidavit of support for a B-1/B-2 visa applicant due to the financial considerations within the application. The application for B-1/B-2 asks about the financial state of the person or entity financially responsible for the trip to the United States. The purpose of this inquiry is to determine whether the applicant has the financial means to afford the extensive costs of the trip. In addition, consular officers often examine the applicant’s financial information during the interview to determine whether the applicant is an “intending immigrant,” or that the applicant intends to stay in the U.S. permanently.

Affidavit of Support Could Harm B-1/B-2 Application

An application for a B-1/B-2 visa is adjudicated based on visa applicant’s qualification and eligibility. The consular officer makes a determination by focusing on, amongst other factors, applicant’s social and economic ties to his/her home abroad. Since finance is an important part of this process, we do not recommend that a family member or friend submit an affidavit of support for a B-1/B-2 visa applicant unless a U.S. consular specifically requests a Form I-134. If submitted without a request, consular officers may consider the affidavit of support as evidence of the applicant’s inability to pay for the proposed trip.

Scheduling an InfoPass Appointment: Online Services Could Soon End

InfoPass is a free online service that allows individuals to schedule an appointment with a USCIS immigration officer. The online platform offers 12 different languages to make scheduling an in-person appointment easier. InfoPass is accessible from both computers and mobile devices to make scheduling available anywhere. The appointments scheduled through InfoPass are intended for specific inquires, while routine matters are typically handled through the phone or online. Nevertheless, recent reports warn that the InfoPass online scheduler could soon be obsolete. Under the new program, the USCIS National Customer Service Center would first handle all requests for an in-person appointment.

Regional USICIS offices in Hartford, CT; El Paso, TX; Jacksonville, FL; Sacramento, CA; and San Francisco, CA may be the first centers included in the new pilot program for scheduling InfoPass appointments. Under the program, scheduling InfoPass appointments at the above mentioned USCIS field offices will now be facilitated through the USCIS National Customer Service Center. If implemented across the nation, the program would eliminate the self-scheduling InfoPass appointment feature online. The new change comes in conjunction with new efforts to increase efficiency by decreasing self-scheduled InfoPass appointments for inquiries better addressed by the USCIS National Customer Service Center or through the USCIS website.

To make an InfoPass appointment at one of the selected pilot USCIS field offices, one must now first call the Service Center (1-800-375-5283), speak to a Tier 1 officer, and request to schedule an InfoPass appointment. The call will then be escalated to Tier 2 officer who will review the case and will confirm if the issue is appropriate for an InfoPass appointment before scheduling the appointment. The reports of the new pilot program are not yet confirmed online by USCIS; however, we will continue to monitor the situation.

New USCIS Requirements: Valid Signature

Last week, USCIS released a memo outlining stricter requirements for petitioners and applicants seeking immigration benefits. The memo outlines that a petitioner or applicant must provide a “valid signature” to receive approval from a USCIS. A valid signature is defined by USCIS as any handwritten mark or sign by an individual to signify his or her knowledge of the contents of the request. It is not required that the valid signature be legible or in English, nor is it required to be in cursive handwriting. An individual unable to write in language may use “X” or a similar mark as a signature. As per USCIS, a signature created by a typewriter, world processor, stamp, auto-pen or similar device is not acceptable.

Previous Policy

According to a previous memorandum, petitioners or applicants previously could use power of attorney (POA) signatures for applications for immigration benefits. This was allowed under general agency principles[1]. However, the Department of Justice (DOJ) found that signatures from POAs “create an additional evidentiary burden, making it more difficult to litigate or prosecute immigration fraud when the filing is signed and filed by a POA.” Additionally, USCIS found that adjudicating officers did not treat applications with POA signatures with consistent scrutiny.

New Changes

According to USCIS, the petitioner must write an authorized signature. Failure to comply may result in a rejected form. For example, a petition for a high skilled worker (H-1B) must include the signature of an authorized employer. The new requirement excludes applications on behalf of minors under the age of 14 and applicants who are mentally incompetent. USCIS will reject and return any request for immigration benefits not accompanied by a valid signature. Additionally, USCIS reiterated that a Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative, does not authorize a representative to sign the forms on behalf of the petitioner or the beneficiary.  

Conclusion

While it is good news to see USCIS bring in consistency among USCIS officers and offices while increasing efforts to crack down on immigration fraud, this new requirement will put an additional burden on the businesses who, at times, are unavailable to sign the forms at a short notice. For corporations utilizing legal entities for administrative ease, the new requirement will present a hassle starting March 17th of this year when the guidance becomes effective.

[1] Under general legal principles, an individual or entity may authorize another to act on his or her behalf, and that person becomes an “Agent.”

 

AAO on Related Entities: Multiple Petitions for Same Beneficiary (H-1B Cap)

In matters of multiple H-1B petitions filed for the same beneficiary, last month the Administrative Appeals Office (AAO) ruled, in a non-precedent decision, that “related entities” shall be interpreted beyond legal relations. Although the decision is not legally binding for USCIS, the case indicates that USCIS intends to crack down on petitioners attempting to beat the lottery system.

Multiple Petitioners for the Same Beneficiary

Each fiscal year, the total number of H-1B visas issued may not exceed 65,000 (additional 20,000 for those who have an advanced-degree from the U.S.). Once the filing cap is reached, a lottery system selects a lucky few recipients for the fiscal year. To stack the deck in their favor, USCIS found that multiple petitioners attempt each year to file for the same beneficiary. With more than one petition filed for the same beneficiary, these beneficiaries tend to have a greater chance of receiving the H-1B visa. However according to USCIS, “An employer may not file, in the same fiscal year, more than one H-1B petition on behalf of the same alien.” Additionally, subsidiaries or affiliates, or “related entities,” may not file concurrent H-1B petitions without “legitimate business need.” If suspected that an affiliate or subsidiary of the same organization filed more than one petition without a legitimate business need, then USCIS can send a RFE, notice of intent to deny, notice of intent to revoke. Before the AAO ruling, the “related entities” largely meant a legal relationship existed between the two entities.

Matter of S-S-INC

In the Matter of S-S-INC, the petitioner attempted to hire a “programmer analyst” by filing a H-1B petition. Another petition was filed for the same beneficiary by another petitioner, C-LLC. Since the two companies intended to send the same H-1B beneficiary to the same “end-client,” USCIS found that the two entities were “related entities.” USCIS reached this conclusion even though C-LLC and S-S-INC had no legal relationship.

With the upcoming Fiscal Year 2019 H-1B cap season, employer should be mindful of this decision and should not inadvertently scuttle their employee’s chances of obtaining the H-1B status.

Public Charges Must Go: Changes to FAM

While the debate over immigration continues in Washington, a lot of questions have emerged regarding “public charge” non-citizens. Last week, the White House released proposed guidance for DACA recipients in which “Status is subject to revocation for criminal conduct or public safety and national security concerns, public charge, fraud, etc.” The announcement comes in addition to rumors that legal immigrants, who receive government assistance, could soon be at risk for deportation. The measure signals yet another attempt by the Trump administration to curb legal immigration.

Public Charge Definition

According to USCIS a public charge is “an individual who is likely to become primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or institutionalization for long-term care at government expense.” However, there are a few exceptions that exempt recipients of federal aid of public charge status. Until recently, adjudicating officers considered “past or current receipt of public assistance of any type” as grounds for inadmissibility for pending visa applications. Many life events, including recent college graduation, can account for the need for public assistance. In these instances, the INA allows officers to use discretion in adjudication if the applicant appears to have circumstances to overcome public charge status (i.e. recent job offer). Conversely, if an applicant does not have positive circumstances to overcome dependence on public assistance, an adjudicating officer has the liberty to classify the applicant as inadmissible.

Implications

Previously, the public charge grounds for inadmissibility primarily impacted low-wage green card applicants. The updated and reorganized changes to FAM (Foreign Affair Manual) put out via a Policy Memo by the Department of State (DOS), however, instructs consular officers to consider other factors while adjudication applications for immigrants who depend on certain government programs. For example, an applicant’s past receipt of public assistance could be very significant where the applicant’s spouse was the family’s primary income earner, but recently died. In such a case, the applicant’s recent change in family status and likely change in financial status would weigh heavily in considering the totality of the circumstances. Additionally, the revision provides that a “properly filed and sufficient non-fraudulent” Affidavit of Support by itself may not satisfy the public charge requirement. So even though a properly filed and sufficient Affidavit of Support is essential, it does not preclude denial on public charge ground. The consular officers have been instructed to factor in the totality of the applicant’s circumstances by taking into consideration other factors like if the applicant is in very poor health, is unable to work, and is likely to incur significant medical costs.  The change to FAM originates from political distaste for immigrant dependence on public assistance, regardless of the low rate of public assistance for non-citizens. Those who are legally in the US and are beneficiaries of certain public assistance programs are typically in short-term financial stress. These changes could severely impact those living in the US under already dire circumstances.

Can I travel to the US during Administrative Processing? (CBP, DOS)

If your visa application is held by a consulate office for administrative processing, your case could be delayed for up to 60 days. Typically, the US consulate reviewing an application in administrative processing will not reveal the estimated period of delay nor will a consular officer reveal the reasons for the delay. For those with plans to travel to the United States, administrative processing could delay travel for several months. Thankfully, the Department of State (DOS) offered information late last year that benefits those with visa applications in administrative processing.

Valid Existing Visa

According to the DOS, an existing visa will not be cancelled while a new application is pending administrative processing in a US consulate. However, the consulate will cancel previously approved, valid visas if “derogatory information” emerges during review.  Therefore, if someone plans to enter the US while their new visa application is held for administrative processing, the traveler can apply for admission into the US only if they possess a valid nonimmigrant visa. If a traveler utilizes a previously issued visa, then they must comply with the terms of that visa. For example, if an individual enters the US with a valid B-1/B-2 visa, they should not enter the country with the intention to work.

CBP Maintains Authority

Although a previously issued visa may be valid during a pending administrative processing hold, Customs and Border Patrol (CBP) maintains the authority to determine admissibility. Thus, an application for entry could be denied by CBP, regardless if the previously issued visa is valid. If you require assistance with your future travel plans, feel free to contact our office to schedule a consultation.

Government Shutdown: What it means for your visa application

In the early morning of January 20th, officials in Congress and the White House announced that the federal government would shut down. The shutdown came after the Senate failed to pass legislation approving federal spending for the next year. To enable the operations of the federal government, including major bureaucratic agencies like the Department of Labor (DOL), both houses of Congress must agree upon and pass legislation to fund the government for limited period of time. Over the years, Congress has become less efficient in passing funding legislation, passing appropriations on a yearly basis as opposed to long term. Therefore, the recent shutdown occurred due to an ongoing political debate in Congress that inhibited negotiations on annual federal spending.

Although Senate Republicans and Democrats reached an agreement Monday afternoon to fund the government for the next three weeks, a looming government shutdown remains for February 8th. With government agencies closed, many people with pending visa applications are uncertain about the upcoming spending vote.  Here is what to expect if the government shuts down again in February:

Timeline of DOL Applications Shift

Since the Office of Foreign Labor Certification (OFLC) is associated with the Department of Labor (DOL), employees are furloughed (or prevented from working) during the shutdown. Prior to the shutdown, OFLC reported an increase in the number of LCAs, therefore a long-term shut down could create a substantial backlog. Any application submitted during a shutdown will be processed at the time that the government reopens. Thus, permanent labor certification applications (PERM) submitted by employers (either through mail or hand delivery) during the shutdown will not process through OFLC until the government reopens. The iCERT website that is used for the online PERM submission also is shut down. Therefore, applications with timely recruitment or prevailing wage determinations may be out of date once the government reopens. Previously in 2013, employers were given an extension for necessary recruitment or prevailing wage determinations if the shutdown delayed submission of PERM.  Applicants should note that OFLC will not have access to email, and therefore will not be able to respond to requests or questions during a shutdown.

USCIS, CBP, & DOS

USCIS is a fee-funded agency with the exception of E-Verify and will remain open during a shutdown, however E-Verify will not be available. Due to national security concerns, Customs and Border Patrol (CBP) will still operate normally during any shut down. Similarly, Department of State (DOS) which deals with the Visa and passport operations are fee-funded and generally are not impacted by the shutdown but since the embassy operations are not fee-funded so visas can be affected, and the consular posts will generally only handle diplomatic visas and “life or death” emergencies. 

If you have any concern regarding the potential impacts of a shutdown on your application, please feel free to schedule a consultation with our office.