District Court Reinstates “Start-up Visa”

On December 1st, United States district judge James Boasberg ruled the Trump Administration’s delay of the Obama-Era International Entrepreneur Rule an unlawful use of administrative power. The ruling effectively reinstates the “start-up visa” program until further response from the administration.

Ruling

In NVCA v. Duke, the National Venture Capital Association (NVCA), a group of entrepreneurs and start up owners, sued the Department of Homeland Security for a decision to delay the International Entrepreneur Rule. The DHS delay followed the President’s executive order, Border Security and Immigration Enforcement Improvements (February 2017), that ended many immigration benefits. The NVCA sued based on the DHS’s violation of proper procedural requirements for administrative rules. Because the delay went into effect without notice or comment to the public, the judge ruled that NVCA had grounds to sue based on procedural requirements in the Administrative Procedure Act. The district court’s ruling in favor of NVCA reinstates the Obama-era rule effective immediately.

International Entrepreneur Rule

 The rule, set to go into effect in July of 2017 before the executive order, allows certain promising founders of startups to enter the United States to start growing their company. The visa program is intended for the benefit of the US economy due to startup potential for job creation and innovation. If approved through the international entrepreneurship rule, DHS can use “parole” authority to grant a period of authorized stay for certain entrepreneurs who did not qualify for other specialized visas (like H1-B). According to USCIS, this program has the potential to admit nearly 3,000 entrepreneurs annually. Eligible entrepreneurs can receive a period of stay up to 30 months with the potential to extend the period of stay an additional 30 days. The court ruling is a big win for foreign entrepreneurs, as well as for the US economy. The program promises to provide more US jobs as new startups expand across the country.

USCIS Defines Function Manager for EB-1 Category

In a Policy Memorandum released November 8th, USCIS defined “function manager” in terms consistent with the Administrative Appeals Office (AAO) decision in Matters of G- Inc. In the case, the Director of the Nebraska Service Center denied the petitioner’s Form I-140 on grounds that the beneficiary, a function manager for the company, was not eligible for green card in EB-1 category under the current definition of “managerial capacity” outlined in the INA.  To be considered for an employment based, first preference visa, petitioners must demonstrate that the beneficiary’s function of employment serves in an executive or managerial capacity.

The company appealed, arguing that the function manager, although not directly in charge of other administrative staff, aids in promoting the “essential function” of operations within the company while additionally functioning in a qualifying “managerial capacity”. In the matter, AAO defined a function manager for the purpose of EB visa petitions.

In accordance to the appeal decision, the recent USCIS memorandum now defines “function manager” in a managerial capacity if the petitioner demonstrates the following of the function of employment:

  • The function is a clearly defined activity;
  • The function is “essential,” i.e., core to the organization;
  • The beneficiary will primarily manage, as opposed to perform, the function;
  • The beneficiary will act at a senior level within the organizational hierarchy or with respect to the function managed;
  • The beneficiary will exercise discretion over the function’s day-to-day operations.

Once the petitioner has established the above, USCIS employees are instructed to consider the beneficiary “function managers” for first preference immigrant classification for multinational executives or managers.

TSA to Enforce Real-ID Standards

If you have traveled domestically in recent months, you probably noticed signs posted by the Transportation and Security Agency (TSA). The posting notifies passengers of new regulations for acceptable state identification requirements for travel within the US. Due to the REAL-ID Act (2005), TSA security agents will no longer accept IDs, or driver’s licenses from certain states. Since airlines are federally regulated agencies, Congress can create new standards to ensure traveler safety. The federal act creates minimum security standards for obtaining state identification, rejecting some state’s loose policies for obtaining driver’s licenses. Starting January 22nd of next year, TSA agents will require an additional form of identification if an adult passenger 18 or over possess a driver’s license or state issued ID from the following states:

  • Kentucky, Maine, Minnesota, Missouri, Montana, Oklahoma, Pennsylvania, South Carolina, and Washington

What if I have a Permanent Resident Card?

If you reside in one of the above states, then your state driver’s license will not be adequate to pass through airport security for a domestic flight. If you are traveling within the US, a permanent resident card is an acceptable form of ID. Additionally, if you possess a government issued foreign passport, DHS trusted travelers card (e.g. Global Entry Card), or a USCIS employment authorization card you may use those forms of identification to fly within the US. According to DHS, “Aliens lawfully admitted for permanent or temporary residence, aliens with conditional permanent resident status, aliens with an approved application for asylum, and aliens who have entered the United States as refugees are eligible for a full-term REAL ID license or identification card.” It may be beneficial to carry more than one form of ID to avoid any inconvenience while passing through security.

The Real-ID standard may still affect residents of states not included in the above list. Many states not included in the list do not meet the minimum requirements under the law, but the federal government has granted limited extensions for certain states. Once you have made your travel arrangements, it is important to stay updated on the current list of unqualified state IDs.

Avoiding USCIS Scams

Around the world, foreign nationals are being targeted by immigration scams. The threat is so prevalent and expansive that the www.uscis.gov reserves an entire section of the website for immigration scam protection and prevention. USCIS requires monetary payments from visa applicants for a variety of filing fees and other expenses. Those who are awaiting decisions on their pending application can be especially vulnerable to USCIS scams. Here are a few things to look out for in potential scammers:

  1. The caller informs you of an issue with your application, but requires payment over the phone

USCIS will never request payment through the phone or via email. If the scammer is impersonating a USCIS officer, they will attempt to persuade you of the immediate necessity of funds for your eligibility approval. However, genuine USCIS requests for payment (if any to begin with) will always be relayed through a letter via USPS on official USCIS stationary.

  1. Award of Lottery Visa or Green Card by U.S. State Department Email

According to USCIS, if you are selected by the green card lottery program (also known as Diversity Visa) you will not receive an email. Instead, you will be notified through the Electronic Diversity Visa  website.

  1. Scam USCIS Websites

There are several scam website that promote false opportunities for employment or expedited visa approval opportunities. Similarly, there are websites that falsely claim to be affiliated with USCIS and other U.S. departments. Each official government website ends with a .GOV (e.g. uscis.gov). Additionally, USCIS will never ask for an applicant to pay to download a USCIS form. If you are asked to provide money for access for an immigration form or any supplemental information, you may be on a fake website impersonating to be a USCIS website.

If you are unsure of the validity of a certain form, you can contact your local USCIS office for verification or can call USCIS customer service at 800-375-5282.

Apply for EAD and SSN Simultaneously

To work lawfully in the United States, you may need to obtain a Social Security Number (SSN) from the Social Security Administration (SSA). SSNs report wages to the government and determine eligibility for certain government programs.

Earlier last month, USCIS released a new Employment Authorization Document (EAD) that now includes the option to apply for work authorization and a social security number at once. Through an information collaboration between the Social Security Administration and USCIS, foreign nationals will no longer be obligated to apply separately for a social security number.

Old Process

Previously, foreign nationals applied for Social Security Numbers in person at a local Social Security office. The in-person application process required proof of identity, proof of work authorization, two additional documents proving age, and of course a visit to a local SSA office. The process was often time consuming due to high demand and documentation requirements.

New Process

The new EAD form now includes additional questions to apply for a SSN or SSN replacement without an in-person trip to the SSA. Through the data sharing collaboration, USCIS will send the relevant EAD information to the SSA for processing. Once SSA receives the information from the USCIS, the applicant can expect to receive a social security card within two weeks. 

I-693 Form: Medical Examination and Vaccination Record

An application for Adjustment of Status (AOS) for permanent residency requires many forms and documentation. One such document is a completed I-693 medical examination form. According to USCIS, applications for permanent residents require a medical examination and must provide a I-693 form completed by a designated civil surgeon (or doctor). The results of the medical examination sometimes determine admissibility.

INA Health Terms of Inadmissibility

The medical examination tests for grounds of inadmissibility based off health concerns of national interest. The civil surgeon will check for a varying disease and disorders that may restrict the applicant’s access to permanent residence. The INA lists the guidelines for inadmissibility. If the approved civil surgeon detects a “communicable” disease, the applicant will be found inadmissible. Additionally, an applicant must provide evidence of vaccines for “mumps, measles, rubella, polio, tetanus and diphtheria toxoids, pertussis, influenza type B and hepatitis B, and any other vaccinations against vaccine-preventable diseases recommended by the Advisory Committee for Immunization Practices.” However, there are vaccine exemptions for children under the age of 10. The INA also includes guidelines for applicants with serious mental or physical disorders that may be a threat to others. Applicants that abuse controlled substances will also be consider inadmissible.

The Exam

Applicants must find a USCIS approved civil surgeon, or doctor. The approved doctor will conduct tests for certain communicable diseases as well as check recent vaccination documents for any missed vaccines. Applicants will provide the doctor with the I-693 form, which he or she will seal inside an envelope for submission to USCIS. The doctor can provide a photo copy of the examination for patient’s personal records, however USCIS will only accepted an official seal copy of the examination. Learn more about the validity of medical examinations here.

Employment-Based Interview Update

Under the direction of the executive order “Protecting the Nation From Foreign Terrorist Entry Into the United States,” USCIS announced plans to require interviews for adjustment of status (AOS) based on employment. Previously, only a small percentage of employment-based AOS required an in person interview. Now, USCIS will require all employment AOS petitioners with pending I-140 must submit to an interview. The sudden changes created many questions or concern. Months later, a CIS Ombudsman stakeholder call has provided clarification detailing the new procedural changes.

Interview Coordinators: SCOPS, NBC, and Field Offices

SCOPS, or the USCIS Service Center Operation Directorate, will continue to adjudicate petitions for AOS based on employment. However, interviews will be facilitated through the National Benefits Center (NBC). NBC will process each case, and coordinate with individual field office to schedule interviews. Applicants located near inundated field offices, like in Atlanta, should expect long wait times for a scheduled interview.

Interview Changes

Once a person’s application has been adjudicated through SCOPS, the field office will not readjudicate the case. The field officers will ask questions about the nature of the employment based AOS. Possible questions include topics of:

  • Employment location
  • Nature of Employment
  • Level of Education held

However, new types of questions may arise as the new initiative aims at “protect[ing] the integrity” of the immigration system.

The new in person interview requirement for employment-based AOS may have a lasting effect on the green card process. The top field offices, which includes Atlanta, have slowed processing times. Although USCIS claims the workload will not increase inefficiency, it may take time to realize the full impact of the interview requirement. Backlog will most likely increase. If you have any questions about adjustment of status complications, feel free to contact our office.

Understanding Your Status: Lawful Status, Period of Authorized Stay, & Lawful Presence

A foreign national’s legal status at the time of a change, extension, or adjustment of status can influence the outcome of an immigration matter. An error in maintaining legal status may prevent the foreign national from receiving the desired immigration benefits. It is important to understand your current legal status and how it may determine your chances for change, extension, or adjustment of status.

 Lawful Nonimmigrant Status

Foreign nationals in lawful nonimmigrant status possess an unexpired arrival/ departure form (I-94) issued by the U.S. Citizenship and Immigration Service (USCIS) or U.S. Customs and Border Protection (CBP). A valid I-94 by itself does not grant a valid status. Foreign nationals must also maintain lawful status by adhering to guidelines set by their visa classification. For example, H-1B visa holders must maintain employment with their petitioning employer during the period of I-94 validity. Failure to satisfy visa regulations will result in a loss of lawful nonimmigrant status.

Period of Authorized Stay

If an application to request change or extend status is filed on behalf of an foreign national before his/her status expires, the foreign national may be in a “period of stay authorized by the Attorney General.” A good example of this would be where a petition to extend the H-1B is filed on behalf of the foreign national before his/her I-94 expires and the petition remains pending with the USCIS awaiting adjudication, after the expiration of the I-94. 

A nonimmigrant maintains a period of authorized stay as long as the application is still pending a decision even though, under certain circumstances, they may fall out of status. If the USCIS eventually approves the pending application or petition for extension or change of status, the foreign national retroactively transitions into status.

Similarly, those with a pending application for adjustment of status without the underling non-immigrant status are generally in period of authorized stay while the application for adjustment of status is pending with the USCIS.

Out of Status & Unlawful Presence

Foreign nationals not in period of authorized stay or not maintaining lawful nonimmigrant status are considered unlawfully present in the U.S and maybe out of status. A good example of unlawful presence would be a scenario where a foreign national with an expired I-94 card continues to be present in the U.S. Such a foreign national would accrue unlawful presence from the date their I-94 expired, and would be subject to re-entry bar after departing the U.S. Unlawful presence for a period longer than 180 day will result in three-year ban from the U.S. If the person was unlawfully present for a period of one year or more, then the person is banned from the U.S. for a period of ten years. It is important to understand the subtle distinction between out of status and unlawful presence. A person with a valid I-94 who fails to maintain his/her status is out of status through not unlawfully present in the U.S. (hence not accruing the unlawful presence inadmissibility bar). However, it would be hard for them to obtain future immigration or visa benefits.

For foreign nationals with a timely filed application or petition for extension, change, or adjustment of status, the unlawful presence begins on the denial date. Foreign nationals who are out of status or unlawfully present, are subject to removal from the U.S.

Conclusion

 It is imperative to understand your status before applying for extended stay or adjustment of status. The complexities between lawful status, out of status, period of authorized stay, and unlawful presence greatly impact the immigration process. If you have any question regarding your legal status, feel free to contact our office to schedule a consultation.

FOIA Request to Resolve Immigration Issues

The Freedom of Information Act (FOIA) gives any person the right to request access to records and documents from government agencies. Individuals with pending immigration cases can make a request under the FOIA for important records held by U.S. Department of State (DOS), Immigration and Customs Enforcement (ICE), Customs and Border Protection (CBP), and U.S. Citizenship and Immigration Services (USCIS), and others. Obtaining records through FOIA may assist in providing the necessary documentation to resolve a pending immigration case.

Helpful for Your Case

Over the years, copies of important records and documents are lost or damaged. A FOIA request can help restore lost copies and provide evidence of immigration history, which is necessary for status renewal or adjustment of status. Those seeking records may also benefit from obtaining access to materials of adjudication from previous cases (like notes from USCIS officers). Accessing these materials may aid in expediting pending or future immigration cases.

How to Make a FOIA Request

There are a variety of ways to request documents under FOIA, however the process may be difficult to navigate. Each request for an immigration document is filed through the agency designated to that particular record. For example, one must request an A-file (alien file) through USCIS by submitting a Form G-639, while CBP processes requests for I-94 records. It may take a long time before a request is processed. A high-volume request may take longer to process than a more directed request that require only a few documents, so the timeline of each request varies drastically.

Records NOT Covered Under FOIA

The Freedom of Information/ Privacy Act does not allow for complete access to all documents held by government agencies. FOIA contains 9 exceptions that include protections of individual privacy, national security, and trade secrets. If an immigration case is currently under investigation by a federal agency, like the FBI, the documents and records will not be public under FOIA.

Conclusion

It is crucial to possess required records and documents for your immigration case. FOIA facilitates freedoms of information, but in a complex and convoluted manner. It can be difficult to know which documents you need, and from what federal agencies. Sharma Law Offices can assist you with navigating your FOIA request for records.

 

Steps to Replace Lost Passport with U.S. Visa

Losing a passport with a valid visa, particularly in a foreign country, is always a huge setback especially for those who are on a short vacation and must return to the U.S.  to resume their employment or to attend school.  Irrespective of the care one takes to guard important documents, every year many passports are stolen. If you notice that your passport containing a U.S. visa is either missing or stolen, it is important to follow these steps to obtain new documents.

File a Police Report

As soon as you realize your documents are missing, go to your local police station and report the loss. According to the U.S. Department of State, it is necessary have a copy of the police report detailing the missing or stolen passport to re-apply for a new passport & visa.

Report Missing Passport to Your Native Country

Obtaining a new passport will depend on your country of citizenship. Most countries have websites that assist in the reporting of a lost or stolen passport. You can contact your local embassy or consular section for your country of citizenship for more information regarding replacement of the lost documents.

Report Missing Visa U.S. Embassy Abroad

Contact the consular section of the U.S. Embassy or consulate abroad that issued your visa. Provide the office with as much identifying information as possible (Name, Date of Birth, Place of Birth, U.S. address, etc.) and indicate whether the visa was lost or stolen. Make sure you include any documentation of your original passport and visa (i.e. Digital scans of original documents). Once you have reported your lost or stolen visa, that visa will no longer be valid for travel to the United States. Even if you later find your misplaced visa, you must apply for a new visa at the U.S. Embassy or Consulate.

Reapply for U.S. Visa

You cannot replace your lost or stolen visa in the United States. To replace your lost visa, you must apply in person at a U.S. Embassy or consulate abroad. You will need to have documentation of your lost or stolen visa, including a copy of your police report.  

It is important to keep track of all important travel documents to prevent future issues. It is highly recommended that one should have a copy of one’s passport and visa as it would help the consulate locate the information in a timely manner.