Switching between Adjustment of Status and Consular Processing

Switching between Adjustment of Status and Consular Processing

At the time of filing the immigrant petition, the petitioner must indicate if the beneficiary of the petition will adjust status within the United States, a process commonly referred to as Adjustment of Status (AOS) or will apply for an immigrant visa at the U.S. consulate, a process commonly referred to as Consular Processing (CP).

Generally, AOS is a preferred route if the beneficiary is present in the U.S. as the beneficiary can continue to live in the U.S. during this process. Additional benefits of filing AOS include ability to obtain work permit (EAD) while they wait for their AOS application to be adjudicated. While the petitioner is not allowed to select both AOS and CP, if circumstances demand, it is allowed to switch between the two.   

Consular Processing to Adjustment of Status

A transfer from CP to AOS is very straightforward as you just need to file Form I-485 (AOS) along with other ancillary benefits with the USCIS. Once the application for AOS is filed the CP is terminated and the immigrant petition and related documents are transferred from National Visa Center (NVC) to USCIS where they are adjudicated once the priority date becomes current.

Adjustment of Status to Consular Processing

A transfer from AOS to CP is not as straight forward as the other way around. If an immigrant petition was originally marked as AOS and then a decision is made to change it to CP, the petitioner must, upon approval of immigrant petition, first file Form I-824 to notify the change to USCIS. Once USCIS adjudicates the Form I-824, the case is transferred to NVC for it to initiate the CP. Due to long processing time of Form I-824, it is recommended that the form I-824 should be filed as early as possible.

Conclusion

For someone desiring benefit of both CP and AOS, it is generally a better strategy to mark the immigrant petition for CP as it can be converted to AOS at any point of time without any additional costs and delay.

DHS Proposed Rule on Alternatives for I-9 Document Review

Form I-9, employment eligibility verification, is used to verify the identity and employment authorization of individuals hired for employment in the United States. This is required by all U.S. employers for everyone they hire for employment in the United States. Both the employer and employee are required to complete the form.  As part of the completing the Form I-9, the employer is required to examine the employment eligibility and identity document(s) an employee presents for the employer to determine if the document(s) reasonably appear to be genuine.

At the onset of COVID, with remote work becoming a new norm, Department of Homeland Security (DHS) issued temporary guidance giving employer the ability to review these documents remotely. Specifically, employers are allowed to view documents via email, video, or fax as long as they can retain copies of the documents. This authorization/flexibility is set to expire on October 31, 2022.

On August 18, 2022, DHS published a notice of proposed rulemaking (NPRM) on the optional alternatives to the physical document required by Form I-9. The proposal will not change the I-9 process thereby allowing employers to permanently use such an alternative review option in the future but would rather create a blueprint to give DHS more flexibility to determine the time and way to alter the requirement to physical inspection in times of need such as a national health crisis. Additionally, under the rule DHS would have broad authority to be able to implement permanent changes to the process after a limited pilot program.

The public has 60 days, until October 17, 2022, to comment on the proposed rule.

Vaccination Waiver (COVID 19 & others) for Immigration Medical Exam

At the time of filing of the immigrant visa at the US Consulate or an application to adjust status with the US Citizenship & Immigration Status (USCIS), every applicant must include Form I-693, Report of Medical Examination and Vaccination Record, signed by a Panel Physician/Civil Surgeon that documents that the applicant is up to date on all vaccinations designated as mandatory by the USCIS. Under US immigration law, all applicants are required to have received the vaccines against the following disease:

  • Measles
  • Mumps
  • Pertussis
  • Rubella
  • Polio
  • Tetanus and Diphtheria Toxoids
  • Influenza Type B
  • Hepatitis B
  • Meningococcal disease
  • Varicella
  • Pneumococcal disease
  • any other diseases, preventable by vaccine, that are recommended by Advisory Committee for Immunization Practices (ACIP[1])

The vaccine requirement maybe waived if the panel physician/civil surgeon deems a specific vaccine medically inappropriate for the beneficiary or if the vaccine is not age-appropriate, the vaccine is contraindicated, lack of availability of a vaccine, there is insufficient time interval to complete the vaccination services, or similar other reason(s).

There is also a waiver available for individuals who can establish that compliance with the vaccine requirements would be contrary to their Religious Belief or Moral Conviction. This waiver is available only if the individual is opposed to all kinds of vaccination (not just a certain one).

Specifically, to meet the waiver on Religious Belief or Moral Conviction, the individual will need to meet the following requirements:

  1. The individual is opposed to all vaccinations in any form.
  2. The objection is based on religious belief or moral conviction.
  3. The religious belief or moral conviction is sincere.

As generally is the case with all waivers, a waiver of vaccination requirement requires an officer to exercise discretion on a case-by-case basis. A favorable exercise of discretion if generally warranted if the individual meets the requirements outlined above.

Additional information about waivers is available on the Department of State and USCIS websites. If you have specific questions about your case or waivers in general, please schedule a consultation with our office.

[1] ACIP comprises of medical and public health experts who develop recommendations on the use of vaccines in the civilian populations.

USCIS & DHS Takedown Immigration Fraud Scheme Directed at Families

In Florida, federal prosecutors and the United States Attorney Maria Chapa Lopez announced indictment charges for Erika Paola Intriago, of Tampa, Florida. Intriago stands accused of four counts of wire fraud and three counts of wrongfully using government seals. Allegedly, Intriago posed as an immigration attorney through social media, manipulating immigrants and immigrant families from Florida to Illinois. If proven guilty, Intriago could face a penalty of 20 years for each count of wire fraud and up to five years in prison for each count of unauthorized use of governments seals.

Alleged Scheme

According to the indictment released by the Department of Justice (DOJ), Intriago posed as a licensed and qualified immigration attorney, despite holding no license to practice law in the state of Florida or any state for that matter. Intriago operated a business under the name of “EPI Services, INC” that purportedly helped assist individuals and families with all legal immigration matters. Through social media platforms like Facebook, Intriago advertised her services as a qualified legal expert in immigration matters to Hispanic immigrants around Florida. She particularly targeted vulnerable Spanish-speaking families, claiming to be a licensed immigration attorney. Victims of Intriago’s scheme needed assistance with matters before the United States Citizenship and Immigration Service (USCIS) and other agencies and payed Intriago to communicate between immigration agencies and the immigrant families both domestically and abroad. Intriago manipulated many of her victims by promising to secure her clients legal status if the victims payed through cash or money order. Intriago promised to pay USCIS fees directly, and instead pocketed the money without submitted forms or payments to the government. Intriago also stands accused of unauthorized use of government seals as a part of her scheme. Intriago would allegedly “create, copy, and affix seals of government agencies of the United States, including DHS and USCIS, to email messages, letters, and other documents created for and sent to her client-victims as purported proof that she was and had been acting on their behalf in immigration proceedings.” For some victims who had completed paperwork, Intriago either abandoned the immigration paperwork or did not inform her victims about notices of denial. Those victims who complained to Intriago were further victimized as Intriago would threaten to report undocumented clients to the U.S. Immigration and Customs Enforcement (ICE) Agency for deportation.

If you suspect someone is unlawfully posing as a licensed attorney, or you are someone or are aware of someone who is a possible victim please contact 1-866-DHS-2ICE.

USCIS Introduces Online Fee Calculator

Regardless of the visa application, calculating total fees for filings can be a hassle. But what many don’t realize is that an improperly calculated fee payment would result in rejection of the complete application thereby leading to a longer application process. This tedious process has left many with rejected applications due to citing and submitting the incorrect or incomplete total filing fee. To amend this, USCIS now offers a free Online Fee Calculator to assist those filing their forms through a USCIS agency lockbox facility.

Calculating Fees

From the Immigrant Petition for Aliens Worker (Form I-140) to Applications for Naturalization (Form N-400), applications and petitions for citizenship and immigration benefits require payments to fund processing costs. While a significant sum, these fees enable USCIS to operate as the service almost entirely relies on application and petition fees. Often these fees change to adjust to changing processing costs and inflation. Through the new online calculator, applicants and petitioners can find out the exact filing and biometric fees required for their particular application. The Online Fee Calculator is up to date, and reflects any recent adjustments to fees. The online calculator matches up-to-date filing fees with the forms selected by the drop down menu found on the website. By selecting your form, the fee calculator will either present you with a flat fee rate, or if you filing fee varies, prompt additional information to determine your category or age group. Those who wish to file concurrent forms can multiple form calculations to receive a total filing amount. However, the tool does not currently offer a feature to calculate fees for multiple individuals. Once users have responded to the questionnaire, the Online Fee Calculator will include biometric fees, if necessary, as well as the total fee amount. This total represents the amount that should be filed with applications and petitions submitted to USCIS.

Improper Fees

Each year, USCIS processes millions of applications and petitions. Those which require fees are sometimes submitted with out-of-date and incorrect payments. Those applications are automatically rejected. For those filing at Lockbox facilities, checks, money orders, and credit card payments for applications may include the incorrect fee total. With the new Online Fee Calculator, applicants can rest assured that their fee payment is up-to-date to avoid rejections.

E-Verify During the Shutdown (Government Shutdown Continues)

Message to Users 

While many sections of the federal government remain operational, including the United States Citizenship and Immigration Service (USCIS), other offices remain unopened. As previously reported, entire visa programs, like the Immigrant Investor Visa (EB-5) and Deferred Action for Childhood Arrivals, are at risk of discontinuation. Besides programmatic immigration issues, several maintenance services are unavailable for employers and visa holders. In particular, the E-Verify website, and its included services, have been inaccessible since December 21stof 2018. 

In an official statement, the online employment authorization webservice notes; “Due to the lapse in federal funding, this website will not be actively managed. This website was last updated on December 21, 2018 and will not be updated until after funding is enacted.” To offer further guidance, the website provides a longform explanation of discontinued services. 

Impact

For employers, the shutdown restricts access to E-Verify enrollment, delaying access to vital employee information. Additionally, basic employer operations that utilize E-Verify, especially human resource operations involving foreign national employees, are suspended during the shutdown. To limit long-term issues, the “three-day rule,” which dictates that E-Verify cases must be created within the first three paid days of employment, is suspended for those cases impacted by the shutdown. However, I-9’s must be completed under the “three-day rule” while the government is shut down. Once the government reopens, E-Verify will provide guidance to employers to facilitate the appropriate procedures for creating new cases. Employers are explicitly instructed “not to take adverse action” against those employees impacted by the lapse in E-Verify. 

TNCs

During the shutdown, employees will not be able to resolve TNCs, or Tentative Nonconfirmation of information within the E-Verify employment authorization system. TNCs result when the information filed via E-Verify does not match data available to the Department of Homeland Security or the Social Security Administration. Deadlines to resolve TNCs will be extended by duration of the shutdown. Further guidance regarding TNC resolution deadlines will be made available at the end of the shutdown. 

Government Shutdown: EB-5 Program & Immigration Agencies

In the absence of congressional authorization, the EB-5 foreign investors visa program was set to end on December 21st of 2018. However, following the government shutdown that began on December 20th of 2018 and continues into the 2019, the United States Citizenship and Immigration Service (USCIS) announced that the future of the EB-5 program will remain pending until funding legislation passes in Congress. However, the shutdown will not drastically impact other application processes for visa benefits.

Impact on EB-5 Applications Prior to December 21st

USCIS notes that any Form I-924, Application for Regional Center Designation Under the Immigrant Investor Program, will not be accepted as of December 21st. Those Form I-924 applications still pending will remain on hold until funding is either allocated or denied to the EB-5 program. USCIS notes that it will continue to accept regional center-affiliated Form I-526s,  Immigrant Petition by Alien Entrepreneur, and Forms I-485, Application to Register Permanent Residence or Adjust Status submitted before close of business on December 22nd. However, the aforementioned applications will remain on hold until the end of the government shutdown.

Additional Visas Impacted

As reported during the last government shutdown, most vital functions of the United States government will continue while the government is shutdown. In particular, the US Customs and Border Patrol (CBP) will continue to function at ports of entry. Therefore, foreign nationals need not cancel travel plans abroad during the shutdown. The US Citizenship and Immigration Service (USCIS) will additionally remain open during the shutdown. Thus, any applications or petitions that include fee processing, will continue to be processed through the shutdown (e.g. adjustment of status, etc.). Visa processing services provided by US consulates, and managed by the Department of State, will also continue while the government is shutdown. The Department of Labor, which received funding in September of 2018, will continue Labor Condition Application processing. Although these essential government agencies will remain open during the shutdown, it is unclear when the shutdown will end, and whether programs like the EB-5 visa program, will continue into 2019.

DHS Proposed Rule: New Changes to Public Charge Inadmissibility

The Department of Homeland Security (DHS) has released a new proposed rule which would outline the ways in which the agency determines a foreign national is inadmissible due to risk of becoming a public charge. Foreign nationals who wish to enter the U.S. or adjust their immigration status must provide evidence of financial stability, and establish that they will not become a ‘public charge,’ or dependent on government assistance, during their stay. Public charge inadmissibility does not, however, currently apply to naturalization proceedings or other protected classes of nonimmigrants. The new proposal seeks to require foreign nationals seeking extensions of status or adjustment of status “to demonstrate that they have not received, are not currently receiving, nor are likely to receive, public benefits.” The new proposal seeks to more clearly define the term ‘public charge’ for the purpose of determining admissibility.

Major Changes

The proposed rule would change current standards for determining admissibility due to the risk of becoming a future public charge. Additionally, DHS would define the types of public benefits that make a foreign national subject to public charge inadmissibility while including a designated threshold of benefits allowed for all nonimmigrants receiving such benefits. DHS also seeks to make it more difficult for current foreign national public charges to gain approval for a change of status or extension of stay application. The rule would apply to all individuals seeking to adjust their status to that of a lawful permanent resident. However, USCIS notes that “lawful permanent residents who subsequently apply for naturalization would not be subject to inadmissibility determinations, including a public charge inadmissibility determination.”  

Those seeking entrance as refugees, asylees, Afghans and Iraqis with special immigrant visas, nonimmigrant trafficking and crime victims, individuals applying under the Violence Against Women Act, and special immigrant juveniles would be excluded from inadmissibility based on likelihood of public charge. Those applicants with “financial assets, resources, and support of at least 250 percent of the Federal Poverty Guidelines” or those applicants with an income larger than 250 percent of the Federal Poverty Guidelines, are more likely to be excluded from inadmissibility on the ground of public charge status.

Digital Border Search Under Federal Scrutiny: CBP

Last month, a federal suit brought forth new questions surrounding individual property rights at the U.S. border. Two months ago, an American woman filed a federal suit against the Department of Homeland Security after Customs and Border Patrol (CBP) agents seized her smartphone upon return to the United States and made copies of the data found on the device. Rejhane Lazoja, a Muslim-American woman, asked a federal judge to compel border officials to erase all data copied from her iPhone following the February seizure. On October 30th, Lazoja was granted her request when DHS settled the case by deleting all of Lazoja’s data collected by CBP. However, the lawsuit sheds new light on the continued uncertainty surrounding digital property rights at the border.

Border Doctrine

Unlike inside the U.S., CBP officers may search and seize property from individuals entering the country without a warrant. This “border doctrine” allows CBP officers to take property, including cellular devices, without approval from a judge. At the border, CBP agents may seize cellphones for an extended period of time, during which data is collected from the electronic device. In the case of Lazoja v. Nielson, the plaintiffs stated that the “seizure, retention, and any sharing of [Rejhane Lazoja’s] property without reasonable suspicion, probable cause, or a warrant have violated Ms. Lazoja’s rights under the Fourth Amendment of the U.S. Constitution.”

Although Lazoja received her cellphone 130 days after re-entering the U.S., DHS retained data collected from her device, including confidential correspondence with Lazoja’s attorneys. By retaining the American woman’s property for a period longer than 120 days, without a warrant or reasonable suspicion, the representatives for Ms. Lazoja argued that her Constitutional rights had been violated. Although the case was settled before adjudication, the problem surrounding data seizure, and retention, at the border remains. CBP maintains full discretion to seize and copy data from electronic devices belonging to individuals crossing the border, regardless of their citizenship status. As CBP agents become more strict under the direction of President Trump, there may be a rise in property and data seizures in the coming months.

USCIS Policy Changes: Medical Examination Record Validity

USCIS has announced new changes for the validity period for the Form I-693, Report of Medical Examination and Vaccination Record. The new regulation will require applicants to present a Form I-693 that was signed by an approved civil surgeon no more than 60 days before the submission of their immigration benefits application. According to USCIS, the change in the validity period for Form I-693 will help to reduce delays caused by requests for updated medical examinations.

Form I-693

The Form I-693, Report of Medical Examination and Vaccination determines admissibility of an individual based public health related grounds for inadmissibility. Specifically, section 212(a)(1) of the Immigration and Nationality Act lists specific health related issues that make applicants inadmissible (e.g. threatening mental disorder, communicable diseases). In addition, the Form I-693 ensures that individuals seeking immigration benefits have necessary vaccinations (e.g. mumps, measles, rubella, polio, tetanus and diphtheria toxoids, pertussis, influenza type B and hepatitis B). If a civil surgeon finds that the applicant meets all health requirements, he or she will complete sections of the Form I-693 and issue their signed approval. From the date of signature, the form is valid for up to two years.

Policy Change

Although the Form I-693 will remain valid for a period of two years, applicants must now submit their immigration benefit application with a signed medical examination form no later than 60 days from the date of the civil surgeon’s signature. The narrowed period of submission will increase “operational efficiencies” in USCIS while reducing the volume of requests for updated Form I-693s. As processing times for certain immigration benefits continue to extend into periods greater than a year, requiring a newer examination record will reduce the likelihood of the medical examination form expiring during processing. However, the new change will put a greater burden on applicants to schedule medical examinations within a two-month window of the application filing date. Additionally, USCIS will maintain the discretion to request a new Form I-693 if there is suspicion that the applicant is inadmissible based on public health risk.