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.

Administrative Processing for Visa Applications

Visa applications are sometimes held for so called “administrative processing.” If your application is delayed for administrative processing, it could mean additional wait time for your case decision.

What is Administrative Processing?

According to the Foreign Affairs Manual (FAM), Administrative Processing refers to “clearance procedure of the submission of a case to the Department”, or the Department of State (DOS). The FAM also advises consular officers to withhold information regarding the nature of the administrative processing order. If a case is held for administrative processing, you case could be suspended for up to 60 days.

Why is my case held for Administrative Processing?

As mentioned above, consular officers will not provide reasoning for an administrative processing order. However, former members of the Senior Foreign Service, Stephen R. Pattison and Andrew T. Simkin, offer a few reasons why a case could be held for Administrative Processing:

  • Circumstances that require further internal consultation within the mission or with the Department of State (DOS) arose during the visa interview, therefore it was impossible to decide the case at the end of the interview
  • The biographic or biometric testing for the case present a match for a wanted party and the consular officers must confirm the applicant is not the wanted party
  • The applicant’s intended commercial or academic activity triggers concerns about the possible illegal transfer of technology as defined in the Technology Alert List

The former explanation for administrative processing comes about if the applicant intends to engage in activities included in an area covered by the Technology Alert List (TAL).

What happens Next?

It can take 60 days or longer to resolve an administrative processing hold. An applicant can receive an administrative processing hold more than once, especially for issues of security. Issues regarding an application are usually resolved within the 60-day time frame, however inquiries about an application are limited until the end of the 60-day period. 

Administrative processing does not mean that the visa application has been denied. In fact, after administrative processing, most applications receive approval. If you need assistance making inquiries on behalf of you application, please feel free to contact our office

No Deference by USCIS to Prior Employment-Based Petition Approvals

On October 23rd, USCIS released a memorandum overturning previous policy on deference of eligibility in the adjudication of petitions for extension of nonimmigrant status. This new memo will affect most non-immigrant workers, as extensions of visas are quite common. The memo comes in response to the Executive order, “Buy American Hire American,” which has impacted other immigration policies. The goal of the policy memorandum is to “protect the interests of U.S. workers.”

Previous Policy

On April 23, 2004 USCIS released a memorandum that directed adjudicators of nonimmigrant extension petitions to defer to prior decisions of eligibility given in the original petition. For extensions, UCIS adjudicators had the burden of reviewing previous evidence of eligibility. The adjudicator had to only determine that the current facts of the case remained the same. The memo prohibited deference for “limited circumstances.” Additionally in August of 2015, USCIS released a second direction to adjudicators, allowing deference of original eligibility in L-1B cases.

New Policy

The memo returns assessment of extensions of non-immigration status to adjudication procedures prior to April 23, 2004. Therefore, adjudicators will no longer defer to previous eligibility assessments while reviewing extension petitions. Each extension is a new petition under the new procedure, and adjudicators will not rely on previous approvals. The burden of proof will be placed upon the petitioner to provide adequate evidence for eligibility. The adjudicators are not limited by previous eligibility decisions, and therefore may request additional documentation for the purpose of determining eligibility. USCIS states that the process will aid in “discovering material errors in prior adjudications.” USCIS complained that the deference procedure limited adjudicators from discovering errors in evidence or filing mistakes made in previous petitions.

Impact

Since the processing time of a nonimmigrant worker extension has increased, employers should expect greater delays. The new memo reduces efficiency, and will place a greater burden on employers of non-immigrant workers. If you have any questions about your petition of extensions for nonimmigrant work status, please feel free to contact our office. 

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. 

Changes to Foreign Affairs Manual (90 day rule): New Guidelines for Inadmissibility for Misrepresentation

On the first of September, the Department of State (DOS) released new guidelines, published in the Foreign Affairs Manual (FAM), for the term “misrepresentation” for the purposes of deciding grounds for inadmissibility. Misrepresentation of intent to enter the US or receive a visa presents grounds for inadmissibility under INA. The new announcement eliminates the DOS 30/60 rule, which outlined whether a consular officer could presume that an applicant lied about their intentions based on actions that occurred after the applicant entered the US. Now, “conduct inconsistent with status” that occurs within 90 days of entry into the US, will be presumed as a purposeful misrepresentation of intent, creating grounds for inadmissibility.

Old 30/60 Rule

Previously within a period of 30 days, immigration officers assumed that any distortion of truth on applications for visas or entry into the US regarding the foreign national’s basis for admission was a purposeful misrepresentation of intent for visa. For example, if a non-immigrant entered the US on a visitor visa (like a B-1/B-2 visa ) and enrolled into an educational institution within 30 days of arrival or got married and filed an application for adjustment of status, the government previously assumed that the foreign national misrepresented their motive for entry. Under the old guidelines, inconsistent conduct that occurred between 30-60 days was not misrepresentative of the foreign national’s intent at application, but the conduct was eligible for investigation by an immigration officer.

New 90-Day Rule

The new FAM guideline extends the period of assumed misrepresentative intent to 90 days. Consequently, those who are in the US under the US Waiver Program, which allows admittance for a period of 90 days, are assumed to have willfully misrepresented intent if the file and application for change or adjustment of status. Those entering in a B-1/B-2 status or any other non-immigrant visa will also face a similar scrutiny. Under the new provision, consular officers are to presume misrepresentative intent for the entirety of the 90-days. If conduct occurs more than 90-days after entry or approval for US visa, the applicant is not presumed to have willfully misrepresented intent on their application. 

Impact

The new FAM timeline presents an issue for many non-immigrants who have a pending application for adjustment or change of status. The new 90-day rule will not affect applicants on a dual intent visa like H-1B. However, if a foreign national changes status within 90 days of arrival, they may be at a risk of inadmissibility. It is noteworthy to remember that accusations of misrepresentation on an application for a visa or entry in the US is refutable. It is important to receive consultation before changing or adjusting status during the period of 90 days since under the new policy the consular offer may presume misrepresentation at any time, even after 90 days of entry, if the facts of the case support such a determination. This new policy, being broader than the previous one, would result in increased misrepresentation findings which under INA may make an individual permanently inadmissible to the US.

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.