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.
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.
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.
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.
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.
The United States Customs and Border Patrol (CBP) updated guidance for I-94 and I-94W Arrival and Departure forms. Beginning May 2019, I-94 records will be alphanumeric, a change from the strictly numeric 11 digit system.
Depletion of Numeric-Only I-94s Codes
The record numbers for form I-94s are essential in any immigration application. While I-94 remain largely electronic, these forms are evidence of legal entry or exit into/from the United States. Those with past I-94s can access there I-94 information via the CBP website. The new system of record keeping will now involve both numbers and letters, and will remain an 11 digit code with 9 numeric digits, a letter in the 10thposition, and a digit in the 11thposition. This change will allow the CBP issue I-94 numbers for a much longer period without changing to a new coding system. Those who have a currently active form I-94 with solely numeric characters will maintain a valid I-94 until the “Admit Until Date” printed on paper copies of I-94s or as found on the I-94 website. Starting May 2019, all new I-94 form numbers will have this alphanumeric coding system.
The CBP website allows foreign nationals the ability to track their current arrival status and check records of all previous arrivals and departures. To complete a new visa application, foreign nationals are required to have records of their entry, therefore the I-94 website can prove to be quite helpful. While most entry and departure records are maintained online via CBP, applicants remain responsible for finding their own records. The I-94 website provides the arrival or departure date and port of entry or exit for the passport entered through the online access forum. The records expand for only the last 5 years, and include documentation for passports that have since expired. The website does not, however, provide information for all land border arrivals/departures, closed loop cruises, or any other visa status. The website notes that the platform is only for information purposes and does not reflect a legal record of entry and exit. Eligible visa holders may use the website as a hub to check their compliance with the time terms of their visa.
United States Citizenship and Immigration Service (USCIS) announced new changes to the Form I-539, Application to Extend/ Change Nonimmigrant Status. On the cusp of the H-1B filing season, this new change will swiftly alter form requirements for several visa petitions, including the dependents of H-1B visa holders.
Change to Form
On March 11, 2019 and beyond, all filed Form I-539 documents must reflect changes made in February, less than 30 days from the roll out. Those who submit older versions of the Form I-539, without a revision notation of 2/04/19, will receive a rejection. The new form includes requirements that every applicant and co-applicant pay a $85 biometrics fee. This requirement extends to all children, regardless of age (e.g. H-4 dependents, L-2 dependents, F-2 dependents). The change comes without a grace period nor a 90-day period for public comment.
Those dependents must sign and submit a separate Form I-539A, available on the USCIS website on March 11. The Supplement A form will no longer be available, and each individual dependent or co-dependent will submit a separate form. Parents or guardians may sign forms for those under the age of 14 or for any co-applicant who is not mentally competent to sign. All applicants and co-applicants must pay the $85 biometrics fee unless included in the exemptions to be listed on the USCIS website come March 11th. USCIS notes that “Every applicant and co-applicant will receive a biometric services appointment notice, regardless of age, containing their individual receipt number.” These non-immigrant applications will now require these applicants and co-applicants to complete biometric screenings.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.