Although this may seem quite simple, many with Form I-797A Approval Notices have experienced confusion regarding the expiration of their period of approved stay; and rightfully so. Recently, the United States Customs and Immigration Service (USCIS) began issuing approval notices with two different validity periods. Thus, the question remains: when does your period of stay really expire?
Period of Work Authorization vs. Period of Stay
E-1, E-2, E-3, H-1B, L-1 and TN nonimmigrants and their dependent family members may enter and stay in the United States for the period of time allowed by their specific work authorization. To give foreign workers and their families additional grace period between their arrival and departure from the United States, USCIS now includes, in some cases, an up to 10-day extension of authorized stay before and after the period of work authorization. The extension does not allow individuals to work during the up to 10 day extension period; employment during that time would result in a violation of their visa. With this extra time, workers will have the opportunity to settle their affairs before they begin work and prior to leaving the United States. However, the addition of a separate expiration date on the Form I-797A approval notice has resulted in much confusion in reporting for other important work authorization documents.
I-9 & I-94
To complete a work authorization document, or I-9, on or before their first day of employment, foreign nationals must provide information about their period of stay and period of work authorization. With the new extended period of authorized stay, many employees may be tempted to list the date of anticipated departure on their work authorization document. Employees must list their petition expiration date, found on the top of the Form I-797 in Section 1 of their I-9. Employers, however, will list the expiration of the Form I-94, or the end of the employees period of stay, on Section 2 of the I-9. Employers should ensure that their employee does not work past the expiration date of their work authorization.
Leaving the United States, even for a brief period of time, can be extremely complicated for foreign nationals. This risk increases if an individual wishes to leave the United States while an adjustment of status (AOS) application remains pending, because that individual runs the risk of abandoning their pending AOS application. To prevent this from occurring, advance parole serves as a valid immigration document for re-entry into the United States following international travel. Only a handful of visa holders may leave the U.S. with a pending AOS application without having first acquired advance parole (i.e. individuals and dependents in valid H-1B, L, and K3/4 status). For everyone else, applying for advance parole requires several months of processing times and valid documentation. However, if you are a citizen of Canada, you may lack the proper documentation to receive approval for both advance parole and an AOS.
When foreign national arrives into the United States, Customs and Border Patrol (CBP) provides them with a copy of their arrival/departure record or Form I-94. As one of the few exceptions, Canadian citizens do not receive an I-94 upon arrival into the United States. Thus, Canadian citizens are at a disadvantage because adjustment of status requires a record of arrival/departure i.e. Form I-94. To complete the application, Canadian citizens may request an arrival/departure record through the Deferred Inspection Site. Additionally, if you do not have any evidence of your legal entry, Canadian citizens may request their arrival document through a Freedom of Information (FOIA) request.
Although citizens of Canada may enter the United States without a visa, they must obtain advance parole before leaving the United States if their application for permanent residence is pending at the time of the departure. Unless the citizen of Canada holds one of the special classes of visa excluded from the advance parole requirement, the individual will abandon their pending AOS application upon departure. If you are unsure whether you require advanced parole before you upcoming trip, please feel free to contact our office for a consultation.
Recently, the United States Customs and Immigration Service (USCIS) released a policy memo endowing every adjudicating officer, and all USCIS employees, the power to issue a notice to appear, or NTA. With this policy change, USCIS employees may now initiate the removal and deportation of an individual that does not maintain lawful presence.
Although USCIS has always maintained the power to issue an NTA, previous procedures required USCIS employees to make written recommendations for removal notices to the United States Immigration and Customs Enforcement (ICE) for certain instances of unlawful presence. However, following the Executive Order Enhancing Public Security in the United States in 2017, the Department of Homeland Security (DHS) altered many immigration related priorities. In adherence to the new DHS standards, the policy memo now allows a more streamlined and swift deportation process. For both foreign nationals and employers, this policy memo can spell big trouble during renewal processing.
In addition to retaining it’s previous NTA procedures, USCIS will now issue NTAs for any of the application situations listed below, without the need to process the request through ICE.
Instances of reasonably suspected fraud or misrepresentation, including if an applicant misused any program related to the receipt of public benefits. (Regardless if the case is denied for reasons other than fraud, USCIS will initiate a removal request);
Instances of a criminally convicted or charged applicants, regardless if inadmissibility was determined by criminal record. (USCIS may also refer cases involving serious criminal activity to ICE before USCIS issues a denial of immigration benefits or NTA);
Instances in which USCIS denies an application for naturalization, on good moral character grounds because of a criminal offense; and
Instances of an unfavorable decision on an application, petition, or benefit request, in which the foreign national is not lawfully present in the United States.
Appeals & Consequences
Many foreign nationals at the mercy of the extreme backlogs encumbering USCIS face unlawful presence while waiting for an application decision. Under this new policy memo, these individuals are now at greater risk of deportation. Although aliens may appeal an NTA, the risk involved leaves many employers wary of hiring new foreign national employees or approving renewal requests. If you have any concerns about your lawful presence and or whether the policy memo effects you, please do not hesitate to call our office to schedule a consultation.
On May 30th, USCIS announced the launch of an online processing system, the Freedom of Information Act (FOIA) Immigration Records SysTem (FIRST). The online platform will allow users to submit, manage, accept FOIA requests online. Previously, FOIA requests only were processed through mail, fax, and email; documents were then transferred via mailed compact disc. USCIS will phase in the new processing system in the next coming months.
The FOIA allowed for greater government transparency and provided individuals with greater autonomy with their personal records. FOIA requests can be especially helpful for individuals who need a copy of their personal records, that may have been lost or damaged over the years. A FOIA request can also provide essential evidence for status renewal or adjustment of status. Files received from FOIA requests may also contain notes from adjudicating USCIS officers, which can be helpful for pending cases. Those with a coming appearance before an immigration judge will receive expedited documents if the requester presents evidence of the notice of appearance.
Benefits to Users
Through this new system, those who need to request a file permitted by the FOIA may create an account within myUSCIS to receive their file digitally. Through myUSCIS, users will receive notices regarding the status of their request. This online system will lower the associated costs of receiving and responding to FOIA requests through mail. This service is currently activated for those with myUSCIS accounts
The next phase of implementation, expected to roll out in the coming month, will feature an independent online service. Through this digital delivery option, the system will be open to all FOIA and Privacy Act requests. Once USCIS build out the digital platform, all stages of the FOIA request process will be available online (from initial request to document delivery). The announcement follows a series of initiatives from USCIS to increase paperless processing.
An arrest or conviction for driving under the influence (DUI) or driving while intoxicated (DWI) may mean big problem for those in the United States under a nonimmigrant visa. Once a U.S. consulate receives notice of the conviction of an alien for a DUI or DWI offense, consular officers will revoke the visa foil or “stamp.” Under most circumstances, an alien convicted of a crime with a maximum penalty of one year will undergo revocation processes. However, with DUIs and DWIs in particular, U.S. consulates may revoke a visa if “an ineligibility or lack of entitlement is suspected, or for virtually any other reason.” Meaning, those arrested, although not convictedfor DUI or DWI, may receive a notice of cancelled visa foil while consular officers determine whether a nonimmigrant is still eligible for their visa.
When a person enters the United States, they typically enter lawfully through a nonimmigrant visa stamp issued at a consulate abroad. If that individual is arrested or convicted for a DUI or DWI, the visa stamp is revoked by a U.S. consulate officer under prudential revocation. Thus, the visa foil will no longer be valid, and that individual would not be able to re-enter the U.S. the next time they travel abroad. The consulate should contact the individual once the visa foil has been revoked through email or phone. However, if the U.S. consulate is unable to contact the foreign national, the visa foil may be invalid without the individual’s knowledge making the visa ineligible for future re-entry.
A DUI or DWI will not change the legal status of the foreign national who has been arrested or convicted of a DUI or DWI, as long as they continue to maintain their status in the U.S. Primarily, revocation of a visa stamp impacts a foreign national’s ability to travel outside of the United States and return back using the existing visa. Therefore, those with prudentially revoked visas following a DUI or DWI must be sure to maintain their non-immigrant status. To travel with a prudentially revoked visa, a foreign national must obtain a new visa to return to the U.S. after a trip abroad.
Early this month, a Memorandum of Understanding between the United States Customs and Immigration Service (USCIS) and the Department of Justice (DOJ) was released to the public. The memo announces new measures between the two agencies to increase information exchange to achieve the mutual goal of protecting U.S. workers. Together, the agencies aim to adhere to President Trump’s drive for the prioritization of U.S. workers over any class of foreign labor.
Under the Department of Justice, the Immigrant and Employees Rights section of the Civil Rights Division, among other things, works to protect workers through prosecuting employers who violate civil rights statutes or executive orders that prohibit discrimination based on nationality or citizenship status. Under the authority of USCIS, the Fraud Detection and National Security Directorate, among other things, investigates employers for potential “civil and criminal violations of immigration laws.” Together, these agencies accumulate a breadth of information focused on the prevention and cessation of employer discrimination based on nationality and immigration status.
To comply with outlook of President Trump’s Buy American Hire American executive order, both the Fraud Detection and National Directorate (under USCIS) and the Immigrant and Employees Rights section (under the DOJ) will now actively share data as it pertains to ending the “potential misuse of the employment-based immigrant and/or nonimmigrant visa programs.” The two agencies hope to protect qualified U.S. workers who are sometime vulnerable to discrimination by employers who prioritize foreign born workers. This collaboration expands upon a previous agreement between USCIS and the DOJ, which sought to share information regarding the E-Verify process. The memo marks a new wave of data sharing that will enable the two entities to collaborate. The Director of USCIS, L. Francis Cissna stated, “This agreement enhances the level of coordination among investigators who often work on the same issues at different agencies.”
Although there are some cases of discrimination against U.S. workers, employers often seek foreign national workers to fulfill droughts in the qualified labor force. Through data sharing, there may be a greater level of scrutiny, both from USCIS and the DOJ, towards employers who depend on foreign labor.
USCIS recently announced new measures to protect American jobs and comply with initiatives coming from the Trump Administration. The announcement serves as the first step for a new direction focused on greater oversight of both H-1B employees and employers. Specifically, for employers, worksite visits will now become more strenuous for those companies identified by USICIS as being at risk of fraud or abuse.
Over a year ago, President Trump’s executive order, Buy American Hire American: Put Americans First, sparked a series of policy announcements from USCIS, DHS, and other government organizations. Since the beginning of the new wave of immigration policy from the Trump White House in 2017, worksite compliance visits have increased in frequency. In the announcement, USCIS revealed a new targeted approach for site visits, focusing on instances in which:
USCIS cannot validate the employer’s basic business information through commercially available data;
H-1B-dependent employers (those who have a high ratio of H-1B workers as compared to U.S. workers, as defined by statute);
Therefore, companies that fall within these categories should expect greater scrutiny from USCIS officers. Through the direction of Trump administration officials, USCIS plans to insure companies continue to prioritize employing American workers before outsourcing labor to foreign nationals. However, U.S. companies struggle to find American employees with enough human capital to be competitive and must attract highly skilled workers from abroad. Although foreign national highly skilled workers are an essential element to the intellectual labor force in the United States and contribute billions of dollars to the U.S. economy, many Americans continue to believe that H-1B workers decrease opportunity for American workers. Thus, the new initiative from USCIS continues to disadvantage foreign workers in the name of “protecting American workers.”
Early this month, USCIS launched a new website E-Verify.gov. The website provides employers, employees, and the public an online platform for electronic employment eligibility verification. The new website will help employers and employees to access E-Verify information through a more user-friendly site.
For years, E-Verify provided employers with the ability to confirm the eligibility of a new workforce to legally work in the United States. E-Verify.gov will now provide all the resources of E-Verify through a streamlined system. Employers can use E-Verify.gov to:
Confirm the identity of new employees through matching Employment Eligibility Verification with Social Security Administration (SSA) and Department of Homeland Security (DHS) records;
Receive up to date information regarding the eligibility status of an employee (nearly all employees are confirmed to work within 24 hours);
Enroll directly in E-Verify, or access current E-Verify accounts.
For individuals, E-Verify.gov allows anyone over the age of 16 in the United States to self-check their work eligibility status. With a myE-Verify account, Self-Check allows individuals to check to see if their employment records are correct and provides instructions to correct records with the appropriate agency.
The system currently has 800,000 enrolled employers, with data from thousands of more employees from Form I-9 records. The new website, E-Verify.gov, will make accessing this information easier for both employers and employees.
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.
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.
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 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.