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.

OIG Criticizes the USCIS Electronic Immigration System (ELIS)

In a report published last week by the Department of Homeland Security’s Office of Inspector General (OIG), the Inspector General provided recommendations to improve the “unsuccessful” automation of naturalization benefits delivery through Electronic Immigration System. Earlier this year, the Department of Homeland Security urged USCIS to suspend all online applications for naturalization through ELIS due to major breaches in national security.

What is ELIS?

The USCIS Electronic Immigration System is an online, account based system that centralize, and serves to automate, some immigration benefits processes. The system allows applicants to access notifications of decision and receive “real-time” case status updates. Although the online program was intended to modernized the immigration application process, widespread issues and challenges with the online system prompted Homeland Security’s OIG to investigate the effectiveness of automated naturalization applications through ELIS.

Report Findings

The report discovered many issues with the ELIS system for online applications for naturalization (N-400). The program, re-launched in April of 2016, aimed at assisting the processing of the tens of thousands of naturalization requests received by USCIS each month. As with previous ELIS naturalization releases, the application had “significant unresolved functional and technical issues surrounding ELIS.” The delays associated with the ELIS technical issues created a significant backlog (approximately a 60% increase) for USCIS naturalization applications. Even more damaging, the report found that the ELIS errors approved citizenship for at least 200 individuals who had not completed required background checks. The report outlines several ELIS user complaints, from issues with printing certificates of naturalization to issues with editing country of origin on naturalization forms.

The Department of Homeland security made several recommendations to improve both the security and functionality of the ELIS system for naturalization. However, this report follows numerous criticisms of the USCIS Electronic Immigration System. It is unclear how USCIS will move forward to provide modern alternatives to benefit applications while ensuring privacy and safety.

DOS Allows DNA test as Evidence of Sibling Relationship

The Department of State (DOS) will now allow the use of DNA testing as evidence of a bona fide relationship between biological siblings. This change comes in response to an appeal decision, Matter of Ruzuku, that mandated the Department of Homeland Security to accept sibling to sibling DNA evidence to prove family ties.

In Matter of Ruzuku, USCIS was not convinced about the sibling relationship which was accompanied with an undated family photograph, affidavit from two persons asserting they are relatives who have knowledge of sibling relationship, and birth certificates issued more than 25 years after birth. In response, the petitioner arranged for sibling-to-sibling DNA testing with an accredited facility. The DNA report concluded that the petitioner and the beneficiary were very likely (99.8114%) siblings.  The USCIS Director declined to give persuasive weight to any of the evidence by itself and did not indicate if she assessed all evidence in totality. The petitioner appealed and the Board of Immigration Appeals held though sibling-to-sibling DNA test results alone would not be sufficient to establish a relationship, it combined with other evidence should be considered in totality.

Consular officers overseas will now be able to accept DNA tests as “probative evidence” for determining the existence of a sibling relationship. Proving a bona fide sibling relationship is necessary in order for a foreign national sibling to be sponsored by their US citizen sibling. Previously, DOS only permitted DNA testing to prove a bona fide relationship between parent and child. Given the cost, consular officers only use DNA evidence if there is a noticeable absence of true relationship between family members. If there is a case with sufficient evidence of a bona fide relationship between the US citizen and foreign national sibling, a DNA test will not be necessary.

99.5 Percent Certainty

 If a consular officer accepts DNA as evidence of a bona fide relationship between siblings, to be consider “probative evidence” the test results must provide “99.5 percent or greater degree of certainty” of a biological relationship. Half siblings are considered with the same 99.5 percent degree of certainty qualification, but with consideration for the single parent genetic relationship. If the DNA test produces a result lower than 99.5 certainty, the DOS will not automatically deny the case. The Department of State orders consular officers to consider the whole of the evidence provided to prove the bona fide relationship between siblings due to the possibility of scientific error within the tests.

Sponsoring a loved one can be an extremely tiresome process, but the new regulation may ease applicant’s burden of proof for establishing a bona fide family relationship.

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.

Newsflash: Diversity Lottery

On November 1st, President Trump tweeted a statement threatening the Diversity Visa (Lottery). The tweet came in response to a lottery winner that carried out an act of terror in New York City. Many people feared that the program would be end immediately. Contrary to widespread belief, Congress would have to pass an immigration reform bill to enact substantial changes, including any change to the Diversity Visa program.

What is the Program?

Passed with primarily democratic support in the 1990s, the Congress intended the program to foster diversity from countries with low rates of immigration into the US. The lottery randomly selects 50,000 applicants for the opportunity to receive green cards. Applicants apply online, and usually reside outside the US at the time of application and selection. The Lottery is amongst the quickest routes to obtain a green card in the US, with most applications approved in less than two years. Some years, the lottery program receives nearly 15 million applications. High volume immigration countries, like Mexico, India, and China, are not included in the lottery. Currently, the biggest beneficiaries of the lottery are from Africa & Europe.

Implications

 There is no official order to end the lottery program. For current news, it is important to stay updated on USCIS news alerts for official immigration rulings, including any future executive orders. While there may be growing uncertainty about certain immigration programs and applications, under the current administration, it is noteworthy to remember that Congress passes bills which upon President’s approval and signature becomes the law.  Passage of laws, especially for controversial and politically sensitive topic like immigration, is very difficult

Changes to Haitian TPS

On November 20th, the acting Secretary of Homeland Security, Elaine Duke announced the end of Temporary Protected Status (TPS) designation for Haiti. The order will take effect in in approximately 18 months (July 22, 2019), to allow current TPS holders time to arrangements to depart the US. The termination of TPS for Haiti comes in response to Secretary Kelly’s announcement that the country of Haiti had made significant improvements since the 2010 earthquake. Although there is disagreement within the international community about the stability of Haiti, Haitian nationals in the US with TPS are required to return to their home country before the 2019 termination date.

What is TPS?

For countries under duress, either from sustained armed conflict or devastating natural disasters, the Secretary of Homeland security may allow temporary protective status (TPS). Individuals who are eligible for TPS will not be removed from the United States for issues of immigration status. Additionally, TPS holding individuals can apply for an employment authorization document (EAD), which allows citizens of the TPS country to work legally in the US until the TPS designated time expires. TPS holders may also be able to receive travel authorization. Individuals must re-register for TPS benefits during periods of re-registration to maintain TPS. However, TPS is a temporary benefit and does not guarantee lawful permanent residence or other immigration benefits.

Employers and TPS holders

 Many companies employ workers with TPS. For employers of workers with TPS, it is important to keep updated on the status of an employee’s TPS. If an employee’s TPS is set to end, the employee must be approved for a new employment visa by the termination date of their country’s TPS. Individuals under TPS may apply for nonimmigrant status or petition for an AOS.  For some countries under TPS, (like Somalia), the USCIS will automatically extend the validity of employment authorization documents for qualified workers.

OPT Extension for STEM F-1 Students: Update

In March of 2016, the Department of Homeland Security ruled that F-1 students who receive STEM degrees (Science, Technology, Engineering, and Mathematics) and who meet all specified requirements may apply for a 24 month extension of their post-completion Optional Practical Training (OPT). The STEM OPT program allows certain F-1 students the opportunity to receive temporary employment. The STEM OPT program has changed since our previous OPT coverage. 

Eligibility for STEM OPT Extension

To qualify for the extension, F-1 students must have been granted OPT or currently are in a “valid period of OPT.” Applicants of extensions must also possess a bachelor’s, master’s, or doctoral degree from a US Department of Education approved higher education institution. Additionally, graduated students must work for a company that meets all requirements (see below). Ninety days before the OPT expires, an applicant must submit an employment authorization form (Form I-765). The required files for the STEM OPT Extension include:

  • Form I- 765 with application fee;
  • Form I-20 (Certificate of Eligibility for Nonimmigrant Student Status) endorsed by designated school official (DSO);
  • A copy of STEM degree.

Employer Responsibilities

According to USCIS, to employ a nonimmigrant through the STEM OPT during their extension, an employer must:

  • Enroll in E-Verify and possesses good standing;
  • Report substantial changes to the STEM OPT student’s employment to the Designated School Official (DSO) within 5 business days;
  • Perform formal training for the student’s academic learning experience;
  • Provide OPT employment that parallels similarly situated US workers (duties, hours, compensation);
  • Complete and submit the Training Plan for STEM OPT students (Form I-983).

USCIS also alerts employers that US Immigration and Customs Enforcement may perform site visits to verify the STEM OPT student is receiving a structured, work based educational experience.

If you need any assistance requesting a STEM OPT extension, feel free to contact our office.

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

Filing Immigrant Petition outside the U.S.

For US Citizens and lawful permanent residents, it can be difficult to help foreign national family members immigrate to the US. For family members residing in a country without a local USCIS office, I-130 petitions are often sent to the USCIS Chicago Lockbox facility for processing. Already a lengthy process, petitions sent to the Chicago Lockbox facility can take much longer to process. This can be devastating for US citizens and lawful permanent residents who are in desperate situations with their family members abroad. According to a 2012 USCIS memorandum, certain I-130 petitions with “exceptional circumstances”  from countries without a local USCIS office may file petitions through Department of State (DOS) run Embassies or Consulates.

What Are “Exceptional Circumstances”?

If a petitioner from a foreign country with a local USCIS office wishes to file an I-130 petition through DOS, the USCIS Field Officer Director with jurisdiction over their country of residence must approve that the case presents “exceptional circumstances.” The following list of “exceptional circumstances” present only a few potential situations that would allow the DOS to adjudicate the I-130 petition. However, it is up to the discretion of the Field Officer Director to determine whether or not the DOS can process the petition.

  • Military Emergency: If an active US service member suddenly has a change of assignment abroad or new deployment
  • Medical Emergency: If a petitioner or beneficiary experiences an unexpected medical emergency that require immediate travel.
  • Threats to Personal Safety: If a petitioner or beneficiary is under threat of violence.
  • Aging Out: If the beneficiary is close to exceeding the age of eligibility
  • Petitioner Recently Naturalized: If “a petitioner and family member(s) have traveled for the immigrant visa interview, but the petitioner has naturalized and the family member(s) requires a new, stand-alone petition.”
  • Adoption of a Child: If a petitioner has adopted a child locally and is in dire need to depart the country. (Considered valid if petitioner has full custody of child for longer than two years)
  • Short Notice of Position Location: If a US citizen petitioner, living and working abroad, transfers to a job in the US or receives a job offer in the US.

Although a petition with “exceptional circumstances” may be filed through a consulate or embassy in a country without a local USCIS office, the DOS must receive authorization from a USCIS Field Officer Director to adjudicate the petition. Denied authorization will require families to file the I-130 petition through the Chicago Lockbox facility. If you have any questions about submitting a I-130 petition, or if you believe your family’s case applies for “exceptional circumstances” 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.