Early last month, USCIS updated guidelines for nonimmigrants wishing to change status to F-1/M-1. For nonimmigrants in valid, non-student status, the lengthy approval process for both F-1 and M-1 presents a number of issues. One such issue occurs when a nonimmigrant undergoing the change of status process to F-1/M-1 experiences a lapse of their current non-student status. Previously, this issue primarily impacted those in B-1 or B-2 status, who had to adhere to strict guidelines to maintain status. However as of February 6th, changing to student status (F-1 or M-1) from any immigration status, just became a lot more difficult.
Change of Status
Typically, subject to certain exceptions, federal regulations prohibit studying in the U.S. under a non-student status. Therefore, to legally study in the U.S., nonimmigrants must obtain either F-1 or M-1 status. Those who are eligible to apply for a change of status to a F-1 or M-1 must have entered the U.S. legally, maintained valid immigrant status, and not have committed a crime or action to invalidate their current status. To apply for student status, individuals must be accepted into an approved institution, obtain a Form I-20 from the approved institution, pay necessary fees, and submit a Form I-539 application to change nonimmigrant status. However, completing these steps will not guarantee a valid student status. Until USCIS approves an application for student status, a foreign national may not enroll in a higher education institution regardless of their acceptance. Due to a series of backlogs, the approval process may take several months, jeopardizing those with who may experience a lapse in status during the change of status application process.
Gap in Status
To be eligible to study in the U.S., the revised USCIS policy requires that all nonimmigrants changing to a student status maintain their valid nonimmigrant status from the date the Form I-539 was filed until at least 30 days before the start date of their educational program. In the past, this policy only applied to B-1 or B-2 visa holders. This change in policy could have a significant effect on current foreign nationals with intent to study in the U.S. due to extremely long processing times for student visas. For example, an H-4 beneficiary currently attending the school in H-4 status but who will soon turn 21 and be eligible to stay in H-4 status wishes to continue attending school in F-1 status. He applied for a change of status to F-1, and his H-4 will remain valid within 30 days of the start of the program. However, because processing times for F-1 can be up to 10 months, the individual would have to file a separate Form I-539 to change into a different status like B-1/B-2 to “bridge the gap” of his status. This change in USCIS policy will create an even greater burden on nonimmigrants who may wish to further their education while in the U.S. and will increase the case load of USCIS officers who adjudicate these applications.
Planning a trip outside of the United States requires a great deal of preparation, and often times, a great deal of documentation. For lawful permanent residents (LPR), the documentation and identification requirements outlined by the U.S. Customs and Border Patrol (CBP) for re-entry into the U.S. may come as a surprise. The types of documentation required for re-entry into the U.S. depends upon the duration of travel, airline policies, and other CBP regulations.
To return to the United States after international travel, a LPR must present a valid green card (LPR card, Form I-551). A LPR does not require a passport to re-enter the United States, though LPRs may need a passport to enter another country outside of the U.S. The lawful permanent resident card does not need to be valid for a certain period of time, as long as the LPR card is valid upon arrival CBP officers will accept a green card as identification for entrance. However, if a LPR returns to the U.S. after an absence of more than one year, the LPR must present a reentry permit, in addition to their green card. Similarly, if a LPR remains outside the U.S. for a period longer than 2 years, they must present an approved returning resident visa upon arrival to the U.S.. The CBP website notes that any LPR outside the U.S. for more than 180 days will be subjected to new inspection procedures. Those with pending adjustment of status (AOS) applications should read here for travel recommendations.
Although CBP does not require a LPR to present a passport upon re-entry to the U.S., airlines have separate documentation requirements. Therefore, we suggest that you always bring your passport as an extra precaution.
The Department of Homeland Security (DHS) announced last week that it would withhold an announcement to end the H-4 EAD program until June of 2018. The update from DHS came in response to a court of appeals decision made February 21st. The H-4 EAD program will remain in effect until the planned changes are initiated after June of this year.
The H-4 EAD program allows dependents of H-1B highly skilled nonimmigrant workers the opportunity to apply for employment benefits. Primarily, the H-4 EAD program allows spouses to work in the U.S. while their husbands or wives seek employment-based lawful permanent resident (LPR) status. The program is beneficial because it allows families to maintain a steady income while in the United States. However, an interest group Save Jobs USA challenged the legality of the H-4 EAD program, enacted originally by the Obama Administration. The group claims that the H-4 EAD program depresses wages and takes jobs from the American workers. Although the claims lack vital evidence, the Trump Administration does not support the Obama era program. Therefore, if the Trump Administration orders DHS to make changes to end the H-4 EAD program, the lawsuit would no longer be necessary.
On February 21st, the U.S. Court of Appeals for the District of Columbia granted a motion from the Trump Administration to delay the case for 90 days on the condition that the Administration, and further the DHS, would release new regulations for the H-4 EAD. The court anticipated that the administration would immediately announce to end the H-4 EAD program. However, on March 1st DHS responded to the court announcing that a decision on the fate of the H-4 EAD would not be made until June.
Fate of H-4 EAD
Currently, Obama era regulations for H-4 EAD benefits remain in effect. Once DHS makes an announcement to terminate the program this summer, it may still be several months until the program ends. We will continue to monitor DHS to stay updated on the fate of the H-4 EAD program.
An Affidavit of Support can be extremely helpful in most cases, but not when it comes to B-1/B-2 Visitor Visas. If you wish to “sponsor” a friend or family for a B-1/B-2 visitor visa, filing a Form I-134 may cause more harm than good.
What is an Affidavit of Support?
A Form I-134 affidavit of support serves as a visa applicant’s evidence of sponsorship, or evidence that the applicant has financial support and will not become a public charge of the United States. The form documents the personal finances of a sponsor currently in the U.S. and provides that a nonimmigrant entering the U.S. will not become financially dependent on federal welfare programs. Given the nature of the B-1/ B-2 visitor visas, an affidavit of support is not considered by consular officers because the foreign national is not expected to be in the U.S. for an extended period.
Financial Consideration B-1/B-2 Visa
Some family members or friends mistakenly file an affidavit of support for a B-1/B-2 visa applicant due to the financial considerations within the application. The application for B-1/B-2 asks about the financial state of the person or entity financially responsible for the trip to the United States. The purpose of this inquiry is to determine whether the applicant has the financial means to afford the extensive costs of the trip. In addition, consular officers often examine the applicant’s financial information during the interview to determine whether the applicant is an “intending immigrant,” or that the applicant intends to stay in the U.S. permanently.
Affidavit of Support Could Harm B-1/B-2 Application
An application for a B-1/B-2 visa is adjudicated based on visa applicant’s qualification and eligibility. The consular officer makes a determination by focusing on, amongst other factors, applicant’s social and economic ties to his/her home abroad. Since finance is an important part of this process, we do not recommend that a family member or friend submit an affidavit of support for a B-1/B-2 visa applicant unless a U.S. consular specifically requests a Form I-134. If submitted without a request, consular officers may consider the affidavit of support as evidence of the applicant’s inability to pay for the proposed trip.
Typically, a lawful permanent resident card, or green card, expires ten years after the issue date. Adults must then file a I-90 application to replace green card once it is time to renew. However, if your child received their green card before their 14th birthday, USCIS requires additional documentation and processing the minor’s renewal BEFORE the child reaches the age of 16.
Why is the renewal process different for minors?
When a child under the age of 14 is processed for a green card, biometrics are not collected. Therefore, the Department of Homeland Security (DHS) does not have identifying information on the minor (e.g. fingerprint, photographs, or digital signature). To obtain this information, DHS requires that all lawful permanent residents submit required biometrics by the age of 16. To ensure that minors submit biometric information by that time, minors issued a green card before the age of 14 must submit a I-90 application and completed biometrics within 30 days of the child’s 14th birthday.
Do we have to pay for the I-90 filing fee?
It depends. If the child’s green card is not set to expire until their 16th birthday, the filing fee will be waived. To qualify for the waiver, the applicant must file Form I-90 within 30 days of their 14th birthday and check the appropriate option on the form. Regardless, applicants must pay for the biometric screening, which is currently $85. However, if the minor’s green card expires before their 16th birthday, or they are filing the I-90 before they have turned 14 or 30 days after they have turned 14, they must pay the I-90 filing fee of $455 (as of 2/24/18) in addition to the biometrics fee. If you have any questions or concerns about renewing you child’s green card, please feel free to schedule a consultation with our office.
InfoPass is a free online service that allows individuals to schedule an appointment with a USCIS immigration officer. The online platform offers 12 different languages to make scheduling an in-person appointment easier. InfoPass is accessible from both computers and mobile devices to make scheduling available anywhere. The appointments scheduled through InfoPass are intended for specific inquires, while routine matters are typically handled through the phone or online. Nevertheless, recent reports warn that the InfoPass online scheduler could soon be obsolete. Under the new program, the USCIS National Customer Service Center would first handle all requests for an in-person appointment.
Regional USICIS offices in Hartford, CT; El Paso, TX; Jacksonville, FL; Sacramento, CA; and San Francisco, CA may be the first centers included in the new pilot program for scheduling InfoPass appointments. Under the program, scheduling InfoPass appointments at the above mentioned USCIS field offices will now be facilitated through the USCIS National Customer Service Center. If implemented across the nation, the program would eliminate the self-scheduling InfoPass appointment feature online. The new change comes in conjunction with new efforts to increase efficiency by decreasing self-scheduled InfoPass appointments for inquiries better addressed by the USCIS National Customer Service Center or through the USCIS website.
To make an InfoPass appointment at one of the selected pilot USCIS field offices, one must now first call the Service Center (1-800-375-5283), speak to a Tier 1 officer, and request to schedule an InfoPass appointment. The call will then be escalated to Tier 2 officer who will review the case and will confirm if the issue is appropriate for an InfoPass appointment before scheduling the appointment. The reports of the new pilot program are not yet confirmed online by USCIS; however, we will continue to monitor the situation.
Recently, unpredictable changes to Immigration Law has made travel outside of the US extremely risky for foreign nationals. Lawful non-immigrants with pending Adjustment of Status (AOS) or refugees/asylees with pending immigration applications may face circumstances that demand travel outside the United States. Upon return to the US, foreign nationals with pending immigration applications, who previously held lawful status, are at risk of inadmissibility. However, individuals with pending applications for certain immigration benefits can apply for Advance Parole, which allows a foreign national reentry into the US under certain circumstances.
Who should apply for Advance Parole?
Non-Immigrants who have applied for AOS should apply for advance parole before leaving the country, otherwise USCIS will abandon the pending AOS application upon the applicant’s departure from the US unless the applicant is eligible to return the US in a different visa category. Non-immigrants in lawful status can request Advance Parole before leaving the country, and approval takes several months. Non-immigrants with parolee status can re-enter the US without needing to apply for a visa. For example, if an H-1B worker with a pending AOS plans to travel abroad, and is not certain if they will receive approval reentry through a H-1B visa or if their visa application will be approved by the US Consulate, then they should apply for Advance Parole. If an approved H-1B worker leaves for a trip abroad and has applied for, and received, Advance Parole before departure, the worker can re-enter into the US through Advance Parole.
Does Advance Parole Guarantee Entry?
No. Advance Parole, like visas into the US, do not guarantee entry. Customs and Border Patrol may deny entry for many reasons. Advance Parole expires a year after approval, therefore the re-entry privileges will no longer be valid upon its expiration.
How do I Get Advance Parole Approval?
Due to the chaotic nature of current re-entry regulations, travelers with pending adjustment of status should receive consultation before leaving the US. We at Sharma Law Offices are available to provide additional guidance to those with further questions.
Last week, USCIS released a memo outlining stricter requirements for petitioners and applicants seeking immigration benefits. The memo outlines that a petitioner or applicant must provide a “valid signature” to receive approval from a USCIS. A valid signature is defined by USCIS as any handwritten mark or sign by an individual to signify his or her knowledge of the contents of the request. It is not required that the valid signature be legible or in English, nor is it required to be in cursive handwriting. An individual unable to write in language may use “X” or a similar mark as a signature. As per USCIS, a signature created by a typewriter, world processor, stamp, auto-pen or similar device is not acceptable.
According to a previous memorandum, petitioners or applicants previously could use power of attorney (POA) signatures for applications for immigration benefits. This was allowed under general agency principles. However, the Department of Justice (DOJ) found that signatures from POAs “create an additional evidentiary burden, making it more difficult to litigate or prosecute immigration fraud when the filing is signed and filed by a POA.” Additionally, USCIS found that adjudicating officers did not treat applications with POA signatures with consistent scrutiny.
According to USCIS, the petitioner must write an authorized signature. Failure to comply may result in a rejected form. For example, a petition for a high skilled worker (H-1B) must include the signature of an authorized employer. The new requirement excludes applications on behalf of minors under the age of 14 and applicants who are mentally incompetent. USCIS will reject and return any request for immigration benefits not accompanied by a valid signature. Additionally, USCIS reiterated that a Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative, does not authorize a representative to sign the forms on behalf of the petitioner or the beneficiary.
While it is good news to see USCIS bring in consistency among USCIS officers and offices while increasing efforts to crack down on immigration fraud, this new requirement will put an additional burden on the businesses who, at times, are unavailable to sign the forms at a short notice. For corporations utilizing legal entities for administrative ease, the new requirement will present a hassle starting March 17th of this year when the guidance becomes effective.
 Under general legal principles, an individual or entity may authorize another to act on his or her behalf, and that person becomes an “Agent.”
Sometimes. Although an application support center (ASC) may refuse a walk-in, some applicants for permanent immigration benefits have successfully completed biometric appointments at a local ASC on a date before their scheduled appointment notice. If you decide to walk-in to your nearest ASC, you may have to wait for few hours because the center will prioritize appointments scheduled for that day. Although unlikely, your local ASC maintains the power to refuse to process biometric screenings if the screening occurred on a date other than the date on the appointment notice. Therefore, if you can make your assigned appointment date, it is advised to prioritize that date. In case the beneficiary is travelling or is unable to make it to the appointment, they do have the ability to reschedule the ASC appointment.
Can I go to another ASC, other than my assigned location?
Yes. If you are not able to make it to the center indicated on your appointment form for your biometric processing, some individuals have had success at other ASCs near them. For example, if your scheduled screening is in a location close to your residence, but you are in another town for a business trip, you may be able to visit the closest ASC to you. Like with walk-in appointments, the center will prioritize appointments schedule for that day.
What should I take to my Biometrics Appointment?
Regardless if your biometric appointment occurs at the time or location listed on your notice, you must bring your original ASC appointment notice and a valid photo ID (e.g. green card, passport, or driver’s license). If you do not have a valid form of identification, then the ASC will not be able to complete your biometric screening. Additionally, before your appointment USCIS suggests reading your copy of the completed application, petition, or request.
What happens after my biometrics appointment?
After the biometrics appointment, your information will be sent for processing at a USCIS service center. Due to increased waiting times, it may be a couple months after your biometrics appointment before you will receive a notice for an interview or the next steps for your interview.
In matters of multiple H-1B petitions filed for the same beneficiary, last month the Administrative Appeals Office (AAO) ruled, in a non-precedent decision, that “related entities” shall be interpreted beyond legal relations. Although the decision is not legally binding for USCIS, the case indicates that USCIS intends to crack down on petitioners attempting to beat the lottery system.
Multiple Petitioners for the Same Beneficiary
Each fiscal year, the total number of H-1B visas issued may not exceed 65,000 (additional 20,000 for those who have an advanced-degree from the U.S.). Once the filing cap is reached, a lottery system selects a lucky few recipients for the fiscal year. To stack the deck in their favor, USCIS found that multiple petitioners attempt each year to file for the same beneficiary. With more than one petition filed for the same beneficiary, these beneficiaries tend to have a greater chance of receiving the H-1B visa. However according to USCIS, “An employer may not file, in the same fiscal year, more than one H-1B petition on behalf of the same alien.” Additionally, subsidiaries or affiliates, or “related entities,” may not file concurrent H-1B petitions without “legitimate business need.” If suspected that an affiliate or subsidiary of the same organization filed more than one petition without a legitimate business need, then USCIS can send a RFE, notice of intent to deny, notice of intent to revoke. Before the AAO ruling, the “related entities” largely meant a legal relationship existed between the two entities.
Matter of S-S-INC
In the Matter of S-S-INC, the petitioner attempted to hire a “programmer analyst” by filing a H-1B petition. Another petition was filed for the same beneficiary by another petitioner, C-LLC. Since the two companies intended to send the same H-1B beneficiary to the same “end-client,” USCIS found that the two entities were “related entities.” USCIS reached this conclusion even though C-LLC and S-S-INC had no legal relationship.
With the upcoming Fiscal Year 2019 H-1B cap season, employer should be mindful of this decision and should not inadvertently scuttle their employee’s chances of obtaining the H-1B status.