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.
Many companies across the country utilize the B-1 visitors’ program to bring business partners from around the globe to the United States for short term visits. This program enables companies, big and small, to collaborate with global partners and engage face to face with foreign based colleagues. To help the streamline the B-1 visa application process, the Department of State created the Business Visa Center, or BVC. For companies wishing to bring partners to the United States, the BVC serves as a hub for all things B-1.
How can the BVC help my company?
The BVC serves as a specialized information hub for the B-1 visa application process. Companies can contact the center for detailed application instructions for all clients, partners, foreign employees, and other foreign nationals associated with the company who wish to enter the United States through the short-term B-1 visa. The BVC helps companies understand specific requirements from different embassies and consulates and educates organizations about the ways in which partners can qualify for expedited interview appointments. By consolidating these inquires at the BVC, embassies and consulates are able to better focus on processing applications as they come in. The BVC also makes large international sports events hosted in the U.S. easier, by posting events on the Department of State Intranet, allowing B-1 visa applicants to get approval in a timely fashion.
How does my company contact BVC?
Questions may be directed to the BVC email at: email@example.com or by phone at 202-485-7675. Business hours are Monday through Friday, 8:30 a.m.-5:00 p.m. eastern time.
The Government of Canada recently issued the Express Entry Year-end Report 2017, outlining huge spikes in legal immigration to the country. The report, which highlights data collected through the country’s application management system for key economic immigration programs, expresses drastic changes in levels of foreign nationals admitted for residency in Canada. After a year and a half of uninviting immigration news out of the United States, and increasing animosity out of the Trump Whitehouse, professionals seeking to work in other countries are looking outside of the United States.
Unlike processing under USCIS, the Canadian Government uses a Comprehensive Ranking System (CRS) which ranks candidates based on a detailed points system. Under CRS, applications through Express Entry are selected through a dynamic pool based on total accumulated points. Applicants receive additional points for skills and education levels. For example, candidates with French proficiency receive extra points if they score high enough on a French proficiency test. The Canadian system aims to attract highly skilled workers through a short-term application process, which sets the country apart from the United States. Regardless of the systematic differences between the United States and Canada, the 2017 Canadian report shows a huge spike in legal immigration.
From 2016 to 2017, the Canadian government issued 200% more invitations for permanent residence to natives of India, and over 65,000 citizens of India were admitted to work in Canadian provinces. This spike in immigration from India came with similar spikes in admittance from countries like China and Nigeria. Unlike Canada, the United States has increased wait times for green cards, leaving many waiting years for a decision. As tensions continue to rise over the immigration debate in the United States, countries like Canada are benefitting from an influx of highly skilled workers to the detriment of the United States.
According to the Washington Post, the Trump Administration aims to threaten naturalized citizens through the use of decades old fingerprint analysis. Denaturalization, or revoking citizenship, is extremely rare and occurs only in extreme cases of fraud or criminal activity. Now the Department of Homeland Security (DHS) and the United States Customs and Immigration Service (USCIS) teamed up to investigate immigration fraud, the possibility of denaturalization increased drastically. This investigation led to a Federal court decision which removed U.S. citizenship from a native of India. Following the decision, the director of USCIS, L. Francis Cissna has devoted more USCIS resources towards analyzing decades old fingerprint data to uncover citizenship fraud.
After the Federal court judge revoked citizenship on the grounds of fingerprint evidence, the Trump Administration gained the precedent necessary to investigate the citizenship of thousands of naturalized citizens who’s fingerprints were collected in the 1990s. The director of USCIS, L. Francis Cissna, confirmed to the Associated Press that USCIS was hiring new lawyers and immigration officers to investigate potential fraudulent citizenship claims by digitizing old fingerprints. According to the Washington Post “If decades-old fingerprints gathered during a deportation match those of someone who did not disclose that deportation on their naturalization application or used a different name, that individual could be targeted.” This announcement displays a shift in attitudes towards revoking citizenship; as such, denaturalization may become a common occurrence.
Director Cissna is clear in that the new USCIS effort to remove citizenship from naturalized immigrants is an effort to crack down on fraudulent citizenship claims. Therefore, those who have lived as citizens of the United States for decades may soon be stripped of their claims to the United States.
Foreign nationals often complete their undergraduate education programs in the United States due to the robust educational opportunities available at many U.S. colleges and universities. After graduating from U.S. institutions, F-1 students have the opportunity to continue their education with more hands-on programming, made possible through OPT. With relevant work experience in the United States, students are better equipped to join the labor force following the end of their education program. As with all visa programs, students with F-1 visas must abide by certain regulations to maintain their OPT work authorization.
The United States Customs and Immigration Service released a notice earlier this year, reminding students with OPT (Optional Practical Training) that transferring to another school or beginning an academic program at a different educational level automatically terminates their OPT along with their employment authorization document (EAD). To remain in lawful status, students should be aware of the ways in which their academic decisions impact their ability to work lawfully in the United States.
For example, if a student graduates from a four-year bachelor’s program and applies for OPT, their working privileges and OPT status would end if they enroll in a master’s degree program. To maintain lawful status, the student must comply with all requirements under the F-1 visa (i.e. not working under a terminated EAD). If a student works under OPT and enrolls into a graduate program or transfers schools, their EAD will no longer be valid. Under these circumstances, the U.S. Immigration and Customs Enforcement (ICE) Student and Exchange Visitor Program (SEVP) then notifies USCIS of the termination date of the student’s OPT. USCIS will immediately update the student’s EAD status and will notify students of the change to their work privileges. If a student receives notice from USCIS, without changing their enrollment status, they may contact their school’s SEVP designated school official to correct the error.
From time to time, ICE’s Student and Exchange Visitor Program (SEVP) will broadcast messages informing students about certain regulations. Although the messages are informative, and reflect federal policy, the broadcast is not law. Last month, the SEVP released a broadcast informing students that the certain volunteer positions are not valid under the optional practical training (OPT) employment program.
General Information Volunteer
Optional practical training allows students to remain in the United States for a year or more for an internship, training program, or volunteer experience. In the broadcast released last month, volunteer positions, that are not directly related to a student’s course of study do not qualify as position under the OPT program. Often, students are unable to find opportunities that relate to their major or field of study. Therefore, after graduation, some students decide to take a position that is not related to their intended career. However, if the students reports a position that is unrelated to their course of study, the report will be seen as a violation of the requirements under the OPT. Violations will subject students to removal procedures. If someone is employed under a non-qualifying volunteer position, the accrual of unemployment will not cease. After 90 days of unemployment under OPT, students must leave the United States. Therefore, students in non-qualifying positions have less than three months to leave, regardless if they a volunteer. This broadcast does not apply to STEM OPT, which requires a non-volunteer position.
According to this broadcast, if a student graduated with a degree in economics, but obtained a volunteer position with a psychiatric hospital, and none of the training focused on economics, the student would begin accruing unlawful presence after 90 days. If you have any questions about your OPT, feel free to contact our office.
Each year, the U.S. Citizenship and Immigration Service (USCIS) releases an annual report outlining the major trends in the specialty occupation program. The report gathers data for the last fiscal year and analyzes major trends in comparison to previous years. The fiscal year 2017 report, which covers from October 1, 2016 to September 30, 2018, has many surprising trends. Overall, the number of approved H-1B petitions rose 5.9% from FY16. Although the last couple of years have been difficult for foreign nationals, the report proves that the United States remains an attractive location for a highly skilled foreign workforce.
Of the 403, 675 H-1B petitions filed in FY17, millennials and IT professionals were among the major winners. Two out of three petitions filed for workers between the ages of 25 and 34 (millennial workers) were approved. Nearly 70% of allapproved petitions were for IT professionals, including those in computer programming occupations. This comes as a positive indicator in light of the USCIS memorandum covering computer programming positions. The memo, challenged the classification of computer programing as a valid specialty occupation under the H-1B program. Consequently, many firms reported challenges to petitions that listed the occupations as “computer programmer.” Regardless, FY17 saw a steady stream of computer related H-1B workers.
In addition to rising numbers, the report details the country of origin distribution for petitions both for non-immigrants in the U.S. and abroad. Over 200,000 petitions came from citizens of India, the largest contributor. Far behind, petitions from citizens of China came in around 19,000, the second largest contributor. Of all petitions, over a forth of beneficiaries had a master’s degree; over 13,000 held a Ph.D.
Although the report indicates some rising trends in H-1B petition approvals, much of the change can be attributed to previously pending cases. The stricter regulations against legal immigration may not appear until the FY18 report is released. However, the report brings hope for some industries, especially those occupied in IT (i.e. computer programmers).
The United States Citizenship and Immigration Service (USCIS) issued an announcement for new, redesigned Citizenship and Naturalization certificates. The change comes after a successful pilot launch of the improved certificates at several field offices across the country. These eight certificates will have a new design to provide a fresh look and, more importantly, greater safeguards against document fraud.
Although certificates of naturalization are widely known, certificates of citizenship are less common. Certificates of citizenship are issued to those with U.S. citizenship who obtained status without being born in the United States or through the naturalization process. Certificates of Citizenship included in the redesign are:
N-560A; issued to an applicant who derived citizenship after birth;
N-560AB; issued to an applicant who derived citizenship at birth;
N-645 and N-645A, issued to the family of an individual who served honorably in the U.S. armed forces during a designated period of hostility and died as a result of injury or disease incurred in or aggravated by that service (Form N-645 is issued if the decedent was a male, and Form N-645A if the decedent was a female)
N-561, issued to replace a Certificate of Citizenship when the original certificate is lost, mutilated, or contains errors.
The newly redesigned certificates of naturalization are:
N-550, issued to an individual who obtains U.S. citizenship through the naturalization process;
N-578, issued to a naturalized U.S. citizen to obtain recognition as a United States citizen by a foreign state; and
N-570, issued when the original Certificate of Naturalization is lost, mutilated, or contains errors.
The new certificate look will help to deter counterfeiters from producing fake documents. Now, the certificates are printed on a “complex patterned background,” with a central image on each certificate. The image is unique to each certificate and is only visible under ultraviolet light. USCIS notes that the agency will continue to change the design every couple of years to insure the highest security of important immigration documents.