In the past few months, the United States Customs and Immigration Service (USCIS) has launched new initiatives to promote greater scrutiny towards several types of immigration applications. Under these new guidelines, Lawful Permanent Residents (LPR) and U.S. Citizens have received an alarming amount of RFEs, or request for evidence, for family-based applications.
Petition for Alien Relative
Once an individual is a LPR or citizen of the United States they may submit a petition for an alien relative to immigrate to the United States, or form I-130. Priority is given to immediate relatives (i.e. spouse, unmarried children, parent). Most frequently, LPRs and U.S. citizens file petitions for their spouse and children. To complete the form I-130, petitioners must establish a bona fide relationship with the relative that they wish to help immigrate to the United States. For years, the documents required to establish a bona fide relationship between spouses has been extensive, yet reasonable. Thus, to file a petition for an alien spouse, petitioners would present a marriage certificate and a few pictures documenting the relationship between the alien spouse and the citizen/LPR spouse. This application would be submitted and processed through a USCIS Lockbox and then referred to a local USCIS office. Later, during the interview process, spouses would be required to provide further evidence of a bona fide relationship (e.g. additional pictures, utility bills, credit card statements, etc.). However, it appears that USCIS now expects more evidence for initial filings than has been typical.
More Evidence, More Roadblocks
In the last several months, applications have been halted at the beginning stages. Several petitioners have received RFEs stating insufficient evidence based on documentation that has, in the past, been sufficient for the initial I-130 filing. These RFEs outline a new extensive list of documents necessary to establish a bona fide relationship including:
In some instances, USCIS has required petitioners to submit notarized statements from members of the beneficiary’s family stating why they were not present at the wedding ceremony.
The volume of RFEs has significantly slowed the immigration benefit process. For family-based petitions, the level of documentation necessary for the first stage of the filing process is atypical and a nuisance for families attempting to reunite in the U.S.
Under the direction of the Department of Homeland Security, a special investigation ICE task force created a fake University to catch foreign students trying to stay in the United States using the ‘Day 1 CPT’ program. Through a bogus online presence and fake office front, the University of Farmington had all the trappings of a real educational institution. However, the fake university had no staff, no instructors, no curriculum, and no classes. Last week, “students” of, and recruiters from, this bogus university were arrested and indicted for conspiracy to commit visa fraud and harboring aliens for profit. These individuals now face the possibility of deportation.
Since 2015, Homeland Security agents have posed as owners and employees of the University of Farmington. The fake university scheme attempted to lure those students who wished to work while going to school as well as those recruiters that assist fraudulent F-1 students in obtaining university documents. According to the indictment, the university was used by foreign nationals as a “pay to stay” scheme which allowed individuals to remain in the United States by falsely asserting they were full-time students at Farmington University. The operation maintained a shell office in Michigan, the address which was used to maintain false immigration documentation.
Exposing an Exploitation Network
Those arrested in the indictment last week included individuals involved in a nation-wide network of recruiters that assisted fraudulent students in obtaining false records including:
fake student records;
These recruiters named in the indictment charged heavy fees to hundreds of foreign nationals so that they could remain in the United States. By portraying these foreign nationals as students of the University of Farmington, the recruiter network made over a quarter of a million dollars as per the newspaper reports. The profitable network owed its success to the exploitation of foreign nationals wishing to stay in the United States. However, it is unclear if any of the participants of the scheme were aware that the University of Farmington was a fake University.
The indictment comes after a wave of initiatives out of the Department of Homeland Security to maintain the legitimacy of visa programs, like student visa programs. The Homeland Security Special Agent in Charge noted that ICE will be “vigilant to ensure the integrity of the U.S. immigration laws and will continue to investigate this and other transnational crimes.”
The United States Citizenship and Immigration Service (USCIS) announced late last month a new set of eligible visas and naturalization filings for online applications. With an online account, applicants can now complete and file a Form N-600, Application for Certificate of Citizenship. Additionally, USCIS announced that N-600K, Application for Citizenship and Issuance of Certificate Under Section 322 is now available online.
Over the last couple of years, USCIS has continued efforts to move filings, including all paperwork required, online. The director of USCIS, L. Francis Cissna expressed the services major goal to move into the digital age: “One of the major burdens to both benefit seekers and the agency’s adjudicators is the costly, time consuming, and cumbersome process of traditional paper filing.” The new visa classification available for online filing follows seven other visa classifications that have transitioned to online filing. “This addition to our online capabilities is yet another positive advancement toward a more efficient and convenient filing experience for everyone involved.” Other applications available for online filing include: Form I-90, Form N-336, Form N-400, Form N-565, among others.
Applications for Certificates of Citizenship, form N-600, are available to individuals and their minor children if they were born abroad and are claiming United States citizenship at birth through their parents or automatically became a United States citizen after birth, but before they turned 18 years old. This naturalization application is often used by military service people for their children born abroad, however U.S. service members have separate requirements for naturalization. To complete the online filing, eligible applicants must createa USCIS online account. Once applicants create an account, either the applicant or the applicant’s counsel can complete and submit the Form N-600 or N-600K, including additional information and filing fees. Once submitted, applicants can monitor the status of their application, respond to request for evidence, and manage their contact information.
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.
On September 11, 2018, the United States Citizenship and Immigration Service (USCIS) further suspended premium processing for cap-subject H-1B petitions while expanding the premium processing suspension for additional H-1B petitions. Last year’s suspension was set to expand well into February. However, USCIS has announced that the Service will continue premium processing on January 28th for all fiscal year 2019 H-1B cap petitions. For petitioners, the lifted suspension will hopefully end a long period of delay.
The Premium Processing request allows for petitioners to file for expedited processing of an H-1B visa. If approved, those petitioners who pay the premium processing fee are guaranteed a 15-day processing time. If the petitioner does not receive an adjudication within 15 days, USCIS refunds the premium processing fee of $1,410. The fee increased late last year by nearly $200 to adjust to the consumer price index.
Reason for Suspension
USCIS suspended premium processing in March of 2018 to adjust for the busy filing time. However, this left many forced to endure long wait times. Set to end in September of 2018, the suspension was again expanded into early this year. With over 200,000 applications for premium processing each year, USCIS often is unable to provide the expedited service.
By lifting the suspension on premium processing for FY19 filings, USCIS has now allowed those eligible for advanced degree exemptions (the master’s cap), to file for premium processing. Those who received requests for evidence (RFE) for a FY19 cap petition may submit their premium processing request with their RFE response. USCIS has yet to announce premium processing availability for other categories of H-1B petitions.
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.
Those who wish to become a citizen, and do not qualify for a test waiver, must complete the Civics Test to finish the naturalization process. Those preparing for the U.S. history and government test focuses on a variety of subjects, including knowledge about representatives. Every couple of years, either due to information or election changes, the answers on the Civics Test change.
Tests Answers Reflect Federal and State Elections
From time to time, answers on the Civics Test for naturalization change to reflect federal and state elections. A new group of officials, elected in the 2018 midterms, were sworn into office early this year, changing several answers on the exam. Questions impacted include:
Who is one of your state’s U.S. senators now?
Name your U.S. representative.
Who is the Governor of your state now?
What is the name of the Speaker of the House of Representatives now?
The information for both U.S. senators for your state is updated on the senate website. Information regarding your representative can be found on the House of Representativeswebsite, however you will need your current residential information to find your congressional district. To find information about the current Speaker of the House Representative, USCIS has created a “test updates” page which lists the current speaker. To find information about your state’s current governor, you may visit usa.gov/states-and-territories. Several gubernatorial inaugurations take place well into the new year, so be sure to check regularly to stay updated on the governor of your state on the day of your Civics Test.
Other Test Updates
Periodically, other questions on the Civics Test may change. For instance, once a Chief Justice of the United States Supreme Court retires, a new justice in named in their place by the President. To receive any updates about questions that may change, visit the USCIS test update page.
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.
During one of the busiest travel seasons of the year, it is important to take note of strict time cut offs for applications for entrance into the United States. Those eligible to enter into the United States through the Visa Waiver Program (VWP), in particular, should apply for Electronic System for Travel Authorization (ESTA) at least 72 hours before departure to avoid any possible entry denials. Maintaining awareness of important deadlines will prevent any unnecessary delays to entry.
The VWP allows citizens from several eligible countries to enter the United States without a visa for up to 90 days for either business of pleasure. Eligible countries include countries within the European Union, Chile, Taiwan, and many more. Those who wish to enter through the VWP must not be currently in possession of a visitor’s visa and must hold a valid passport. As of 2018, the fee for ESTA is $14.
Since the early 2000s, the ESTA program has enabled the Department of Homeland Security to gather important security information about travelers entering the United States from both air and sea. Previously, ESTA application processing was allowed on the same day of travel. However, to increase security and processing efficiency, all applications should be submitted three days before departure. Those that attempt to apply the same day of departure could be denied authorization to enter the United States, and therefore will be unable to board their flight. To avoid any mishaps, Customs and Border Patrol suggests applying for ESTA at the time of booking your flight. Once submitted and approved, applicants may check the status of their ESTA or make any changes if necessary. Families traveling to the United States may file group applications and pay all required fees through the ESTA application management system. If you have any questions about assisting family members traveling to the United States, or require assistance yourself, please feel free to request a consultation.
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.