The United States Citizenship and Immigration Services (USCIS) announced new guidance for adjudicating officers processing a Form I-130 spousal petition involving a minor party. Now, those petitions involving a minor party will require an initial interview as a part of the early stages of the Form I-130 adjudication.
From April 12th, 2019 on, all Form I-130 spousal petitions with a petitioner or beneficiary under the age of 16 years old will require an interview in the early stages. Those petitioners or beneficiaries seeking a spousal petition aged 16 or 17 will additionally be flagged for an initial interview if there is a 10 year or more age difference between the spouses. While there is no minimum age requirement for a spousal petition in the Immigration and Nationality Act, USCIS notes that the service will now consider these petitions with greater scrutiny given the unfortunate circumstances often surrounding child marriage. In many countries and areas around the United States, marriage is permitted before the age of 18 given specific requirements are met. The new initial interview process will ensure that the circumstances of the marriage were both legal and voluntary.
When adjudicating a spousal petition with at least one minor petitioner or beneficiary, USCIS adjudicating officers will now consider the following:
- Whether the marriage, at the place of celebration (e.g. country, municipality, etc.), was permissible under the local law;
- Whether the marriage is valid under the current legislation of the couple’s present or understood state of residence, as filed in their Form I-130;
- Whether the marriage conflicts with current public policy;
- And, whether the marriage is legitimate under immigration guidelines.
This backstop will now help to ensure that all Form I-130 petitions are submitted without coercion or abuse of minor parties. In a statement, the Director of USICIS, L. Francis Cissna emphasized the Service’s dedication to additional scrutiny for spousal petitions involving minors, noting that the duty now falls upon Congress to provide “more clarity under the law” for USCIS adjudicating officers. Given the absence of federal law restricting the age of petitioners or beneficiaries seeking spousal immigration benefits, USCIS officers must assess these petitions on a case by case basis.
USCIS does however, have the power to issue a request for evidence (RFE), which largely places the responsibility of proving a bona fide relationship to the petitioners. Regardless, all petitions filed with a minor party are automatically flagged in the electronic system. USCIS then is alerted if a minor spouse or fiancé is involved in a Form I-130 petition. If the birthdate of a spouse was incorrectly filed, petitioners will have the opportunity to correct the mistake.
In Florida, two people stood before a United States District court for their involvement in a marriage and visa fraud scheme. Ravi Babu Kolla, a foreign national from India and Krystal Cloud, of Altha, Florida conspired together to assist Indian foreign nationals with obtaining immigration benefits through the spousal visa program. Both parties have since pled guilty to charges of conspiracy to commit marriage and visa fraud and conspiracy to commit money laundering. Ms. Cloud, a United States citizen who entered a fraudulent marriage in 2017, faces two years in federal prison while Ravi Babu Kolla awaits sentencing from the acting United States Attorney for the Northern District of Florida, Lawrence Keefe.
Florida Marriage Fraud Scheme
For a period of 18-moths, from winter of 2017 to the summer of 2018, Kolla controlled an immigration fraud business in Bay County, Florida that sought out United States citizens to marry Indian foreign nationals. These clients payed Kolla to obtain US citizen spouses to remain in the United States under a fraudulent visa. According to the Department of Justice, a vast proportion of the foreign nationals had unlawfully extended the period of their prior visa or student visa, and were unlawfully present in the United States. While the recruitment of US citizens took place in Florida, the majority of the fake marriages were performed in the state of Alabama. In total, Kolla and Cloud facilitated over 80 fraudulent marriages.
In assisting with recruitment of US citizens, Cloud, a party in a fraudulent marriage herself, targeted vulnerable citizens in the largely rural areas surrounding Panama City and other nearby areas. In total, she pled guilty to assisting over 10 fraudulent marriages starting in late 2017. Cloud additionally aided in the gathering of personal information from the US citizen spouses, required in Form I-130 petitions. Kolla then created fraudulent immigration forms to allow those Indian foreign nationals who payed for Kolla’s services to live and remain in the United States. A United States citizen, Cloud will see only two years of prison. However, Kolla, who is detained in Florida awaiting sentencing procedures, could face up to 5 years for conspiracy to commit marriage fraud in addition to up to 20 years for money laundering conspiracy.
A United States Department of Labor (DOL) investigation has resulted in a federal order for a Minnesota technology company to pay an engineer back wages to the amount of $43,336. A federal judge ruled against the company, citing violations to H-1B wage regulations.
The DOL Labor’s Wage and Hour Division (WHD) and its investigation unit provided evidence to Judge Theresa Timlin in Minnesota following findings of misconduct within the TLC Precision Wafer Technologies Incorporation, located in Minneapolis, Minnesota. The company, which employs H-1B highly skilled workers, failed to pay a microfabrication engineer, working under the H-1B program, the wages stated in the H-1B application. TLC Precision Wafer Technologies Inc. additionally failed to maintain adequate records of payment to the engineer. While the Tech company had payed the engineer over $14,000 in cash reimbursements, Judge Timlin denied credit for the payment due to the lack of records and reporting of the payment to payroll and the Internal Revenue Service (IRS), as required to credit these payments.
Originally, the engineer was set to receive an annual salary of $43,000, per the H-1B petition. However, the employee left the tech company after they received reduced hours and pay. H-1B workers must be paid “at least equal to the actual wage paid by the employer to other workers with similar experience and qualifications for the job in question, or the prevailing wage for the occupation in the area of intended employment – whichever is greater.” In denying the engineer payment as agreed in the H-1B program, the company unlawfully exploited the engineer. The company will now pay back wages of $43,366 in addition to payments for pre-judgement and post-judgement interest.
In a statement, the director of WHD in Minneapolis, David King said, “The resolution of this case demonstrates our commitment to safeguard American jobs, level the playing field for law-abiding employers, and ensure no one is being paid less than they are legally owed.” While the DOL works primarily to protect the interest of US worker, the DOL additionally protects the wages guaranteed to foreign nationals, especially in the case of the H-1B minimum salary requirements.
According to Forbes, students in graduate programs across the country are urging law makers to immigration policies affecting international students. In a letter to members of congress, the graduate student associations of five of Texas’ top university urged lawmakers to reconsider recent policy changes to student visas. The student group, which represents graduate students both native and foreign, cited a National Science Foundation study that noted federal changes had resulted in a nearly 6% decrease in international graduate enrollment.
Call for Action
The presidents of Graduate associations from Baylor, Rice, Texas A&M, University of Houston, and the University of Texas at Austin, some of the leading research institutions in the United States, were included in the joint letter to members of congress. The letter cited three major USCIS policies that were cited as contributing to the decline in international enrollment for graduate programming. The first policy, involves a May of 2018 change to USCIS procedures for determining “unlawful presence” for foreign students, which according to the letter imposed stricter interpretations of accrual of unlawful presence days following the expiration of a F, J or M visa. The second policy concern revolves around a series of memos posted this summer that shocked many seeking immigration benefits in the United States. Specifically, the student organization opposes guidelines for USCIS officers allowing adjudicators to deny a request for immigration benefits without issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID). Without the opportunity to amend errors in applications, students are now left without an opportunity pursue research in areas of need, like Texas.
Thirdly, the graduate student group offered criticism for the Department of Homeland Security proposal to “set a uniform and fixed maximum period of stay for student visas.” Although the Trump administration states that the change would “reduce overstay rates for nonimmigrant students,” the letter warns of the immense cost. Given the unpredictable period of research cycles, students would be unable to determine a fixed period for a full duration of their research. Therefore, many graduate researchers could be forced to leave the country before the end of their program. The group claims that this change would deter many of the world’s top researchers from coming to the United States to study. The students want congress to act against these policies, both proposed and implemented, so that research operations in universities and colleges can continue to produce must needed breakthroughs.
Several media sources, and employers across the nation, were surprised when the National Foundation for American Policy (NFAP), a non-partisan research group, released aggregated data from the last two decades of H-1B filings. Since Fiscal Year 1999, H-1B fees payed by employers totaled nearly $5 billion. The report, released early April, highlights many of ways in which the H-1B financially supports government programming for the benefit of native workers. Although non-partisan in nature, the report does mention and critique the recent immigration changes made during the Trump Administration. In particular, the report assesses the potential consequences of the Trump Administration’s proposal to double H-1B fees.
Employers seeking to hire high-skilled foreign nationals through the H-1B nonimmigrant visa program must pay a training and scholarship fee to the amount of $1,500. While the Trump administration has considered increasing these fees, the study claims that employers of H-1B holders have funded nearly 90,000 scholarships since its start in Fiscal Year 1999. With these funds over one million student and teacher recipients gained monetary funding for science, technology, engineering and math fields; these funds in the 20 year time span totaled $1.94 billion. H-1B fees paid by employers additionally granted around 2.5 billion dollars’ worth of technology training for US workers. Excluded from these estimates are the $1.6 billion worth of anti-fraud fees payed by employers.
The studynotes that, since Fiscal Year 2005, employers have paid nearly $1.6 billion to fund “audits and investigations against themselves.” While fees payed by employers have increased over the years, these increases have been matched with the expansion of the H-1B program. However, the report argues that the FY2020 increase in H-1B fees proposed by the Trump administration would unfairly burden employers. While there have been increases to fees in the past (outside of normal inflation adjustments), these increases have been met with increases to the H-1B cap. The proposal, which omits any expansion of the H-1B cap, could further deter employers and subsequently harm the scholarship program.
The director of the United States Citizenship and Immigration Service (USCIS), L. Francis Cissna has reportedly announced the end to the International Division of USCIS. This change would bring about the end of two dozen international branches of USCIS. The end of the USCIS international field office program would occur by the end of 2019, ending 24 programs in 21 countries. The decision to close USCIS international offices around the world comes as an effort to save millions of dollars per year.
Several reports indicate that USCIS is in the “preliminary” stages of disseminating all USCIS field office responsibility to officials in the US State Department. Therefore, the personnel of the State Department would be responsible for immigration matters previously held by the international USCIS field offices. However, some US embassies and consulates abroad could now hold USCIS type responsibilities. These responsibilities include refugee applications, family reunification visas, foreign adoptions, parole requests, and naturalization documents for military members with foreign national spouses.
A representative for USCIS, Jessica Collins, told NPR that “The goal of any such shift would be to maximize USCIS resources that could then be reallocated, in part, to backlog reduction.” Collins further commented in response to concerns about the sudden closers, stating that the Department of Homeland Security and the US State Department would “ensure no interruption in the provision of immigration services to affected applicants and petitioners.” While the reallocation of resources spent on operations abroad could have a small impact on the backlog domestically, the move likely comes as President Trump works towards slashing government spending to pay for other administrative priorities. These changes will cause longer wait times for those who seek US visa privileges from abroad, and the closures will be especially harmful for refugees.
Along with retransferring basic USCIS responsibilities to already over-worked State Department and embassy staff, the new changes could spell greater delays for refugees seeking residence in the United States. Many are concerned that the added workload will exacerbate an already slow refugee process, in a time when there is the largest refugee population in recorded history.
When completing a naturalization application, or any application for visa or citizenship privileges, applicants are held under the penalties of federal law. In Worcester, Massachusetts a man is in custody under charges of making a false statement on an application for naturalization. While many believe making false statements to conceal any past unpleasantries (e.g. former criminal charges, etc.) may increase their chances of receiving approval for benefits sought, willful omission of facts or direct false statements in an application, for naturalization or any immigration benefit can lead to federal prosecution.
The individual in custody, who remains innocent until proven guilty, stands accused of making a false statement on his application for naturalization. Richard Cheremeh, although real identity unknown, was charged with one count of making a false statement relating to his naturalization and one count of aggravated identity theft. The indictment lists the man under the name John Doe due to suspicion that the individual listed as “Richard Cheremeh” has stolen the identity. During “Doe’s” naturalization process, the man falsely stated that he had never given any US government official any information or documentation that was false, fraudulent, or misleading, one of the common questions on the N-400 application for naturalization. This contradicts allegations the man’s naturalization was obtained through the use of a stolen identity. By allegedly lying on question 31 of the N-400 application, “Doe,” if found guilty, is now at risk of a federal prison sentence.
If someone is found guilty of making a false statement related to their naturalization, this individual will face prison time for no greater than five years including three years of supervised release. Additionally, guilty parties face up to a quarter of a million dollars’ worth of fines. “Doe,” who is additionally charged with identity theft could face a minimum of two years in prison and up to one year of supervised release with an additional penalty of up to quarter of a million dollars. The details of the idictment were made public to warn other of the consequences of false statements on applications for naturalization. The individual in custody is presumed innocent unless proven guilty beyond a reasonable doubt in the federal court responsible for this case.
Federal regulations prohibit the filing of more than one H-1B petition for the same beneficiary in the same Fiscal Year, regardless if the filing is adjudicated by a parent company and its subsidiary or related entity. However, some petitioners may be unsure if the company filed more than one petition, particularly if a petition for the previous fiscal year remains unadjudicated. While premium processing for most visa classes has been reinstated for Fiscal Year 2019 (FY19) and pending petitions are now be expedited, many petitions are still awaiting adjudication. As employers prepare for the Fiscal Year 2020 (FY20) H-1B cap-subject filing season, considerations must be made to ensure that pending FY19 petitions do not subject the company to the penalties of multiple filings.
Pending FY19 & New FY20 Petitions
Although many FY19 petitions have been resolved, some remain pending due to a Request for Evidence (RFE) or ineligibility for premium processing. Those employers who wish to file a petition for the same person for the same position for FY20 while another petition for FY19 remains pending must proceed carefully. Regulations dictate that employers may not file for the same petitioner in the same fiscal year, largely to prevent employers from unfairly filing multiple petitions to increase the likelihood of selection for the H-1B lottery. The regulation does not explicitly take issue with filings in differentfiscal years. However, given that adjudication of H-1B visas depends on the interpretation of USCIS officers, the duplicate filing could be flagged by government officials. To prevent this, employers may consider a different position for the beneficiary if one is available or present a memo outlining the circumstances of the pending FY19 petitions. If an employer submits a FY20 petition, and the FY19 petitions is approved before the FY20 petition, the petitioner should withdraw the unnecessary FY20 petition. If not, the beneficiary could be left with conflicting start and end dates for their H-1B visa. While this case would be an ideal scenario, it is unclear whether USCIS will adjudicate an FY20 petition while a FY19 petition remains pending. Please feel free to schedule a consultation to discuss the unique circumstances of any of your pending FY19 petitions.
Recently the United States Citizenship and Immigration Service (USCIS) announced that the service would resume premium processing on February 19thfor those regular pool H-1B petitions filed on or before December 21stof 2018. This announcement follows an earlier resumption of premium processing for fiscal year 2019 masters-cap petitions.
Those petitioners who have received a transfer notice must request premium processing through the service center where the petition is pending along with a copy of the transfer notice, or Form I-797. If the premium processing and transfer notice are not filed concurrently, there could be potential delays to the beginning of the 15-day processing time. If a premium processing request is sent to the wrong center, USCIS will forward the request to the correct service center, however, the premium processing deadline will not begin until the request reaches the appropriate service center. USCIS will not refund the premium processing fee until 15 days after the request has reached the service center that possesses the appropriate petition. Additionally, those who have received a request for evidence for an application pending from submission on or before December 21stof 2018, should include the request for evidence response along with the premium processing request. As the fiscal year 2020 filing season begins, USCIS is making efforts to clear a backlog of pending application made in 2018. USCIS notes that it will announce when other classes of petitions regain access to premium processing.
United States Citizenship and Immigration Service (USCIS) announced new changes to the Form I-539, Application to Extend/ Change Nonimmigrant Status. On the cusp of the H-1B filing season, this new change will swiftly alter form requirements for several visa petitions, including the dependents of H-1B visa holders.
Change to Form
On March 11, 2019 and beyond, all filed Form I-539 documents must reflect changes made in February, less than 30 days from the roll out. Those who submit older versions of the Form I-539, without a revision notation of 2/04/19, will receive a rejection. The new form includes requirements that every applicant and co-applicant pay a $85 biometrics fee. This requirement extends to all children, regardless of age (e.g. H-4 dependents, L-2 dependents, F-2 dependents). The change comes without a grace period nor a 90-day period for public comment.
Those dependents must sign and submit a separate Form I-539A, available on the USCIS website on March 11. The Supplement A form will no longer be available, and each individual dependent or co-dependent will submit a separate form. Parents or guardians may sign forms for those under the age of 14 or for any co-applicant who is not mentally competent to sign. All applicants and co-applicants must pay the $85 biometrics fee unless included in the exemptions to be listed on the USCIS website come March 11th. USCIS notes that “Every applicant and co-applicant will receive a biometric services appointment notice, regardless of age, containing their individual receipt number.” These non-immigrant applications will now require these applicants and co-applicants to complete biometric screenings.