UPDATE: Mandatory Employment-Based I-485 Adjustment of Status (Green Card) Interviews

On September 28, 2017, the U.S. Citizenship and Immigration Services (USCIS) hosted a stakeholder call to discuss the implementation of the new interview requirement for employment-based adjustment of status (I-485) applicants. During this call, USCIS indicated that all I-485 cases filed before March 6, 2017 will continue to be adjudicated by USCIS Service Centers. These cases will likely be approved without an interview, although under “normal” circumstances, approximately 5 to 10% of employment based cases are typically pulled for interview – usually on a random basis or based on certain triggers such as an arrest record or the legitimacy of a marriage. All employment-based I-485 applications (EB-1, EB-2, EB-3) that are filed after March 6, 2017 will be subject to an interview.

USCIS began conducting interviews nationwide on October 2, 2017. The top ten field offices that are most impacted by this new workload are:

Atlanta Chicago Dallas
Houston Los Angeles New York
Newark San Francisco San Jose
Seattle

Loke Walsh Immigration Law expects that USCIS processing times will be impacted, including family-based and N-400 citizenship applications, but no one knows what the expected timing will be. We will keep you updated with any new developments.

Posted in Updates

USCIS Resumes Premium Processing Service For All H-1B Petitions

The U.S. Citizenship and Immigration Services (USCIS) announced that it resumed premium processing today for all types of H-1B petitions. The premium processing service was temporarily suspended on April 3, 2017, which was the beginning of the H-1B FY 2018 cap season.

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New Presidential Proclamation Imposes Country-Specific Travel Restrictions (Travel Ban 3.0)

This travel restriction was BLOCKED!

On September 24th, President Trump issued a Presidential Proclamation, titled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats.”

The Presidential Proclamation sets forth specific travel restrictions and security procedures for nationals of countries, which do not support the U.S. Government’s ability to confirm the identity of individuals seeking entry into the United States as immigrants and nonimmigrants, as well as individuals applying for any other benefit under the immigration laws.

 

New Country-Specific Travel Restrictions

 

Country Nonimmigrant Visas Immigrant Visas Notes
Chad B-1, B-2, B-1/B-2 entries are suspended. All immigrant entries, including Diversity Visas, are suspended.
Iran All entries are suspended.

Exception: Entries by nationals of Iran, under valid student (F and M) and exchange visitor (J) visas, are not suspended.

All, including Diversity Visas, are suspended. Entry under valid student (F and M) and exchange visitor (J) visas would be subject to enhanced screening and vetting requirements.
Libya B-1, B-2, B-1/B-2 entries are suspended. All immigrant entries, including Diversity Visas, are suspended.
North Korea All nonimmigrant entries are suspended. All immigrant entries, including Diversity Visas, are suspended.
Syria All nonimmigrant entries are suspended. All immigrant entries, including Diversity Visas, are suspended.
Venezuela B-1, B-2, B-1/B-2 entries of officials (and their immediate family members) of government agencies of Venezuela involved in screening and vetting procedures — including the Ministry of the Popular Power for Interior, Justice and Peace; the Administrative Service of Identification, Migration and Immigration; the Scientific, Penal and Criminal Investigation Service Corps; the Bolivarian National Intelligence Service; and the Ministry of the Popular Power for Foreign Relations — are suspended. No restrictions. Nationals of Venezuela who are visa holders would be subject to appropriate additional measures to ensure traveler information remains current.
Yemen B-1, B-2, B-1/B-2 entries are suspended. All immigrant entries, including Diversity Visas, are suspended.
Somalia All nonimmigrant entries are suspended. All immigrant entries, including Diversity Visas, are suspended. Visa adjudications for nationals of Somalia and decisions regarding their entry as nonimmigrants would be subject to additional scrutiny to determine if applicants are connected to terrorist organizations or otherwise pose a threat to the national security or public safety of the United States.
 

Updated List of Countries

The list of countries from the previous Executive Order 13780 (or Travel Ban 2.0), originally included Sudan, Syria, Iran, Libya, Somalia and Yemen. This Presidential Proclamation maintained modified or eased restrictions on the following countries:

  • Sudan: Sudanese nationals are no longer subject to travel restrictions.
  • Chad: Nationals of Chad are now subject to travel restrictions.
  • North Korea: Nationals of North Korea are now subject to travel restrictions.
  • Venezuela: Certain nationals of Venezuela are now subject to travel restrictions.
  • Iraq: Nationals of Iraq are still not subject to travel restrictions. However, nationals of Iraq who seek to enter the United States would be subject to additional scrutiny to determine if they pose risks to the national security or public safety of the United States.

 

Effective Date

The State Department will implement the Presidential Proclamation (PP) at U.S. embassies and consulates abroad as follows:

Phase 1 From 3:30 p.m. EDT on Sunday, September 24, 2017 until 12:01 a.m. EDT on Wednesday, October 18, 2017
Nationals of Iran, Libya, Syria, Yemen, and Somalia Nationals of these five countries will remain under suspension of travel except for those individuals who qualify for the bona fide “close family” exemption. “Close family” is defined as a parent, including parent-in-law, spouse, fiancé, child, adult son or daughter, son-in-law, daughter-in-law, sibling, brother-in-law, sister-in-law, grandparent, grandchild, aunt, uncle, niece, nephew, and first-cousin. For all relationships, half or step status is included (e.g., “half-brother” or “step-sister”). “Close family” does not include any other “extended” family members. A credible claim of a bona fide relationship with a “U.S. entity” must be formal, documented, and formed in the ordinary course rather than for the purpose of evading suspension of entry under the PP. If the national does not qualify for this exemption, they may be eligible for other exceptions or waivers listed in the PP.
Nationals of Sudan As of 3:30 p.m. EDT on Sunday, September 24, 2017, Sudanese nationals are no longer subject to travel restrictions.
Phase 2 Beginning 12:01 a.m. EDT on Wednesday, October 18, 2017
Nationals of Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen and Somalia The exceptions and waivers listed in the PP are applicable for qualified applicants, but the bona fide relationship exception is no longer applicable.

The State Department will not cancel previously scheduled visa application appointments. In accordance with all applicable court orders, executive orders, and proclamations, for nationals of the eight designated countries, a consular officer will make a determination in the course of the interview whether an applicant otherwise eligible for a visa is exempt from the P.P. or, if not, is eligible for a waiver under the PP, and may be issued a visa.

The PP provides specifically that no visas issued before its effective date will be revoked pursuant to the PP.

The State Department will keep those traveling to the United States and partners in the travel industry informed as we implement the order in a professional, organized, and timely way.

NOTE: DHS and the State Department confirmed that existing visas will NOT be revoked.
 

Dual Nationals & Green Card Holders

The Presidential Proclamation does not restrict the travel of dual nationals who are traveling on a passport from a non-designated country.

The State Department will process visa applications and issue nonimmigrant and immigrant visas to otherwise eligible visa applicants who apply with a passport from a non-designated country, even if they hold dual nationality from one of the eight restricted countries.

Lawful permanent residents or “green card” holders are also not affected by the Presidential Proclamation.

For more information, including waivers and other exceptions, please review the available links below.
 

Update:

TRAVEL BAN 3.O PARTIALLY BLOCKED!
  • On October 17, 2017, a federal judge in Hawaii just blocked President Trump’s latest travel restriction from going into effect on six predominantly Muslim countries on the list. The judge’s ruling does not affect the two recently-added countries — North Korea and Venezuela — and travel restrictions from these two countries can go into effect.
 


Posted in Updates

Remember To Start Using The New Form I-9 Beginning September 18

Beginning today, September 18, 2017, employers must use the new version of the Form I-9, Employment Eligibility Verification, with the revision date of 07/17/17 N. This new form has an expiration date of August 31, 2019.
 


Posted in Updates

Trump Ends DACA Program For DREAMERS

This article was updated.
 
As expected, Attorney General Jeff Sessions today announced the end of the DACA (Deferred Action for Childhood Arrivals) program despite widespread support in favor of the nearly 800,000 DREAMERS, who have benefitted from the program. The gradual phase out over six-months is supposed to give Congress time to consider a legislative solution.

Acting U.S. Department of Homeland Security (DHS) Secretary, Elaine Duke, said in a statement:

This Administration’s decision to terminate DACA was not taken lightly. The Department of Justice has carefully evaluated the program’s Constitutionality and determined it conflicts with our existing immigration laws. As a result of recent litigation, we were faced with two options: wind the program down in an orderly fashion that protects beneficiaries in the near-term while working with Congress to pass legislation; or allow the judiciary to potentially shut the program down completely and immediately. We chose the least disruptive option.

Accordingly, Secretary Duke issued a memo outlining the transition process. Some key points include:

  • Current DACA recipients: Previously issued EADs and grants of deferred action will remain valid for their full validity period. DHS will not terminate deferred action or revoke EADs solely on the basis of the DACA program rescission. DHS will continue to retain its authority to terminate or deny deferred action where it deems appropriate.
  • Pending initial DACA requests: Pending initial requests for DACA and related EAD applications will be adjudicated. No new initial requests for DACA and related EAD applications will be accepted after September 5, 2017.
  • Pending DACA renewals: Pending renewals will be adjudicated.
  • New DACA renewals: DACA beneficiaries expiring between September 5, 2017 and March 5, 2018 can file renewal applications. Renewals must be accepted by DHS by October 5, 2017. It is not yet known whether DHS will grant renewals for the full two-year period or a shorter period.
  • Advance parole applications: No new DACA advance parole applications will be approved. All pending advance parole applications will be administratively closed and fees will be returned.
  • Current DACA advance parole documents: Previously approved advance parole documents will generally be honored, though DHS retains the authority to deny admission and/or revoke or terminate parole where it deems appropriate.

DHS has also posted an FAQ about the rescission of DACA.
 

Update:

DHS released a “Talking Points” memo right after announcing that it would end the DACA program. Among other things in the memo:

The Department of Homeland Security urges DACA recipients to use the time remaining on their work authorizations to prepare for and arrange their departure from the United States—including proactively seeking travel documentation—or to apply for other immigration benefits for which they may be eligible.

 


Posted in Updates

USCIS Will Require In-Person Interviews For All Employment-Based Green Card Applicants

On Monday, August 28, 2017, the U.S. Citizenship and Immigration Services (USCIS) announced that it will begin to phase-in interviews for employment-based I-485 adjustment of status (green card) applications as of October 1, 2017. This change complies with Executive Order 13780, “Protecting the Nation From Foreign Terrorist Entry Into the United States.”

According to USCIS:

Conducting in-person interviews will provide USCIS officers with the opportunity to verify the information provided in an individual’s application, to discover new information that may be relevant to the adjudication process, and to determine the credibility of the individual seeking permanent residence in the United States. USCIS will meet the additional interview requirement through enhancements in training and technology as well as transitions in some aspects of case management.

Current USCIS policy, which has been in place for decades, does not require most employment-based green card applicants to undergo an in-person interview as part of the adjudication process. In fact, in 2005, USCIS issued a memo, entitled Revised Interview Waiver Criteria for Form I-485 Application to Register Permanent Residence or Adjust Status, outlining the criteria to be used in identifying cases that should be scheduled for in-person interviews. These criteria were used to eliminate the significant backlogs that existed at the time.

This change to long-standing policy will significantly impact the workload of local USCIS offices and will almost certainly result in long backlogs for employment-based I-485 adjustment of status applications.

USCIS also indicated that it is planning an incremental expansion of interviews to other benefit types.
 

IMPORTANT NOTE!
    • This policy only impacts employment-based I-485 green card applications.
    • This is the second USCIS policy revision in the span of 10 days. On August 23, 2017, Loke Walsh Immigration Law posted an update about USCIS denying I-131 travel documents for abandonment due to international travel. Both these policy revisions only apply to individuals with pending I-485 adjustment of status (green card) applications.
 

Posted in Updates

USCIS is Denying Advance Parole Applications Due to International Travel

On Tuesday, August 22, 2017, we sent this travel advisory, which affects individuals with pending I-485 adjustment of status application.

The American Immigration Lawyers Association (AILA) has received numerous reports that the U.S. Citizenship and Immigration Services (USCIS) has been denying Form I-131 advance parole applications (the travel portion of the combo card) for abandonment in instances where the applicant has traveled abroad while the application is pending. The pending Form I-131 application is being denied even if the applicant has a separate valid advance parole document or a valid H, K, L, or V visa to return to the United States. In the denial notification, USCIS points to the Form I-131 instructions at page 6 where it states that “[i]f you depart the United States before the Advance Parole Document is issued, your application for an Advance Parole Document will be considered abandoned.” This is a significant departure from previous USCIS policy (for at least the last 15 years) where it has approved advance parole applications for individuals who travel abroad with a valid Advance Parole Document or a valid H, K, L, or V visa, while the I-485 application is pending.

AILA contacted the USCIS Service Center Operations Directorate (SCOPS) to determine if this change of policy was intentional. SCOPS recently responded that the denials were proper; the policy is that traveling internationally while an application for advance parole is pending will result in the denial of that application notwithstanding prior practice to the contrary. AILA is continuing to pursue this issue in liaison discussions with USCIS. In the meantime, it appears that advance parole applications will continue to be denied if an individual travels abroad while the application is pending with USCIS.

Based on these reports, it is not advisable for anyone with a pending I-485 application to travel internationally while an advance parole application is pending. If an I-131 application is denied, it is possible to submit a new application. Applicants with valid combo cards (combined work permit and travel document) may continue to travel using their combo cards.

Posted in Updates

U.S. to Suspend All Nonimmigrant Visa Operations Across Russia

U.S. Mission to Russia Statement:

Russia’s decision to reduce the United States’ diplomatic presence here calls into question Russia’s seriousness about pursuing better relations. We will maintain sufficient staff to carry out essential elements of our mission.

Due to the Russian government-imposed cap on U.S. diplomatic personnel in Russia, all nonimmigrant visa operations across Russia will be suspended on August 23. Operations will resume in Moscow on September 1; visa operations at the U.S. consulates will remain suspended indefinitely. Currently scheduled appointments will be cancelled and applicants will be provided instructions on how to reschedule.


Fact Sheet

Posted in Updates

Supreme Court Reinstates Parts of President Trump’s “Travel Ban”

On Monday, June 26th, the Supreme Court allowed limited parts of President Trump’s “travel ban” to go into effect. The provision banning travelers from six countries – Libya, Iran, Somalia, Sudan, Syria and Yemen – will take effect with an exception for those who have a “credible claim of a bona fide relationship with a person or entity in the United States.” Examples of those with a “bona fide” relationship include students at US universities or employees of US companies or those visiting or living with a family member. The 120 day ban on admission of refugees will also take effect.

The Supreme Court will hear oral arguments on the case in October. However, even the court indicated that circumstances may change dramatically by October. “Travel Ban 2.0” is supposed to be temporary for 90 days while the government reviews its vetting procedures – as such, the issue may be moot by October.

The Department of Homeland Security is currently consulting with the Departments of Justice and State and will provide additional details on implementation shortly. According to DHS, the implementation of the Executive Order “will be done professionally, with clear and sufficient public notice, particularly to potentially affected travelers, and in coordination with partners in the travel industry.”

As a practical matter, the interpretation of a “bona fide relationship with a US person or entity will be incredibly subjective and is likely to result in inconsistent interpretations and unpredictability for impacted individuals.
 


Posted in Updates

June 2017 Visa Bulletin: Cut-Off Dates & Retrogression

EB-1 China & EB-1 India Cut-Off Dates

The U.S. Department of State (DOS) released the visa bulletin for June 2017, which imposes a final action date of January 1, 2012 for both EB-1 China and EB-1 India, which together have already used almost half of the entire EB-1 Worldwide limit for this fiscal year. The purpose of imposing of final action dates for these categories is to control number use under the EB-1 Worldwide annual limit, and to allow numbers to remain available for all other countries. A similar action was taken last fiscal year, where the August 2016 visa bulletin imposed a final action date of January 1, 2010 for both EB-1 China and EB-1 India. Both EB-1 China and EB-1 become “current” once again in October 2016 under the FY 2017 annual limits. Similarly, it is hoped that the final action date for EB-1 China and EB-1 India will return to current on October 1, 2017.
 

Upcoming EB-2 Worldwide Retrogression

Due to sustained high demand for the EB-2 category, it is also anticipated that a final action cut-off date will be imposed on EB-2 worldwide in the next coming months. The cut-off date is not yet predicted at this point. It will be determined based upon the remaining numbers and the monthly demand trend. We are hopeful that this period of retrogression will be brief, and that the category will become current again on October 1, 2017.

Posted in Updates