In a closely watched asylum appeal, Attorney General Jeff Sessions has issued a decision that will adversely affect the ability of victims of domestic and gang violence to find protection in the United States.

Matter of A-B- was originally decided, in December 2016, in favor of the asylum seeker by the Board of Immigration Appeals.  The BIA is an administrative branch of the US Department of Justice.  It accepts appeals, filed by either government attorneys or immigrants, of decisions made by civil immigration courts throughout the country.

In late 2016, the BIA overturned the 2015 denial of A-B-‘s asylum claim by a judge in Charlotte, North Carolina, where asylum was denied at a rate of 72 to 84.5 per cent between 2011 and 2016.  Finding the denial was “clearly erreoneous,” the BIA said A-B- had proven she was persecuted based on membership in a “particular social group”; specifically, “El Salvadoran women who are unable to leave their domestic relationships where they have children in common.”

In March 2018, Sessions referred the BIA’s decision to himself – a controversial practice that gives a political appointee, and the head of a law enforcement agency, absolute power to overturn the decision of an independent and neutral tribunal of administrative judges.  Sessions’s decision yesterday, which comes as a surprise to no one, vacates the BIA’s grant of asylum as “wrongly decided” and says:  “The mere fact that a country may have problems effectively policing certain crimes—such as domestic violence or gang violence—or that certain populations are more likely to be victims of crime, cannot itself establish an asylum claim.”

Calling it “an affront to the rule of law,” a group of 15 former immigration and BIA judges said Sessions’s finding erased “a 15-year process through the immigration courts and BIA” to develop nuanced and reliable legal standards on the “particular social group” basis for asylum.

The Associated Press is reporting that US embassies and consulates around the globe have been instructed to limit the validity period of F-1 visas issued to Chinese graduate students studying in fields such as robotics, aviation and high-tech manufacturing. The new policy requires that visas issued to such students are only valid for one year, where Chinese students are normally issued visas valid for up to five years. The policy is reportedly taking effect on June 11, 2018. There are more than 300,000 Chinese citizens studying in the United States – nearly one-third of all international students.

According to the report, the policy also requires that some Chinese employees of certain US companies will also be subject to special clearances resulting in visa processing delays of up to several months. The US Department of Commerce maintains the list of targeted companies, which is not available to the public.

Who is affected and what should they do?

This policy affects Chinese citizens who are applying for visas at US embassies and consulates – specifically, graduate students in certain fields, and some employees of companies that have been targeted for scrutiny by the US Department of Commerce. In addition, any Chinese citizen applying for a visa, who studies or works in a field that the US government might consider sensitive to national security or the economy, should be attentive to this policy and its possible expansion in the coming months. These individuals may want to stay in close contact with their school or employer to discuss their concerns and plan accordingly.

Hunton Andrews Kurth typically does not post about topics that are not officially announced, and it is important to note that this information is based on a single news report by the Associated Press. We will continue to monitor this issue and share relevant and credible information as it becomes available.

On May 18, 2018, after receiving a notice from the Government of Ecuador terminating that country’s bilateral investment treaty with the United States, the U.S. Department of State’s Office of Trade Representative announced the termination in the Federal Register.  The treaty has been in force since 1997.

Continue Reading Termination of U.S.-Ecuador Bilateral Investment Treaty Affects E-2 Visa Eligibility for Ecuadorean Nationals

The Department of Homeland Security (DHS) announced that because the conditions in Nepal no longer support its designation for Temporary Protected Status (TPS), the designation set to expire on July 24, 2018, will now terminate on June 24, 2019.  TPS allows qualifying persons inside the United States to remain and work lawfully in the United States until conditions in their home countries improve following civil war, natural disaster or similar extraordinary situations.  The final year of designation gives those unable to acquire another legal status time to prepare to depart the United States by the TPS termination date.

Continue Reading DHS Announces Final TPS Re-registration for Nepal

The US Citizenship and Immigration Services (USCIS) announced yesterday that it has completed the data entry for all H-1B cap petitions selected in the FY2019 lottery held in April.   Because receipts are mailed on a rolling basis as the data entry for each selected petition is completed, it is still possible that additional receipts for petitions selected in the lottery will arrive later this week.

 The USCIS will now begin the process of returning to the attorneys of record those petitions that were not selected in the lottery.  In past years, the return process lasted into July.

In a policy memorandum dated May 10, 2018, the United States Citizenship and Immigration and Services (“USCIS”) provided new guidance to its officers and adjudicators on calculating unlawful presence for nonimmigrants in F, M, and J status. This policy memorandum, which becomes effective on August 9, 2018, represents a dramatic shift in long-standing USCIS policy.

The date unlawful status begins to accrue is extremely important as this date is a linchpin in determining when the 3-year and 10-year bars of reentry may apply.  Generally, unlawful status for more than 180 days, but less than 1 year, triggers a 3 year bar of reentry, while unlawful status for more than 1 year triggers a 10 year bar. Waivers of the bars may be available if certain requirements are met, including in some cases extreme hardship to a U.S. or permanent resident spouse or parent.

The new policy specifies that F, M, or J nonimmigrants who failed to maintain their status (for example by no longer pursuing a full-course of study, no longer engaging in an approved training program or activity, or engaging in unauthorized employment) before August 9, 2018, will start accruing unlawful status on August 9, 2018, unless the nonimmigrant already starting accruing unlawful status on the earliest of the following:

  • The day after a Department of Homeland Security (DHS) denial of an immigration benefit, if DHS determines that the nonimmigrant violated his or her nonimmigrant status while adjudicating that immigration benefit;
  • The day after the nonimmigrant’s Form I-94 expires, if the F, M, J nonimmigrant was admitted until a certain date; or
  • The day after an immigration judge or the Board of Immigration Appeals ordered the nonimmigrant excluded, deported, or removed (whether or not the decision is appealed).

F, M, or J nonimmigrants who fail to maintain their nonimmigrant status on or after August 9, 2018, begin accruing unlawful presence on the earliest of the following:

  • The day after the F, J, or M nonimmigrant no longer pursues the course of study or the authorized activity, or the day after he or she engages in an unauthorized activity;
  • The day after completing the course of study or program (including any authorized practical training plus any authorized grace period);
  • The day after Form I-94 expires, if the F, J, or M nonimmigrant was admitted for a date certain; or
  • The day after an immigration judge or the Board of Immigration Appeals orders the alien excluded, deported, or removed (whether or not the decision is appealed).

The new policy is a dramatic change in how USCIS previously calculated unlawful presence.  Under the prior policy, unlawful presence for those in admitted F, M,  or J status for the duration of their status (D/S) started accruing only on the day after:

  • USCIS formally found a nonimmigrant status violation while adjudicating a request for another immigration benefit; or
  • An immigration judge ordered the applicant excluded, deported, or removed (whether or not the decision is appealed), whichever came first.

F, M, or J nonimmigrants who were admitted until a specific date, instead of D/S, accrued unlawful presence only on the day after:

  • Their Form I-94 expired;
  • USCIS formally found a nonimmigrant status violation while adjudicating a request for another immigration benefit; or
  • An immigration judge ordered the applicant excluded, deported, or removed (whether or not the decision was appealed), whichever came first.

This new policy also affects the immigration status of dependent family members as the validity of their status is dependent on the principal maintaining his or her status.

To review the text of USCIS’ new policy memorandum, please click here.

The Visa Bulletin is released monthly by the Department of State and is used to determine when a sponsored foreign national can submit the final step of the green card process. The complete visa bulletin can be found here.

Below is a summary of the June Visa Bulletin, including Final Action Dates and changes from the previous month:

  • China: EB-1 holds steady at January 1, 2012, EB-2 stalls at September 1, 2014, and EB-3 remains June 1, 2015
  • India: EB-1 remains backlogged to January 1, 2012, EB-2 creeps ahead four days to December 26, 2008, and EB-3 remains May 1, 2008
  • Philippines: EB-2 remains current, while EB-3 remains January 1, 2017
  • All Other Countries: All EB categories are current

NOTE: USCIS has not yet announced if it will accept I-485 applications in June based on the Department of State’s Dates for Filing chart. However, the trend over the last several months has been to NOT honor the Dates for Filing chart, and instead only accept I-485 applications based on the Final Action Dates as listed above.

The Department of Homeland Security (DHS) announced that because the conditions in Honduras no longer support its designation for Temporary Protected Status (TPS), the designation set to expire on July 15, 2018, will terminate on January 5, 2020.  This conclusion is at odds with the State Department travel advisory, which says that travelers should reconsider travel to Honduras due to violent crime (murder, assault, rape, armed robbery, gang activity, etc.).  The travel advisory can be found here.

TPS allows qualifying persons inside the United States to remain and work lawfully until conditions in their home countries improve following civil war, natural disaster or similar extraordinary situations.  The final period of designation gives those unable to acquire another legal status time to prepare to depart the United States by the TPS termination date.

DHS has not yet provided details for nationals of Honduras holding TPS status to re-register to extend their status through the designation end date of January 5, 2020.   When those instructions are issued, the employment authorization documents held by qualifying individuals already set to expire on July 15, 2018, will likely be automatically extended for six months, providing applicants time to apply for new employment authorization documents valid through the termination date.

The United States Citizenship and Immigration Services (“USCIS”) has reported receiving 190,098 cap subject H-1B petitions during the first five business days of April 2018, more than twice the number mandated by Congress’ cap of 65,000 under the regular H-1B cap and 20,000 under the advanced degree cap for each fiscal year.

On April 11, USCIS completed a computer generated and random lottery to select the 20,000 advanced degree cap petitions it will process for the 2019 fiscal year. Those not selected in this lottery, were included in a second lottery conducted to select the 65,000 regular H-1B cap petitions that USCIS will process.

We expect to start receiving H-1B receipt notices for petitions selected in the lottery within the next two weeks and that they will continue to trickle in through the month of June, as in previous years.

The Visa Bulletin is released monthly by the Department of State and is used to determine when a sponsored foreign national can submit the final step of the green card process. The complete visa bulletin can be found here.

Below is a summary of the May Visa Bulletin, including Final Action Dates and changes from the previous month:

  • China: EB-1 remains backlogged to January 1, 2012, EB-2 creeps forward one month to September 1, 2014, and EB-3 freezes at June 1, 2015
  • India: EB-1 remains backlogged to January 1, 2012, EB-2 remains at December 22, 2008, and EB-3 advances three months to May 1, 2008
  • Philippines: EB-2 remains current, while EB-3 stalls at January 1,2017
  • All Other Countries: All EB categories are current

NOTE: USCIS has not yet announced if it will accept I-485 applications in May based on the Department of State’s Dates for Filing chart. However, the trend over the last several months has been to NOT honor the Dates for Filing chart, and instead only accept I-485 applications based on the Final Action Dates as listed above.