In what seems to be a continuing effort to limit legal immigration, DHS issued a final rule that reinterprets “public charge” as a ground of inadmissibility. The new interpretation is scheduled to take effect October 15, 2019, but has already been challenged in several federal courts, which may delay the effective date.
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, or if already pending, when the final step can be adjudicated.
Below is a summary of the September Visa Bulletin, including Final Action Dates and changes from the previous month.
- China: EB-1 retrogresses more than two years to January 1, 2014; EB-2 stalls at January 1, 2017; and EB-3 falls back more than two years to January 1, 2014
- India: EB-1 becomes unavailable for the first time ever (excluding the aftermath of the visa fiasco of August 2007); EB-2 creeps forward six days to May 8, 2009; and EB-3 falls back six months to July 1, 2005
- All Other Countries (including the Philippines): EB-1 remains backlogged, but advances over one year to October 1, 2017; EB-2 moves forward one year to January 1, 2018; and EB-3 stalls at July 1, 2016
USCIS Acting Director Ken Cuccinelli announced today, via Twitter, that USCIS will close all but seven of its international field offices, leaving only the offices in Beijing, Guanghzou, Guatemala City, Mexico City, Nairobi, New Delhi and San Salvador to service the many US citizens and permanent residents who reside abroad. USCIS has also made the official announcement on their website. The decision leaves the entire continents of South America and Europe without a USCIS office. Although not ideal, this announcement still marks a welcome change from USCIS’s prior announcement, in March 2019, by then-Director Francis Cissna that all twenty international offices would be closed and their workload shifted to domestic offices.
On Tuesday, July 30, 2019, the U.S. Department of Justice (DOJ) announced a settlement agreement with United General Bakery, Inc. based in Phoenix, Arizona. The agreement resolved a DOJ investigation into whether the company discriminated against authorized workers based on their citizenship status when verifying their work authorization in violation of the Immigration and Nationality Act (INA).
In 1985, near the village of Schengen in Luxembourg, five European countries signed an agreement to gradually eliminate border controls between their countries. Since then, the Schengen agreement has become the basis for the elimination of border controls between 26 European countries facilitating the flow of people and goods throughout Europe. Visitors are subject to immigration inspection when entering the Schengen area, but not when traveling between Schengen states.
Even though the United States ended the compulsory military draft on January 27, 1973, it maintains a database of eligible men used to provide “trained and untrained manpower to the Department of Defense in a national emergency.” The agency that manages this database, the “Selective Service System”, is alive and well, as is the requirement to register.
Who must register?
Current law requires that all male US citizens who are 18-25 register with the Selective Service. But did you know that non-citizens must register as well? With a few exemptions, the following males who are 18-25 must register:
- US born citizens (including dual nationals)
- Naturalized citizens
- Lawful permanent residents (“green card” holders)
- Asylum seekers
- Undocumented immigrants who entered without inspection
- All males with visas of any kind that have expired more than 30 days ago
Those who would claim that they are “conscientious objectors” if drafted also must register, but can file for the exemption from military service if drafted, as too must disabled men living at home, even if their disabilities would exempt them from military service. Those hospitalized, incarcerated, or in a nursing/mental/rehab institution must register within 30 days of being discharged.
Who is exempt?
There are a few categories of individuals exempt from Selective Service registration:
- Nonimmigrants who are maintaining valid nonimmigrant status (such as H-1B, H-2A, L-1, F-1, etc)
- Members of the armed forces on active duty
- Cadets and midshipman at Service Academies or the Coast Guard Academy
- Students in Officer Procurement Programs at certain educational institutions
- Transgender men who were assigned female at birth and have corrected their gender to male (transgender women assigned male at birth must register, however)
Selective Service and applying for permanent residence
Foreign nationals applying for permanent residence in the United States using Form I-485 must sign a declaration that they understand that submitting the application will automatically register them in the Selective Service if they are 18 to 25 (the form actually says “26”, but the law requires registration up to, but not including, the 26th birthday). Those filing this form who are younger than 18 when granted lawful permanent resident status are not automatically registered, but must do so when they turn 18. Those issued immigrant visas at a US consulate are not automatically registered, but must do so within 30 days of arriving in the United States if they fall between the required ages.
Selective Service and applying for naturalization
Lawful permanent residents who qualify to become US citizens through naturalization can file Form N-400, which asks “Are you a male who lived in the United States at any time between your 18th and 26th birthdays?”. If you answer “yes”, you are required to list the date you registered and the registration number assigned. However, if you answer “yes” but did not register, the form says
- you must register if under 26 before filing the application (so that you can complete the registration date and number section) or
- if between 26 and 31 (or 29 if filing under INA 319(a) as the spouse of a US citizen), you must attach a statement explaining why you did not register and provide a status information letter from the Selective Service (instructions to do so can be found here).
Selective Service registration goes to a person’s good moral character, which is a key requirement for naturalization. While failure to have registered when required is not an automatic bar to naturalization, it is an issue that requires legal advice before filing for naturalization.
Are you frustrated with the increasing level of documentation required to support employment-based immigration filings? You are not alone.
Gone are the days when a company letter and organizational chart were enough to support an L-1A manager case or just quoting the Occupational Outlook Handbook was enough to demonstrate specialty occupation status for an H-1B petition. US Citizenship and Immigration Services (USCIS) now requires pages and pages of supporting evidence for all employment-based filings, including I-129 nonimmigrant petitions for L-1 or H-1B status and I-140 immigrant petitions for multinational executives and managers. Immigration law firms, scrambling to keep up with the government’s ever-changing adjudications standards, increasingly turn to clients’ HR contacts and employees with requests for voluminous amounts of initial and additional evidence.
Below are answers to some frequently asked questions our firm has received regarding this issue:
My friend’s case was approved without extensive documentation. Why do I need to provide it?
Does your friend work for the same employer? In the same position? Does your friend have the same education as you? Each case is different. Each requires a different strategy and therefore, different amounts and types of documentation. USCIS scrutinizes certain occupations and industries more closely than others. Smaller companies also endure more scrutiny, but even large multinational companies are not immune to the government’s whims. In fact, those whims illustrate the last reason your friend’s case could have been approved with minimal documentation — luck. Despite the government’s recent efforts to standardize adjudications across officers and service centers, huge discrepancies still exist in outcomes. Strong cases are denied and weak cases are approved, for no apparent reason other than a single officer’s discretion.
We filed the initial petition three years ago, and it was approved without documentation. Why do we need to provide it now? Have the laws changed?
While immigration laws and regulations have not significantly changed, the agency’s adjudications policies and procedures have. USCIS no longer accepts as fact statements made by a petitioning employer in company support letters. All such statements must be backed up by documentary evidence.
The original petition was filed with extensive documentation. Why did USCIS issue a Request for Evidence asking for even more documents? Did USCIS lose my documents?
Possibly, but some occupations will almost always receive an RFE no matter what is submitted up front. While we are aware of no reliable evidence that USCIS officers have an RFE quota, there is much speculation that they do. We do know that the Trump administration is concerned by the generally high approval rate for immigration cases and is using the “Buy American, Hire American” executive order to scrutinize petitions through increased RFEs in order to decrease legal immigration. In addition, in cases filed using the USCIS 15-day premium processing service, RFEs may be issued on the 13th or 14th day to give officers more time to process their caseloads.
What if we do not provide any documents? Will the case still be approved?
Possibly, but why take the chance? When cases are denied, there can be severe consequences for nonimmigrant workers and any family members dependent on their immigration status. Denials jeopardize the ability to legally remain and work in the United States. Like RFE rates, denial rates have also increased considerably in recent years, mainly due to a new USCIS policy to outright deny cases for lacking initial evidence at the time of filing.
Why do I need to provide the documentation? Can’t the paralegal/attorney gather it for me?
We gather as much as we can, but we are not familiar with every occupation. Employees, their hiring managers, and their companies are the ones who know best what the job involves on a daily basis and what education and experience are required to perform those duties.
The next time your immigration lawyer or paralegal sends a lengthy email requesting clarification of duties or additional evidence to back up a case, know that they are not being difficult. They simply want to do everything possible to ensure that the case will be approved.
If you have specific questions about your case, please contact an immigration lawyer.
Since mid-June, the White House has been promising massive U.S. Immigration and Customs Enforcement (ICE) coordinated immigration raids around the country. The goal: arrest and quickly remove approximately 2,000 recently arrived individuals with deportation orders. This, according to the White House, would serve as a deterrent to others seeking to enter the U.S. unlawfully. The raids were expected to begin in earnest on Sunday July 14, 2019.
That date has come and gone, without the expected nationwide show of force. There were no large-scale raids with weapons drawn, no helicopters, and no associated big media splash. Various media outlets reported on small-scale ICE enforcement actions and a small number of arrests.
Despite the lack of large-scale enforcement operations, the political and media attention escalated fear among immigrants and in their communities. Scare tactics, whether intended or not, were successful in this measure; however, immigration rights advocacy groups helped counterbalance the fear by educating immigrants on how to handle encounters with ICE.
Enforcement actions are part of ICE’s mission as the immigration law enforcement component of the Department of Homeland Security. This past weekend was simply business as usual for ICE. Small-scale raids will likely continue throughout the week, but, for the same reasons the raids were delayed (logistical hurdles, safety concerns, political pressures, etc.) we are unlikely to see raids on the scale of what was promised.
Ongoing worksite enforcement – part of the smoldering fire behind all the rhetorical smoke?
While the current hot topic is the threatened raids to arrest and remove individuals, employers should not lose focus on the continued rise in worksite enforcement actions. Worksite investigations, I-9 audits, and criminal and administrative workplace arrests all surged by 300 to 750 percent in FY2018 over the previous year. These actions, for the most part, do not draw a lot of media attention (or tweets) but can cost employers millions of dollars in fines and penalties.
In the coming months and years, ICE will continue to focus on worksite enforcement activities. No business is immune and ICE continues to expand its worksite enforcement effort beyond industries that traditionally rely on low-skilled foreign workers to include those that have not previously been investigated or only have a handful of foreign workers.
The media storm over this round of ICE enforcement will blow over, the media will move on, but companies need to remain vigilant.
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 August Visa Bulletin, including Final Action Dates and changes from the previous month.
- China: EB-1 retrogresses to July 1, 2016; EB-2 advances two months to January 1, 2017; and EB-3 moves forward six months to July 1, 2016
- India: EB-1 remains stalled at January 1, 2015; EB-2 crawls ahead eight days to May 2, 2009; and EB-3 falls back more than three years to January 1, 2006
- Philippines: EB-1 recedes two years to July 1, 2016; EB-2 retrogresses to January 1, 2017; and EB-3 reverts back to July 1, 2016
- All Other Countries: EB-1 retrogresses two years to July 1, 2016; EB-2 falls back to January 1, 2017; and EB-3 retrogresses to July 1, 2016
NOTE 1: The August Visa Bulletin includes a veiled warning that dates for the All Other Countries group will not immediately return to current in October.
NOTE 2: USCIS has not yet announced if they will accept I-485 applications in August based on the Department of State’s Dates for Filing chart.