On December 15, 2017, the USCIS (DHS) announced that it would implement enhanced security measures for the Visa Waiver Program as part of the administration’s ongoing counterterrorism efforts.

The Visa Waiver Program allows certain citizens of 38 countries to travel to the United States for tourism or business purposes for up to 90 days without a visa. Visa Waiver Program countries include many European countries, Australia, New Zealand, South Korea, Singapore, and Japan. To be eligible for the Visa Waiver Program, a foreign national from one of the 38 designated countries must meet the following general requirements:

• possess an e-Passport (i.e., an enhanced secure passport with an embedded chip containing the individual’s biographic information);
• have applied for and received advance authorization through DHS’s Electronic System for Travel Authorization (ESTA) prior to travel;
• have not traveled to or been present in Iran, Iraq, Libya, Somalia, Sudan, Syria, or Yemen on or after March 1, 2011 (with limited diplomatic or military exceptions); and
• not be a dual national of a Visa Waiver Program country and Iran, Iraq, Sudan, or Syria.

The new restrictions on a Visa Waiver Program 12/15/2017: no implementation timeline was announced yet.

(1) Visa Waiver Program countries must begin utilizing U.S. counterterrorism information to screen all travelers entering those countries from elsewhere.

(2) Airports in eligible countries must also utilize the same U.S. data to screen their own employees as a means of safeguarding the United States against threats by foreign airport workers.

(3) DHS will focus on limiting the number of Visa Wavier Program travelers who overstay their maximum-allowed 90-day admission period. DHS will attempt to force countries with overstay rates of 2 percent or greater to conduct public awareness campaigns for their citizens, to educate them not to overstay, not to work without a work authorization, and about the penalties (unable to change status, adjust status, ban on future travel to USA). According to DHS data for FY 2016, only four countries out of 38 Visa Waiver countries currently meet the 2 percent threshold: Hungary, Greece, Portugal, and San Marino.

On December 22, 2017, USCIS announced that due to staff reductions at the U.S. Embassy in Havana, Cuba, USCIS will temporarily suspend operations at its field office in Havana, effective immediately.

During this time, the USCIS field office in Mexico City, Mexico, will assume Havana, Cuba jurisdiction.

Cuban Family Reunification Parole (CFRP) Program - remains in place, and USCIS is working with the U.S. Department of State to ensure that the CFRP Program continues to operate and will announce arrangements for interview/travel document processing for CFRP beneficiaries soon.

More information is here.

Cuban Medical Professional Parole (CMPP) Following-to-Join Spouse or Child - remains in place (agreement signed by the previous Administration on January 12, 2017), and USCIS is working with the U.S. Department of State to ensure that CMPP following-to-join cases continue for spouses and children to be processed and will announce arrangements for interview/travel document processing soon.

​More information is here.

General information about the U.S. Embassy in Havana, Cuba is available on the embassy website. You may also contact the embassy by calling 011(53)(7)839-4100 or by mailing to: 
U.S. Embassy Havana, Calzada between L & M, Vedado Havana, Cuba.

For emergency inquiries, you can continue contacting the USCIS Havana Field Office at [email protected]. For any other information on the services we provide, please contact the USCIS field office in Mexico City.

Before making international travel plans, foreign nationals (with the exception of Canadians) must have a valid visa in their passports (preferably multiple-entry) to re-enter the United States. People who did not previously obtain a visa in connection with their current nonimmigrant status (had "change of status"), or whose visa has expired, will need to apply for an appropriate visa at the U.S. Consulate in their home country (and may need to submit a visa application and schedule a visa appointment before they depart the USA). The only exception is for visits to Mexico or Canada for less than 30 days under the visa revalidation rule. People traveling internationally must also have a valid and unexpired passport (or other travel document).
​
U.S. Consulates' visa processing procedures and times vary. Visa applicants should check the website of the Consulate where they plan to apply for their visa to obtain the most accurate information. Due to the increased security and mandatory interviews at most Consulates, visa issuance processing times are unpredictable and could be delayed.

Please visit the U.S. Department of State for information regarding current visa appointment and processing wait times for each Consulate. We recommend a minimum of three to four weeks for the visa process.
Foreign nationals in the United States, who have a pending “change of status” or "extension of status" petition (from one nonimmigrant classification to another, or extension of the status in the same visa category) must remain in the United States until adjudication on their petition is complete. Foreign nationals who travel abroad while an application for change of nonimmigrant status is pending are considered to have abandoned their change of status portion of the petition.

Similarly, a pending advance parole application could be deemed abandoned and denied under recent policy changes. Please keep this in mind because in the past the situation was very different.

Foreign national employees should inform their U.S. employers regarding their plans to travel outside of the United States, and provide their departure and return dates and the countries to which they plan to travel. If possible, employers should provide employees with an employment verification letter that confirms the employee’s continued/current employment based on an approved nonimmigrant visa petition. This letter should be provided before employees depart the United States.

It is important to remember that the I-94 record expiration date governs the foreign national employee’s period of authorized stay in the United States. If an employee’s passport expires before the end date of the work authorization, status may be limited to the expiration date of the passport. If that occurs, the employee will need to renew the passport and travel outside of the country with a valid visa (prior to the expiration date noted on the I-94 record) to obtain a new I-94 record for the full period of stay authorized by the I-797 approval notice. Upon re-entry to the U.S., employees should obtain a copy of their admission record at the U.S. Customs and Border Protection site to ensure the entry information is correct.
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Finally, the U.S. Supreme Court has ruled that President's third travel ban, impacting eight countries, is to be fully enforced, effective December 8 2017, while legal challenges in lower courts are pending. While this ban exempts certain individuals, caution should be taken by nationals of the following countries before traveling: Syria, Libya, Iran, Yemen, Chad, Somalia, North Korea and Venezuela.

​On December 4, 2017, the U.S. Supreme Court granted the government’s motions for emergency stays of preliminary injunctions issued by U.S. District Courts in the Districts of Hawaii and Maryland. The preliminary injunctions had prohibited the government from fully enforcing or implementing the entry restrictions of Presidential Proclamation 9645 (P.P.) titled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or other Public-Safety Threats” to nationals of six countries: Chad, Iran, Libya, Syria, Yemen, and Somalia. Per the Supreme Court’s orders, those restrictions will be implemented fully, in accordance with the Presidential Proclamation, around the world, beginning December 8 at open of business, local time.

The District Court injunctions did not affect implementation of entry restrictions against nationals from North Korea and Venezuela. Those individuals remain subject to the restrictions and limitations listed in the Presidential Proclamation, which went into effect at 12:01 a.m. eastern time on Wednesday, October 18, 2017, with respect to nationals of those countries.

US Dept of State: travel ban CHART.

.".. We will not cancel previously scheduled visa application appointments. In accordance with the Presidential Proclamation, for nationals of the eight designated countries, a consular officer will make a determination whether an applicant otherwise eligible for a visa is exempt from the Proclamation or, if not, may be eligible for a waiver under the Proclamation and therefore issued a visa.

No visas will be revoked pursuant to the Proclamation. Individuals subject to the Proclamation who possess a valid visa or valid travel document generally will be permitted to travel to the United States, irrespective of when the visa was issued". 

Questions and Answers:

Q: I am currently working on my case with NVC.  Can I continue?Yes.  You should continue to pay fees, complete your Form DS-260 immigrant visa applications, and submit your financial and civil supporting documents to NVC.  NVC will continue reviewing cases and scheduling visa interviews overseas.  During the interview, a consular officer will carefully review the case to determine whether the applicant is affected by the Proclamation and, if so, whether the case qualifies for an exception or may qualify for a waiver.

Q: What immigrant visa classes are subject to the Proclamation?
All immigrant visa classifications for nationals of Chad, Iran, Libya, North Korea, Syria, Yemen, and Somalia are subject to the Proclamation and restricted.  All immigrant visa classifications for nationals of Venezuela are unrestricted.  An individual who wishes to apply for an immigrant visa should apply for a visa and disclose during the visa interview any information that might demonstrate that he or she is eligible for an exception or waiver per the Proclamation.  A consular officer will carefully review each case to determine whether the applicant is affected by the Proclamation and, if so, whether the case qualifies for an exception or a waiver.

Q: ​Are there special rules for permanent residents of Canada?
Waivers may not be granted categorically to any group of nationals of the eight countries who are subject to visa restrictions pursuant to the Proclamation, but waivers may be appropriate in individual circumstances, on a case-by-case basis.  The Proclamation lists several circumstances in which case-by-case waivers may be appropriate.  That list includes foreign nationals who are Canadian permanent residents who apply for visas at a U.S. consular section in Canada.  Canadian permanent residents should bring proof of their status to a consular officer.
A consular officer will carefully review each case to determine whether the applicant is affected by the Proclamation during each phase of the implementation and, if so, whether the applicant qualifies for an exception or a waiver.

Q: I received my Diversity Visa (visa through the annual Green Card Lottery) but I haven’t yet entered the United States. Can I still travel there using my Diversity Visa?
The Proclamation provides specifically that no visas issued before the effective date of the Proclamation will be revoked pursuant to the Proclamation, and it does not apply to nationals of affected countries who have valid visas on the date it becomes effective. 

Q: I recently had my Diversity Visa interview at a U.S. embassy or consulate overseas, but my case is still being considered.  What will happen now?
If your visa application was refused under Section 221(g) pending updated supporting documents or administrative processing, please provide the requested information.  The U.S. embassy or consulate where you were interviewed will contact you with more information.

Q: Will my case move to the back of the line for an appointment?
No.  KCC schedules appointments by Lottery Rank Number.  When KCC is able to schedule your visa interview, you will receive an appointment before cases with higher Lottery Rank Numbers.

Q: I am currently working on my case with KCC.  Can I continue?
Yes.  You should continue to complete your Form DS-260 immigrant visa application.  KCC will continue reviewing cases and can qualify your case for an appointment.  You will be notified about the scheduling of a visa interview.

Q: What if my spouse or child is a national of one of the countries listed, but I am not?
KCC will continue to schedule new DV interview appointments for nationals of the affected countries.  A national of any of those countries applying as a principal or derivative DV applicant should disclose during the visa interview any information that might qualify the individual for a waiver/exception.  Note that DV 2018 visas, including derivative visas, can only be issued during the program year, which ends September 30, 2018, and only if visa numbers remain available.  There is no guarantee a visa will be available in the future for your derivative spouse or child.
  
Q: What if I am a dual national or permanent resident of Canada?
This Proclamation does not restrict the travel of dual nationals, so long as they are traveling on the passport of a non-designated country.  You may apply for a DV using the passport of a non-designated country even if you selected the nationality of a designated country when you entered the lottery.  Also, permanent residents of Canada applying for DVs in Montreal may be eligible for a waiver per the Proclamation, but will be considered on a case-by-case basis.  If you believe one of these exceptions, or a waiver included in the Proclamation, applies to you and your otherwise current DV case has not been scheduled for interview, contact the U.S. embassy or consulate where your interview will take place/KCC at [email protected].

On August 28, 2017, USCIS had announced a new policy (effective date 10/02/2017) requiring all adjustment of status applicants seeking employment-based green cards to appear for an interview at a USCIS field office. The adjustment of status application is the final step in the green card process for foreign non-immigrant employees looking to move to permanent resident status.

Prior to this change, which went into effect on October 2, 2017, USCIS required interviews in only 5 to 10 percent of all employment-based adjustment cases.

The new policy applies to all Form I-485 adjustment of status applications filed on or after March 6, 2017, where the underlying immigrant petition is an employment-based Form I-140 (EB-1, EB-2, and EB-3). The USCIS has indicated that adjustment cases filed prior to March 6, 2017, will be adjudicated in accordance with previous procedures.

Because thousands of extra interviews will be conducted annually, there will be additional delays in the processing of these employment-based adjustment applications. USCIS has estimated that these applications will ultimately account for approximately 17 percent of the USCIS’s entire field operations workload. As a result, the change will impact the processing times for all other types of USCIS filings, such as family-based adjustment applications and naturalization cases.

What Should the Applicant Expect at the Interview? (based on the stats for October-November 2017)
The applicant could be asked about almost anything. 

• Any information provided on the Form I-485 (review the copy of the form I-485, and be prepared to answer questions).
• Issues relating to the applicant’s eligibility or admissibility, such as any arrests or misrepresentations made to an immigration officer (talk to your attorney if you ever had a DUI, arrests, domestic violence protection order filed against you, charges that were later dismissed, convictions, lied on the application, worked without authorization, etc).
• The applicant’s entire immigration history, particularly whether the applicant has properly maintained his non-immigrant status (if you worked without authorization while in a student status, etc)
• Family members applying as derivative to the employment-based principal applicant should anticipate questions about their relationship to the principal and the bona fides of that relationship (similar to a family-based green card interview).

If the field officer conducting the interview is not satisfied with an applicant’s answers and believes that an applicant is not eligible for adjustment, the Form I-485 can be denied, or a RFE (request for evidence) could be sent, or NOID (notice of intent to deny) could be issued.

Will the Field Officer Re-Adjudicate the Form I-140? USCIS has said that the interviewing field officers have been instructed not to re-adjudicate the underlying Form I-140. However, the agency has also made clear that the officers will be charged with assessing the validity of the documents used to approve the Form I-140 petition to ensure that the supporting evidence was accurate and credible. If the officer determines that that evidence is not credible, he can recommend that the Form I-140 be revoked by the service center that originally issued the approval (officer can send I-140 for revocation back to USCIS Service Center which originally approved the petition).

It is important that the applicant understands the basis for the Form I-140 petition and be prepared to articulate at the interview how his employment qualified for approval. The applicant should review the Form I-140 petition and any underlying PERM application in advance and address any tricky issues with the employer or counsel. The applicant will almost certainly be questioned about the job for which he was sponsored as well as about his own educational background and work experience. This new requirement could present a challenge because I-140 is an employer's petition, and applicants don't usually have an access to the form I-140, PERM, etc. 

An attorney can prepare the applicant on what to expect during the interview, and coordinate with the employer and the applicant to make sure that the applicant takes the appropriate documentation to the interview, knows what I-140 and PERM was about, has a copy of his I-485 form, has clean criminal record and no status violations, etc. The adjustment of status interview notices that are currently being sent to applicants are generic and confusing because they include a list of the documents that do not even apply in employment-based cases. 

The Freedom of Information Act (“FOIA”) gives every person access to certain information from the federal government. A person can file a request under this act, called “a FOIA request,” to any federal agency to request documents about themselves or others. 

There are four main components within DHS that hold immigration records:

(1) U.S. Citizenship and Immigration Services (“USCIS”);
(2) U.S. Immigration and Customs Enforcement (“ICE”);
(3) U.S. Office of Biometrics Identity Management (“OBIM,” formerly US-VISIT); and
(4) U.S. Customs and Border Protection (“CBP”).

If you are making your request by mail, you should include the notation “Freedom of Information Act Request” on the front of your envelope. This will help ensure that the responsible individual receives the request without delay.

​USCIS is the most common place to submit an immigration-related FOIA request because USCIS keeps records of prior petitions and decisions and often has the Subject’s A-file. Do not submit your FOIA request to your local USCIS office, Service Center, or Lockbox. USCIS processes all FOIA requests at the National Records Center. The request can be submitted by letter request; Form G- 639 by email, mail, or fax; or by using the electronic DHS submission form.

DHS (USCIS) created an online fillable FOIA request form. This FOIA request form has a drop-down menu where the Requestor can select the component within DHS where the FOIA request should be sent. Through this online form, a Requestor can file a FOIA with USCIS, ICE, and OBIM, among others. The online form also allows the Requester to seek FOIA fee waivers and expedited service, if eligible. The online form remains unavailable for CPB FOIA requests, which must be submitted using CBP’s online form. 

The CBP form permits Requestors to upload supporting files. If you are filing a FOIA request on behalf of someone else (not your minor child), you will need to attach either a signed Form G-28 (if you are representing the Subject) or a written notarized consent that will allow a third party to access the Subject’s records. 

Form G-639 is NOT required. USCIS Form G-639 was created by DHS to make filing and processing FOIA requests easier, but it is an optional form. A FOIA request need only be in writing, state that the request is being made under FOIA, reasonably describe the records sought, and provide contact information for the Requestor. In some cases, you may not want to use Form G-639 and may choose to submit a letter request instead. 

ILRC published a helpful FOIA guidance in November 2017 here.

Where FOIA requests can be filed: direct filing addresses for different federal agencies.

USCIS created a new Form G-639 with an issue date of April 17, 2017. Make sure you are using the correct form because previous versions are no longer accepted. The form is frequently updated, so always check for the latest version of the form at http://www.uscis.gov/g-639. 

Most FOIA requests filed in individual immigration cases are free. Although federal agencies can recover certain costs, the first two hours of search time are free, and the first 100 pages copied are free. Additionally, agencies currently do not charge at all if the total amount is $14.00 or less. By submitting a FOIA request, the Requestor is agreeing to pay all applicable fees up to $25.00, should the costs go over what is provided for free. The Requestor will be notified if she owes any money up to $25.00, and is ordinarily expected to pay that amount before the agency sends the requested documents. If the Requestor does not wish to agree to $25.00 upfront, the Requestor can specify a greater or lesser amount when making the FOIA request and/or by submitting a fee waiver request. Most of the online submission forms take this into consideration and require the Requestor to state the maximum amount that she will pay. 

The 2016-2017 report revealed that first-time international students dropped 3 percent, indicating that the decline had begun before current president took office. The number of newly arriving international students declined an average 7 percent in fall 2017, with 45 percent of campuses reporting drops in new international enrollment, according to a survey of nearly 500 campuses across the country by the Institute of International Education.

The decline is much more serious in some Midwestern colleges and universities. At the University of Iowa, overall international enrollment this fall (2017) was 3,564, down from 4,100 in fall of 2015. Iowa primarily lost Chinese students.

The University of Central Missouri experienced a sharp decline this year in students from India. In the fall of 2016, the Warrensburg, Missouri, university had 2,638 international students. This fall (2017) it has only 944 international student. It's a big financial impact on the university.It’s a mix of factors. Concerns around the travel ban had a lot to do with concerns around personal safety based on a few incidents involving international students, raise in hate crimes, crimes against foreigners, and a generalized concern about whether they’re safe. Another reason for the decline is increasing competition from colleges and universities in other English-speaking countries, such as Canada, Britain and Australia. ​Read more here.

On a separate note, it became increasingly difficult to get approval of the Change of Status from B2 visitor to F1 foreign student through USCIS (for those prospective student who arrived in the United States as visitors or tourists). Processing times increased by many months, which results in students being too late to start the semester, losing their status and wasting time and money.

Since September 1, 2017, a new 90-day rule took effect (90 days fraud or misrepresentation rule), which also affected those applying for a change of status: with long waiting time, students are expected to wait at least 90 days before they file an application for a change of status. (We posted about 90-day rule here and here ). 

In summer 2017, DHS announced their intention to change the rules to require foreign students to re-register with USCIS every year, which will make study in the USA more expensive, cumbersome, and unnecessarily complicated.

As a result, the best option for many students is to apply for a F-1 student visa abroad at the U.S. embassy or consulate in their home country. There is always a risk of denial and no visa can be guaranteed, however, at present time (2017-2018), a bona fide student with sufficient funds and ties to his home country stands a better chance of approval through consular processing rather than applying for a change of status through USCIS Department of Homeland Security.

On October 23, 2017, another long-standing USCIS adjudication policy was reversed. When filing for an extension of the non-immigrant status, for example, H-1B work visa, you should not take for granted any prior approvals. An applicant has to prove his/her eligibility again when applying for an extension of the same status, even if status was approved before. USCIS will no longer defer to prior approvals.

October 23, 2017 Policy Memorandum "Rescission of Guidance Regarding Deference to Prior Determinations of Eligibility in the Adjudication of Petitions for Extension of Nonimmigrant Status" is available at USCIS webportal.

As a result, USCIS made it more difficult for companies to renew H-1B visas for foreign professionals (workers) who work in specialty occupations. Previously, when it was time to renew an H-1B employee’s status, the USCIS gave deference to past H-1B approval decisions. This enabled H-1B visa holders to obtain extensions in a fast and straightforward manner. USCIS recently rescinded (canceled) their old policy memorandum, and now H-1B visa holders who apply for extensions must again prove eligibility as though they are seeking H-1B visas for the first time.

This policy change will impose greater uncertainty, loss of foreign talent (who may choose to migrate to Canada instead), higher costs and delays to companies who rely on foreign talent.

USCIS is directing officers to use the same amount of scrutiny for initial and extension requests, and indicating that the new guidance applies to a variety of employment visas, not just H-1B.

It is expected that employers will be receiving many detailed Requests for Evidence (“RFE”) when H-1B extension requests are filed. These RFEs will increase the administrative and legal burden on employers seeking H-1B visas, and increase the costs.

Effective October 1, 2017, USCIS also imposed a new rule requiring in-person interviews with all employment-based immigrant visa applicants, including spouses and children, which will burden local USCIS offices and increase wait time for all green card categories waiting for an adjustment of status interview.

H-1B visas are valid for a total of six years and are usually issued in three-year increments. To prepare for the new renewal process, H-1B employers should initiate the renewal process far enough in advance to secure an extension before an H-1B employee’s status expires.
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USCIS October 23, 2017 memo.

On October 8, 2017, the White House released a list of immigration priorities addressing border security, interior enforcement, and a merit-based immigration system. 

The priority list calls for the hiring of 10,000 ICE agents, 300 federal prosecutors, 370 immigration judges and 1,000 ICE attorneys.  

The Department of Homeland Security would be authorized to raise and collect fees from visa services and border crossings to fund border security and enforcement activities. 

The border security measures include funding the southern border wall, ending the abuse of the asylum system, discouraging illegal re-entry by enhancing penalties and expanding categories of inadmissibility, and improving expedited removal of undocumented immigrants.

Making E-Verify mandatory, putting an end to sanctuary cities by authorizing and incentivizing states and localities to help enforce federal immigration laws, and improving visa security (which was recently declared unconstitutional by a federal judge).

With regards to the merit-based immigration system, the White House's priority list reiterates what was previously announced on August 2, 2017, when President Trump unveiled the revised RAISE Act (Reforming American Immigration for Strong Employment). This law would reduce the number of eligible family-based green cards and create a new point-based system for awarding green cards. 

Specifically, the RAISE Act would establish a 30-point threshold for green cards, awarding an applicant higher point totals for higher-salaried jobs, professional degrees, English-speaking ability, younger applicant age, higher future salary, extraordinary achievements, and an applicant’s investing $1.35 million or more in the United States.

Some of these new immigration priorities were previously announced in the form of President's executive orders, proclamations and memos:

• January 23, 2017 EO: Protecting American Jobs and Workers by Strengthening the Integrity of Foreign Worker Visa Programs
• January 25, 2017 executive orders: Enhancing Public Safety in the Interior of the United States and the Border Security and Immigration Enforcement Improvements
• February 20, 2017 memo: Implementing the President's Border Security and Immigration Enforcement Improvement Policies
• March 6, 2017 EO:  Protecting the Nation from Foreign Terrorist Entry into the United States
• March 6, 2017 Memo: Implementing Immediate Heightened Screening and Vetting of Applications for Visas and Other Immigration Benefits, Ensuring Enforcement of All Laws for Entry into the United States, and Increasing Transparency Among Departments and Agencies of the Federal Government and for the American People
• April 18, 2017 EO: Buy American and Hire American
• September 24, 2017 presidential proclamation:  Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats

​If these priorities/proposals will become law, what does this mean for employers/employees? 

Employers will face higher costs in sponsoring foreign workers for visas, and for the employees it will become increasingly difficult to meet a high point-based system threshold in order to obtain a green card.
There will be additional delays in visa issuance due to the additional screening required. There will be litigation, and not all of the priorities will become the law.

There have been several important announcements and policy changes concerning H-1B work visa.

First: On April 3, 2017, USCIS announced that it would introduce several new measures with intent of detecting and deterring H-1B visa fraud and abuses.  According to an official USCIS press release, USCIS will be conducting site visits to H-1B petitioners and worksites, where

(i) USCIS cannot validate the employer’s basic information through commercially available data;
(ii) H-1B dependent employers (companies with high ratio of H-1B workers as compared to U.S. workers: companies with 25 or fewer full-time employees, more than 7 H-1B workers; companies with 26-50 full-time employees, more than 12 H-1B employees; and companies with 50 or more full-time employees, 15% or more H-1B employees); and,
(iii) employers petitioning H-1B workers who work off-site. 

The site visits have been around since 2009. It's not something new. USCIS emphasized that these site visits will be random and unannounced, and are meant to identify companies that abuse the H-1B system. 

USCIS established an email address, which allows the public to submit tips, alleged violations and other information about potential H-1B abuse. The employers that are reported via this email address will also become targets for site investigations.

Second: 

On March 31, 2017, the U.S. Citizenship and Immigration Services (“USCIS”) issued a new Policy Memorandum made available April 3, 2017, which rescinds the December 22, 2000 memorandum titled “Guidance memo on H1B computer related positions.”

The new policy implements a significant change to the adjudication of H-1B petitions for computer programming positions.

2017 H1B Policy Changes and Updates:  The December 22, 2000 memorandum titled “Guidance memo on H-1B computer related positions” provided the policy that most computer programmers had a bachelor’s degree or higher based on information provided by the Occupational Outlook Handbook (“OOH”), which is published by the Department of Labor.  Petitioners were usually able to meet their burden of proving a particular position is a specialty occupation, if it were to prove through information provided in the OOH that a baccalaureate or higher degree is normally the minimum requirement for entry into the particular position.  By rescinding the policy, USCIS has stated that the OOH is no longer sufficient evidence to prove a particular position in computer programming is a specialty occupation and has thus drastically changed how H-1B petitions for computer programmers are to be adjudicated.

Petitioner's Burden of Proof:  The consequence of rescinding the “Guidance memo on H1B computer related positions” is that USCIS has heightened the burden for petitioners.  Petitioners may not rely solely on the OOH to prove that a position in computer science is normally required. Rather, USCIS has clarified its position that petitioners must provide additional evidence to establish that the particular position is a specialty occupation as defined by 8 CFR 214.2(h) (4) (ii) for computer programming.

Entry-Level Positions in Computer Related Positions: The Policy Memorandum clarifies that USCIS must determine whether the attestations and content of the LCA correspond to and support the H-1B visa petition. A petitioner’s designation that a position is a Level I, entry-level position “would likely contradict a claim that the proffered position is particularly complex, specialized, or unique compared to other positions within the same occupation.”  USCIS is changing a long established tradition, by clarifying that most entry-level positions are not specialized occupations within the computer programmer occupation. This provides a basis to deny many of the now pending petitions, filed in April 2017 for the FY 2018. 

Put American Workers First Approach in Tech Companies:  It appears restricting H-1B visas is part of the current administration’s attempt to “put American workers first.” As technology continues to grow, the job of a computer programmer was in the top 5 H-1B job titles for the FY 2017 H-1B petitions.  

Last Minute Policy Change Published on the First Day of the FY 2018 Filing Period for H-1B: The Policy Memorandum is dated March 31, 2017, but only made available April, 3, 2017, as a result, many of the new H-1B petitions have already been filed following the long-established standards of the now “outdated” USCIS 2000 guidance memo.  Employers can now expect to receive RFE (Requests for Evidence) questioning eligibility and requesting additional documentation, and many petitions can be denied.

USCIS allows only 5 days a year in April to file new, cap-subject H-1B petitions for the next fiscal year. In 2016 for FY 2017, 236,000 H-1B visa applicants competed for the 85,000 quota available annually. 

The American Immigration Lawyers Association’s Customs and Border Patrol Office of Field Operations Liaison Committee released new guidance (ed. 03-22-2017) on the due process rights of lawful permanent residents (LPRs, or Green Card holders) at U.S. ports of entry.  It is important that LPRs understand their rights when attempting to enter the country, especially in this new age of increased immigration enforcement. Nonimmigrants applying for admission to the United States may have even less rights at the border.

Rights of LPRs at Ports of Entry

Upon return to the United States from travel abroad, Lawful Permanent Residents (LPRs) have certain due process rights, including the right to a hearing before an immigration judge before they can be stripped of their permanent resident status. In addition, given the increasing reports of CBP inspection of traveler’s electronic devices and/or social media accounts, it is important for members to advise LPR clients of the risks of refusing such a request.

Due Process Rights of LPRs (lawful permanent residents)

LPRs enjoy greater due process rights than nonimmigrants when returning to the United States after travel abroad. Like all international travelers, upon return, LPRs are subject to inspection by CBP. CBP may question and screen LPRs to determine whether they are a “returning resident” or whether they should be treated as an “arriving alien.”

Under INA §101(a)(13)(C), a returning resident shall not be regarded as seeking “admission” to the United States, (i.e., shall not be treated as an arriving alien), unless he or she:

• Has abandoned or relinquished LPR status;
• Has been absent from the United States for a continuous period in excess of 180 days;
• Has engaged in illegal activity after having departed the United States;
• Has departed from the United States while under legal process seeking removal of the alien from the United States, including removal proceedings under the INA and extradition proceedings;
• Has committed an offense under INA §212(a)(2) [criminal and related grounds of inadmissibility], unless since such offense the alien has been granted relief under INA §212(h) [waiver of inadmissibility] or §240A(a) [cancellation of removal for permanent residents]; or
• Is attempting to enter at a time or place other than as designated by immigration officers or has not been admitted to the United States after inspection and authorization by an immigration officer.

An LPR who is deemed to be seeking admission may be charged as removable from the United States as an arriving alien. LPRs that are charged as removable, including those who are alleged to have abandoned their U.S. residence, have the right to a hearing before an immigration judge. See Matter of Huang, 19 I&N Dec. 749 (BIA 1988). Despite this, CBP may attempt to convince an LPR that their absence from the United States resulted in automatic abandonment of their U.S. residence, and urge them to sign a Form I-407, Record of Abandonment of Lawful Permanent Resident Status. As AILA recently advised, an individual does not lose LPR status merely because of time spent abroad. An LPR remains an LPR unless the government proves abandonment by clear, unequivocal, and convincing evidence and until an order of removal is issued and becomes final.

Form I-407 must be signed voluntarily and there are no negative consequences if an LPR refuses to sign the form. Neither failure to sign nor abandonment of LPR status by itself is grounds for detention by CBP. If CBP makes a determination, by a preponderance of the evidence, that the LPR abandoned his or her residence in the U.S., and the LPR refuses to sign a Form I-407, CBP’s only recourse is to issue a Notice to Appear (NTA) before an immigration judge. Even LPRs who have signed a Form I-407 retain the right to request a hearing before an immigration judge to determine whether LPR status was abandoned. See Matter of Wood, No. A24-653-925 (BIA 1992). Should CBP confiscate the LPR’s permanent resident card, the LPR has the right to alternative evidence of LPR status, such as an I-94 card and/or passport stamp.

CBP Search of Electronic Devices and Social Media Accounts

In 2009, CBP released to the public its current policy on searches of electronic devices. This policy states that all electronic devices, including those belonging to U.S. citizens, can be searched at a port of entry “without individualized suspicion.” There appear to be only very narrow limitations to the scope of CBP’s search authority. For example, section 5.2.1 indicates that privileged material, such as attorney/client communications, while not necessarily exempt from a search, may be subject to special handling procedures which require approval from CBP Associate/Assistant Chief Counsel.
CBP’s right to conduct suspicion-less searches of persons and conveyances has long been upheld by the Supreme Court as a “border search exception” to the 4th Amendment. While the 4th Amendment to the Constitution guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” the Supreme Court held in Carroll v. United States, 267 U.S. 132 (1925), that it is “reasonable” to conduct border searches without a warrant due to national security interests.

CBP’s policy of conducting suspicion-less searches of electronic devices has not yet been meaningfully challenged. Following the publication of the 2009 guidance, the Supreme Court held, in Riley v California, 134 S. Ct. 2473 (2014), that the police may not search and seize the digital contents of a person’s cell phone or electronic device, incident to an arrest, without first obtaining a search warrant.  In arriving at this conclusion, the Court noted that cell phones have become “such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.” Riley, 134 S. Ct. at 2484. The ability of modern cell phones to contain the digital sum total of one’s “papers and effects,” the Court held, makes police searches of these devices unreasonable without a warrant. This ruling, however, only applies to arrests occurring in the interior of the United States and does not address arrests or searches at the border. Though this issue could be considered by a federal court, given the dire consequences to a foreign national who refuses to submit to such a search (including expedited removal), it is more likely that this issue will be pursued by a U.S. citizen who does not consent and is willing to litigate the matter.

A subsidiary issue to warrantless searches of cell phones and electronic devices is whether CBP may access an individual’s social media accounts. In 2016 CBP began collecting social media identifiers from Visa Waiver travelers through changes to the ESTA application. While the ESTA form makes this question optional, and only asks for social media “identifiers,” (as opposed to “passwords”) so that CBP can presumably view the traveler’s public information, AILA has received several reports of CBP officers requesting log in information so that they can view private social media accounts and messages. While the CBP electronic device search policy has not been updated to address this specific situation, it appears that CBP may view this information as falling within the “border search exception” to the 4th Amendment. For more information, see CBP Inspection of Electronic Devices Tear Sheet.

If a U.S. citizen refuses to consent to a search, CBP may do one of several things, including any of the following or a combination of the following:

• Detain the person until he or she consents.
• Have the person arrested for obstruction of justice.
• Let the person go and seize the device in question.

The CBP policy on search of electronic devices provides that CBP officers (with supervisory approval) make take physical possession of an electronic device either (a) when, upon a search of such a device, with or without suspicion of wrongdoing, a CBP officers discovers probable cause to seize it; or (b) when officers have “technical difficulties” in searching the device, such that technical assistance is required to continue the border search. In the latter case, inability to unlock the device due to non-consent could be deemed a “technical difficulty” justifying detention of the device. The policy provides that devices shall generally be returned within five days, but devices may be kept for up to 15 days and extensions beyond 15 days can be approved in 7-day increments thereafter. While CBP policy is to carefully record information about these detentions in its records, the policy sets no maximum period after which a device is required to be returned to its owner.

If an LPR or nonimmigrant refuses to consent to a search, CBP could follow any of the courses of action outlined in the previous paragraph with regard to U.S. Citizens and may, in addition, refuse a nonimmigrant admission to the United States and/or utilize the agency’s expedited removal authority. See generally, INA §235 and 8 CFR Part 235.

Right to Counsel (right to an attorney)

CBP has long held that there is no “right to counsel” during the inspection and admission process, although attorneys are sometimes permitted, at the agency’s discretion, to accompany clients who are detained in secondary inspection and/or are ordered to appear at a deferred inspection office. This interpretation is supported by 8 CFR §292.5(b) which applies generally to all immigration proceedings and states:

(b) Right to representation. Whenever an examination is provided for in this chapter, the person involved shall have the right to be represented by an attorney or representative who shall be permitted to examine or cross-examine such person and witnesses, to introduce evidence, to make objections which shall be stated succinctly and entered on the record, and to submit briefs. Provided, that nothing in this paragraph shall be construed to provide any applicant for admission in either primary or secondary inspection the right to representation, unless the applicant for admission has become the focus of a criminal investigation and has been taken into custody. 

In addition, the CBP Inspector’s Field Manual, at chapter 2.9, states:

Dealing with Attorneys and Other Representatives. No applicant for admission, either during primary or secondary inspection has a right to be represented by an attorney – unless the applicant has become the focus of a criminal investigation and has been taken into custody. An attorney who attempts to impede in any way your inspection should be courteously advised of this regulation. This does not preclude you, as an inspecting officer, to permit a relative, friend, or representative access to the inspectional area to provide assistance when the situation warrants such action. he Inspector’s Field Manual (“IFM”) is no longer relied upon as an official source of agency guidance and has been at least partially replaced by the CBP Officer’s Reference Tool (ORT). The ORT is the subject of FOIA litigation and has not yet been released. Nevertheless, the IFM guidance appears to comport with current agency practice.  (Emphasis added).

Should CBP choose to issue an NTA and initiate removal proceedings, INA §101(a)(27) states that there must be at least ten days between service of the NTA and the first removal hearing. However, the issuance of an NTA does not impose upon CBP an obligation to allow the individual to speak with an attorney while being held in a CBP facility, “unless the applicant has become the focus of a criminal investigation and has been taken into custody.” In addition, should CBP detain and hold the person until Immigration and Customs Enforcement (ICE) takes him or her into custody pending a bond hearing, the right to counsel would then attach, as the individual would no longer be an applicant for admission.

​You can view updated Know Your Rights Guidance here.

​If you need legal advice, want to schedule a consultation or want to hire an attorney, please email us and we will get back to you to schedule the best time to talk on the phone or video chat.
​

In recent months, we have heard from many people whose applications for a provisional waiver, I-601A, were rejected for some technical and easily avoidable reason. USCIS had reported that they have seen an increase in rejections of Forms I-601A, Application for Provisional Unlawful Presence Waiver.

Please remember that if you are requesting a provisional unlawful presence waiver, you must file the current version of Form I-601A with the proper fee(s) and in accordance with the form instructions.  
When submitting Form I-601A, please make sure you:

• Submit the most current version of Form I-601A (update 04/2019: current edition is 02/13/2019)

• Complete all required fields and sign the form.
• Submit the proper filing fee of $630.(as of 2017). If you are younger than 79, you must also pay $85 for biometric services (for I-601A)

 Also, you must submit:

• A printout from the Electronic Diversity Visa Entrant Status Check page at dvlottery.state.gov confirming that you are a DV Program selectee or derivative

or

• The U.S. Department of State (DOS) National Visa Center immigrant visa processing fee receipt showing you have paid the fee in full.

Note: Documents such as the Immigrant Visa Application Processing Fee Bill Invoice, Affidavit of Support (AOS) Fee receipt or a receipt showing the payment is in process are not accepted and could cause delays in processing your case. You must provide a proof that you paid the immigrant visa fee and the payment was processed.

To ensure that you application is approved, it is your burden, as an applicant, to provide sufficient evidence of extreme hardship, relationship and other supporting documents.

These are all issues that are easy to correct. Do not place yourself in the situation where your application is rejected for a silly and easily avoidable reason, or denied for lack of evidence and supporting documentation. If you need legal advice, want to schedule a consultation or want to hire an attorney, please email us and we will get back to you to schedule the best time to talk on the phone or video chat.

Previously, we posted additional information about filing a provisional waiver application on our blog here, and here and linked to the ILRC practice advisory here. USCIS Practice Manual is here.

​Briefly in Russian:

Напоминание о том как избежать отказа в заявлении на вейвер, по английски extreme hardship waiver USCIS форма заявления I-601 и provisional waiver USCIS форма заявления I-601A. 

• Используйте самое последнее и действительное издание формы. В настоящее время (04-2019) это издание, датированное 13 февраля 2019 г. 
• Перед подачей заявления обязательно проверьте правильную ли форму вы заполнили и уточните сумму госпошлины.
• Приложите чек на правильную сумму за форму I-601A. В настоящее время госпошлина составляет 630 долларов, плюс 85 долларов за отпечатки пальцев, если вам нет 79 лет.
• Заполните все графы и ответьте правильно на все вопросы в заявлении. 
• Приложите все сопутствующие документы и доказательства. Именно для этого, чтобы правильно организовать и представить ваши доказательства, разумно проконсультироваться или нанять адвоката для помощи в ведении дела. Мы оказываем услуги по вейверам и предоставляем платные консультации тем клиентам, кому нужен совет адвоката. Для того, чтобы назначить время и дату консультации, свяжитесь с нами по электронной почте.
• Помните - это ваша обязанность доказать, что вам должны утвердить вейвер. Вам не обязаны утвердить, а могут утвердить ваше заявление на вейвер, ЕСЛИ вы докажете, что "more likely than not" ваш родственник будет в экстремальной ситуации если вам не дадут вейвер и не разрешат вернуться в США. Стандарт в таких делах - preponderance of the evidence.
• Помните, что ваши дети не являются теми родственниками, на ущерб которым вы опираетесь в своем заявлении. Вашим родственником может быть муж, жена, отец, мать - американские граждане или постоянные жители США (но не дети). У вас может быть более одного родственника. Родственник, ущерб которому вы описываете, может быть другой, не тот, кто подал на вас петицию I-130.
• Вы обязаны приложить доказательство того, что вы уже оплатили пошлину за иммиграционную визу или же распечатать уведомление о том, что вас выбрали как победителя лотереи грин карт.
• В последние несколько лет произошли большие изменения в области вейвера I-601 и I-601A. За время новой администрации с 2017 года пока не было никаких существенных изменений в этой области иммиграционного права.
• Перед подачей, убедитесь, что вам нужен вейвер, что у вас есть соответствующий родственник, что вы соответствуете стандарту на вейвер и что у вас достаточно доказательств, и вы сможете грамотно аргументировать почему вам должны утвердить вейвер. Также убедитесь, что вы не подпадаете под "permanent bar", так как в этом случае вам вейвер не положен. Помните, что теперь получение вейвера возможно во всех семейных категориях, не только в категории immediate relative но и во всех family preference categories. 
• Если вам нужен совет и помощь адвоката,  вы можете связаться с нами по этому адресу или нажмите линк внизу. Мы вам вышлем анкету и затем договоримся и времени и дате телефонной консультации.

Starting in January 2017, a new administration has issued multiple immigration-related Executive Orders and implementing memoranda.

These orders and memoranda touch on nearly all areas of immigration enforcement, including the treatment of immigrant children.

March 2017 ILRC guidance addresses possible ways that UACs may be affected by these changes.

We do not know how these policies will play out in practice, and there will likely be legal and advocacy challenges to their implementation.

Limiting Who Can Be Considered a UAC.

 UAC is defined as a child who:

1) has no immigration status in the U.S.;

2) is under 18 years old; and

3) has no parent or legal guardian in the U.S., or no parent or legal guardian in the U.S. who is available to provide care and physical custody.

When children from non-contiguous countries are apprehended by Customs & Border Protection (CBP) or Immigration & Customs Enforcement (ICE), those agencies must notify the Department of Health & Human Services (HHS) within 48 hours, and transfer the child to HHS within 72 hours of determining them to be a UAC.

Such notice and transfer are also required for UACs from contiguous countries, provided that they trigger trafficking or asylum concerns or are unable to make an independent decision to withdraw their application for admission.

Many UACs are apprehended by CBP at the border, such that even those who do have parent(s) in the U.S. typically do not have parents that are “available to provide care and physical custody” in the short time in which CBP must determine if the child meets the UAC definition. Because of this, some children are classified as UACs even though they have a parent in the U.S., consistent with the definition’s disjunctive third prong.

Under previous USCIS guidance and practice, once a child is classified as a UAC, the child continues to be treated as a UAC, regardless of whether they continue to meet the definition. The UAC designation is generally beneficial because the law provides for more child-friendly standards for UACs. In an apparent effort to limit the number of youth who are classified as UACs, the Dept. of Homeland Security (DHS) Memorandum implementing the recent Executive Order on border enforcement (“Border Enforcement Memo”) directs U.S. Citizenship & Immigration Services (USCIS), CBP, and ICE to develop “uniform written guidance and training” on who should be classified as a UAC, and when and how that classification should be reassessed.5 This guidance has not yet been developed.

But we anticipate that we may see any or all of the following changes:

--  Fewer children being classified as UACs upon apprehension. This could result in these children being subject to expedited removal (fast-track deportation without seeing an Immigration Judge), rather than being placed in removal proceedings under INA § 240, as the law requires for all UACs from non-contiguous countries and those who pass the screening from contiguous countries.

-- This could also result in more children being detained by DHS in detention centers rather than by HHS in less restrictive settings.

-- Children who are initially classified as UACs being stripped of that designation—formally or informally--once they turn 18 and/or reunify with a parent and/or obtain a legal guardian.

Federal law offers certain benefits to UACs. Losing that designation may deprive the affected children of those protections, meaning that they may:
1) no longer be able to avail themselves of the provision of law that allows UACs to file their asylum applications with USCIS in a non-adversarial setting despite being in removal proceedings;
2) be subject to expedited removal after being released from HHS custody rather than being placed in removal proceedings under INA § 240;
3) not receive post release services from HHS;
4) no longer be eligible for certain government-funded legal representation programs for UACs; and
5) no longer be eligible for voluntary departure at no cost.

Punishing Sponsors & Family Members of UACs

The Border Enforcement Memo also seeks to penalize parents, family members, and any other individual who “directly or indirectly . . . facilitates the smuggling or trafficking of an alien child into the U.S.” This could include persons who help to arrange the child’s travel to the U.S., help pay for a guide for the child from their home country to the U.S., or otherwise encourage the child to enter the U.S.10 Pursuant to the Border Enforcement Memo, enforcement against parents, family members or other individuals involved in the child’s unlawful entry into the U.S. could include (but is not limited to) placing such person in removal proceedings if they are removable, or referring them for criminal prosecution. We do not know how this provision will play out in practice.

​But even the inclusion of this language in the memo may cause panic and dissuade parents, family members or other adults from 1) sending children to the U.S. (typically done when children face imminent harm in their home country); 2) sponsoring children out of HHS custody once they are in the U.S.; 3) assisting in children’s applications for immigration relief, including asylum; 4) otherwise assisting children in fighting against deportation.

Criminalizing Young People

​Under the DHS memo implementing the Executive Order on interior enforcement, DHS’s enforcement priorities have been vastly expanded. While DHS previously focused its resources on removing people with serious criminal convictions, now DHS will take action to deport anyone it considers a “criminal alien.” The current administration’s definition of a criminal alien is incredibly broad, including people with criminal convictions, but also those charged with criminal offenses, or who have committed acts that could constitute a criminal offense.

Immigration law has long treated juvenile delinquency differently than criminal convictions, and that law is unchanged. However, it is unclear given the broad scope of the new enforcement plan whether delinquency will be considered a “criminal offense” and thus a priority for purposes of enforcement (even though it may not make a person inadmissible or deportable under the immigration laws). It remains to be seen how these expanded enforcement priorities will play out. 

See a new March 2017 guidance here.

​

ПРАКТИЧЕСКИЕ СОВЕТЫ: ЗНАЙ СВОИ ПРАВА И КРАТКИЙ ОБЗОР УКАЗОВ ПРЕЗИДЕНТА ОБ ИММИГРАЦИИ ОТ 25 И 27 ЯНВАРЯ 2017.

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Ситуация с указами президента меняется каждый день: помните, что информация и законодательство постоянно обновляются, и мы не в состоянии вовремя опубликовать изменения и дополнения на этом блоге. Если вам нужен юридический совет адвоката, свяжитесь с нами по электронной почте и мы договоримся о дате и времени консультации по телефону или через скайп.

После решения федерального судьи о том, что некоторые положения указа президента должны быть приостановлены от 3 февраля 2017, 4 февраля DHS, USCIS, CBP, ICE DOS и все другие департаменты и агенства официально заявили, что они возвращаются к старым процедурам, как это было в силе до подписания указа. И пока указ президента находится на рассмотрении в суде, они не будут его применять.
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25 и 27 января 2017 Президент США Трамп подписал три важных указа, касающихся иммиграции, виз и национальной безопасности страны.
 
Полный текст этих указов можно прочитать по линкам:

1. Border Security and Immigration Enforcement Improvements (01-25-2017)
2. Enhancing Security in the Interior of the United States (01-25-2017)
3. Protecting the Nation from Foreign Terrorist Entry into the United States (01-27-2017)

Указ номер 1 касается постройки стены на границе между США и Мексикой.
 
Указ номер 2 касается новых приоритетов в депортации из США, а также изменения во взаимоотношении федерального правительства и так называемых "sanctuary cities", городов, не выдающих нелегальных иммигрантов. Если такие города будут отказываться сотрудничать с федеральными орнанами, и не согласятся передавать им информацию о нелегалах, федеральное правительство угрожает отменой федерального финансирования для некоторых программ. Следует помнить, что это касается только тех программ, которые финансируются федералным правительством США, так как большая часть программ в любом штате финансируется за счет бюджета штата.

Указ номер 3 был подписан и вступил в силу 27 января 2017, и получил самую большую огласку и вызвал шквал негодования и возмущения граждан и политиков как в нутри США, так и за пределами. Указ предусматривает следующее: (1) вводится временный на 90 дней запрет на въезд в США лиц имеющих отношение к семи исламским странам Ближнего Востока (указ не расшифровал, что значит national): Иран, Ирак, Сирия, Судан, Ливия, Йемен и Сомалия; (2) временно на 120 дней приостанавливается въезд беженцев в США изо всех стран мира; (3) на неопределенное время запрещен въезд в США лиц, имеющих отношение к Сирии (важно подчеркнуть, что запрет не ограничен по времени, он относится как к лицам, имеющим гражданство Сирии, так и рожденным там, и может относится к лицам, которые имеют паспорта или travel documents, выданные Сирией, но рожденным в других странах, (4) отменена процедура выдачи виз в США без интервью.

Также в понедельник 30 января 2017 года Иммиграционная Служба США USCIS объявила своим сотрудникам, что на неопределенное время приостанавливается вынесение решений по всем заявлениям и петициям от заявителей из этих семи стран (Иран, Ирак, Сирия, Судан, Ливия, Йемен и Сомалия). Вот это уже очень серьезно. Так как большая часть заявителей находятся в США, и они будут подавать заявления на продление и смену статуса, на получение или продление разрешения на работу, на грин карту, на гражданство и т.п., и USCIS будет вынуждено откладывать их дела "until further notice", так как им запрещено принимать окончательные решения, даже если заявитель успешно прошел интервью (например, на грин карту или гражданство). Пока не понятно, что будет происходить на практике. Скорее всего в течение 2017 года этот запрет будет снят, но конкретной информации пока нет.

Также Госдеп США прекратил выдачу виз гражданам из этих же семи стран (Иран, Ирак, Сирия, Судан, Ливия, Йемен и Сомалия). 27 января 2017 мы получили меморандум из Госдепа о том, что все визы, выданные гражданам этих стран считаются "условно аннулированы" с 27 января.

Запрет на въезд в США относится также к лицам с двойным гражданством. Например, если у вас одно гражданство Ирана и второе Германии, и ранее вы могли ездить в США без визы по Visa Waiver Program по немецкому паспорту, то теперь это невозможно. (2 февраля 2017 Госдеп США опубликовал инструкцию о том, что они продолжают выдавать визы лицам с двойным гражданством, и ставят визу в паспорт той страны, которая не включена в список семи стран).

Запрет на въезд в США по этому указу президента от 27 января 2017 все также относится и к постоянным жителям США (тем, у кого грин карта или вид на жительство в США). За последние дни несколько федеральных судов приняли решения о том, что постоянные жители должны быть допущены в США, но это пока не отменило положение указа. И инструкции от DHS позволяют въезд постоянных жителей, так как это "в национальных интересах" США, что не отменяет сам запрет. Постоянные жители США должны пройти secondary inspection при въезде в США, и доказать, что не являются риском для национальной безопасности.

Если вы имеете вид на жительство США и при въезде в США, сотрудники CBP пытаются отобрать вашу грин карту или не впустить вас в страну, читайте наши практические советы тут.
 
Будьте осторожны, если вы подпадаете под одну из невъездных категорий. Всегда лучше проконсультироваться с адвокатом заранее.

Ожидается еще один указ президента о рабочих визах H-1B visa. Некоторые веб сайты поместили черновик предполагаемого указа. Этот указ внесет изменения в порядок выдачи рабочей визы H-1B и разрешения на работу EAD для супругов H-4. Предполагается, что указ изменит порядок проведения лотереи для виз H-1B, где упор будет делаться на том, получено ли образование в США и какую зарплату готов платить работодатель, а также фокус будет на выдаче рабочих виз "самым лучшим и самым умным" (расшифровка такой нетипичной для юридического документа фразы, я надеюсь, последует когда указ будут подписан).

ПРАКТИЧЕСКИЕ СОВЕТЫ:

1. Если вы из одной из семи стран (гражданин, рождены, имеете какое-то другое задокументированное отношение), воздержитесь от поездок в США или от поездок за пределы США в ближайшие 90 дней, или пока указ находится в силе, или вообще на неопределенное время, если вы имеете отношение к Сирии
2. Если вы постоянный житель США, имеющий отношение к одной из семи стран, воздержитесь от поездок за предеыл США в течение 90 дней или пока указ находится в силе (а если вы из Сирии - то вообще не выезжайте из США, так как запрет на неопределенное время).
3. Если вы из любой другой мусульманской страны, будьте на чеку. Ваша страна может быть добавлена в "список семи". Возможно, что вам стоит заранее подать какие-то заявления, которые вы откладывали, продлить документы, истекающие в скором будущем.
4. Если вы из одной из семи стран, и ваше заявление уже находится на рассмотрении в USCIS, будьте готовы к долгому ожиданию, так как они обязаны отложить все такие заявления и им запрещено выносить решения по делу. Теоретически возможно подать иск в федеральный суд, чтобы принудить государство принять решение по вашему делу, но практический совет будет подождать прецедентов и официальных разъяснений от иммиграционной службы.
5. Визы уже выданные лицам из семи стран были "условно аннулированы" 27 января 2017. Выдача новых виза в настоящий момент приостановлена.
6. Если вы планируете подать петицию на маму, отца, брата, сестру, детей, жену или мужа - и по настоящим законам вы вправе подать такую петицию, не откладывайте и подавайте петицию. По некоторым сведениям целые визовые категории могут быть отменены, изменены или уменьшены в будущем.
7. Если вы нелегал, проконсультируйтесь с адвокатом и определитесь, есть ли у вас какие-то варианты.

 
В заключение я хочу добавить, что хотя в большинстве случаев, этот третий указ президента от 27 января 2017 не имеет отношения к лицам из русскоговорящего сообщества в США, но есть и такие, к кому этот указ имеет прямое отношение. Например, если вы родились на территории одной из семи стран, где ваши родители жили, учились или работали, даже если у вас нет гражданства из одной из семи стран, вы подпадаете под действие указа. Например, если вы лицо без гражданства, но ваши документы были выданы Сирией или одной из семи стран, или вы в прошлом постоянно указывали Сирию, Ирак, Иран и т.п. как страну своей национальности -  вы тоже подпадаете под действие указа. Многие положения указа нуждаются в дальнейшей расшифровке и детальном объяснении (например, что такое "лицо имеющее отношение к одной из семи стран"). Такие официальные объяснения обычно публикуются через соответствующие каналы в иммиграционной службе USCIS и через Госдеп США Department of State. Мы будем вас держать в курсе!

On January 25 and 27, 2017, President signed several Executive Orders. Here are the links to full text of three Executive Orders on Immigration:

1. Border Security and Immigration Enforcement Improvements (01-25-2017)
2. Enhancing Security in the Interior of the United States (01-25-2017)
3. Protecting the Nation from Foreign Terrorist Entry into the United States (01-27-2017)

Executive Order Number 1 concerns building a wall along the 2,000 mile border between the US and Mexico.

Executive Order Number 2 would prioritize the deportation or removal of criminals from USA. It would also compel state and local agencies to participate in federal deportation program, by targeting so called Sanctuary Cities, Districts, states. If a sanctuary city doesn't comply, the federal funding can be cut off. Lawsuits are expected to follow. Some jurisdictions, such as, for example, Miami, already declared that they are abolishing their sanctuary city status.

Executive Order Number 3 immediately (1) Implemented a travel ban from seven designated predominantly Muslim countries for 90 days (Iran; Iraq; Libya; Somalia; Sudan; Syria; and Yemen); (2) suspended refugee admissions from all countries of the world for 120 days; (3) indefinitely suspended admission for nationals of Syria, and (4) suspends interview waivers at US consulates abroad.

On Monday January 30, 2017, the USCIS has announced that it will put a hold on all applications and petitions benefitting citizens/nationals of the 7 countries (Iran; Iraq; Libya; Somalia; Sudan; Syria; and Yemen), be they in the US or abroad.  That means that a green card holder from one of seven countries cannot be sworn in as a US citizen, or a work permit can't be approved, or a green card application can't be approved -- even if a person was already interviewed, and there are no issues with the person's background and he/she is otherwise eligible for a green card, work permit, visa or US citizenship. Because a person is a "national" of one of the seven countries, his or her application will be placed on hold "until further notice". 

The US Department of State had stopped issuing any visas to nationals from the seven enumerated countries: Iran; Iraq; Libya; Somalia; Sudan; Syria; and Yemen.

If you are a national of one of the seven countries, even if you were already issued a visa, you are no longer able to travel to USA on a that visa while this ban remains in place. Effective January 27, 2017, US Department of State had "provisionally revoked" all visas issued to the nationals of seven countries (click here to read the DoS memorandum).

Even if a national of one of the seven countries has a passport from another "unrestricted" country (dual citizenship), he or she will not be allowed to travel to USA while the ban is in place.  (Update: on Feb 2, 2017, DOS issued a clarification on dual nationals: "We will continue to issue nonimmigrant and immigrant visas to otherwise eligible visa applicants who apply with a passport from an unrestricted country, even if they hold dual nationality from one of the seven restricted countries.")

The executive order also suspends the “interview waiver” program at US consulates abroad. However, ESTA or the Visa Waiver Program is not directly impacted by the new executive order. The “interview waiver” program is a policy whereby some foreign nationals applying for a renewal of a visa abroad are exempt from an in person interview at US consulates since they have been previously screened. By eliminating the interview waiver program, interview wait times at US consulates will likely increase.

The executive order also suspends all refugee admissions for 120 days and indefinitely suspends admission of Syrian refugees for an undefined amount of time. During the 120 days, government agencies are instructed to implement new procedures to help secure the “national interest.”

Upon resumption of the refugee program, the executive order instructs the government to prioritize admission of Christians over other religions, which will result in more lawsuits to follow.

Yes, the executive order still applies to lawful permanent residents. Please keep in mind that the ban was not cancelled but merely modified as it applies to green card holders nationals of one of the seven enumerated countries. 

As of result of litigation, on Sunday, January 29, 2017 DHS stated that permanent residents are allowed to board planes and come to the US, but will undergo additional secondary inspection screening upon their entry. The same day DHS issued a statement stating that allowing permanent residents to enter the US on a “case by case basis” is in the “national interest” but that permanent residents will continue to undergo increased interrogation. Even after DHS’ announcement softening how the ban applies to permanent residents, anyone returning from one of the seven designated countries should anticipate increased interrogation, potential detention and long delays when returning from trips abroad.

Please see our previous posts on executive orders on travel ban and about sanctuary cities here.

A draft copy of a 4th unsigned Executive Order entitled “Protecting American Jobs and Workers by Strengthening the Integrity of Foreign Worker Visa Program” was made available at some websites.  This Order would impact the H-1B and H-4 EAD programs, provide for site visits to L-1 employers and expand the E-Verify Program. It will change the way the H-1B Lottery is operated, giving preference to "the best and the brightest" applicants with the degree from the US university and higher salary.

A good article about the H-1B visas could be found here.

ADVISORY or GUIDANCE for Lawful Permanent Residents of USA, Dual Citizens, People with Pending Applications, Workers, Students and Visitors to the United States:
​

1. If you are from one of the seven countries listed above, do not leave the country unless you do not plan to return to the USA.
2. If you are a lawful permanent resident (a green card holder) from one of the seven countries, beware that the ban also applies to you. The ban was merely modified by DHS. On 01-29-2017, the DHS clarified that they will allow permanent residents to enter the US on a “case by case basis” is in the “national interest” but that permanent residents will continue to undergo increased interrogation and secondary inspection (therefore, they can be denied re-admission to USA). Read our guidance on what to do if you are being denied admission at the airport and the CBP agent tries to take away your green card.
3. If you are from a Muslim country, remember that your country also maybe added to the list of the "banned countries" while you are outside of the USA. 
4. If you are a national from one of the seven countries, and have a visa in your passport, your visa was "provisionally revoked" by the US Dept of State effective 01-27-2017, which means your visa was made invalid and you can't travel to USA.
5. If you are have a pending application/petition for immigration benefits with USCIS and you are from one of the 7 countries, your application will be placed on hold. At this time, this hold is indefinite or "until further notice". It might be possible to file a Petition for a Writ of Mandamus in Federal Court to try to force the government to take action on your pending application/petition.
6. If you are from a Muslim country which is not on the List of 7, you may want to file your application for immigration benefits now before your country is added to the list of banned countries.
7. If you are a green card holder, no matter what country you were born in, you may be wish to apply for naturalization as soon as possible in order to assure that you will be able to travel abroad and can always return to your home in USA in the future.
8. If you are present in the US on temporary visa and wish to extend or change your status, consult an attorney before filing any application.
9. If you are undocumented, see an immigration attorney to see if there are any possibilities for you to apply for lawful status.
10. If you plan to sponsor a relative for a green card, do so immediately as the family-based categories may be severely restricted in the future.
11. If you are on a temporary working visa and wish to apply for a green card, ask your employer to sponsor you now before it's too late.
12. If you are a dual citizen from one of the seven countries and any other country (except USA), you are not allowed to travel to USA. (Update: on Feb 2, 2017, DOS issued a clarification on dual nationals: "We will continue to issue nonimmigrant and immigrant visas to otherwise eligible visa applicants who apply with a passport from an unrestricted country, even if they hold dual nationality from one of the seven restricted countries.") 
13. Even if you are a lawful permanent resident of USA and plan to travel internationally or plan to return to USA after a trip abroad, you should consult an attorney.
14. The EO also suspends the “interview waiver” program at US consulates abroad. Importantly, ESTA or the Visa Waiver Program is not directly impacted by the new EO. The “interview waiver” program is a policy whereby some foreign nationals applying for a renewal of a visa abroad are exempt from an in person interview at US consulates since they have been previously screened. By eliminating the interview waiver program, interview wait times at US consulates will likely increase.

On January 17, 2017, the U.S. Department of Homeland Security (DHS) published a final rule International Entrepreneur Rule or "Startup Parole" to improve the ability of certain foreign start-up founders to begin growing their companies within the United States.

Under this final rule, DHS may use its "PAROLE" authority to grant a "Startup Parole", or a period of authorized stay, on a case-by-case basis, to foreign entrepreneurs who demonstrate that their stay in the United States would provide a significant public benefit through the potential for rapid business growth and job creation.

The new rule effective date is July 17, 2017, which is 180 days after its publication in the Federal Register.

This final rule adds a new section 8 CFR 212.19 to provide guidance with respect to the use of parole for entrepreneurs of start-up entities based upon significant public benefit. 

DHS estimates that 2,940 entrepreneurs will be eligible under this rule annually. Eligible entrepreneurs may be granted a stay of up to 30 months, with the possibility to extend the period by up to 30 additional months if they meet certain criteria, in the discretion of DHS.

Under this final rule, eligibility may be extended to up to three entrepreneurs per start-up entity, as well as spouses and children. Entrepreneurs granted stays will be eligible to work only for their start-up business. Their spouses may apply for work authorization in the United States, but their children will not be eligible.An applicant would need to demonstrate that he or she meets the following criteria to be considered under this rule:

• The applicant possesses a substantial ownership interest in a start-up entity created within the past five years in the United States that has substantial potential for rapid growth and job creation.
• The applicant has a central and active role in the start-up entity such that the applicant is well-positioned to substantially assist with the growth and success of the business.
• The applicant can prove that his or her stay will provide a significant public benefit to the United States based on the applicant’s role as an entrepreneur of the start-up entity by:
  • Showing that the start-up entity has received a significant investment of capital from certain qualified U.S. investors with established records of successful investments;
  • Showing that the start-up entity has received significant awards or grants for economic development, research and development, or job creation (or other types of grants or awards typically given to start-up entities) from federal, state or local government entities that regularly provide such awards or grants to start-up entities; or

Showing that they partially meet either or both of the previous two requirements and providing additional reliable and compelling evidence of the start-up entity’s substantial potential for rapid growth and job creation.

Briefly in Russian:

Стартап Пароль или Виза на 30 месяцев для предпринимателей в США.
17 января 2017, Иммиграционная служба США (USCIS / DHS) опубликовала новый Закон по поощрению предпринимательства и стартапов в США.

Иностранным бизнесменам и предпринимателям открывающим новый бизнес в США (и членам семей - супругам и детям) будет предоставлятся Пароль (разрешение на въезд и проживание в США сроком на 30 месяцев с продлением, разрешение на работу для предпринимателя и его супруга(-и), но не детей).

Закон вступает в силу 17 июля 2017 года.

Новый статус Пароль для предпринимателей стартапа будут доступен лицам, чьи стартапы были сформированы в течение последних 5 лет, при условии что данный инвестор продолжает играть в нем “центральную и активную роль”. 

Одна стартап компания сможет получить пароли не более, чем на 3-х своих иностранных учредителей (плюс члены их семей). 

Супруги предпринимателя будут иметь право подать заявление на разрешение на работу, и смогут работать в любом бизнесе или организации, а не только в стартапе. Сам предприниматель имеет право только руководить и работать в своем стартапе. Дети предпринимателя не имеют право на работу, находясь в США по этому паролю.

Госпошлина в USCIS за подачу заявления на такой Пароль составит US$1,200.

Предприниматель должен владеть не менее чем 10% от стартапа, при этом показать, что стартап имеет потенциал для быстрого роста и создания новых рабочих мест. Это показывается:

А) наличием американского инвестора, который инвестировал от US$250,000 в стартап, или
В) получением государственных грантов от US$100,000; или
С) частично # А или # В выше с предоставлением "убедительных доказательств", что стартап обеспечит «значительный положительный эффект для общества" в США.

Предприниматель сможет продлить Пароль по истечении 30 месяцев, если он докажет, что стартап создал как минимум 5 рабочих мест, соответствующим требованиям закона, и его доля в стартапе не упала ниже 5 процентов.

​Все детали внизу по линку.

​​You can read the new rule in the Federal Register or download the PDF file here.​

November 2, 2016

PA-2016-07
Policy Alert

SUBJECT: Definition of Certain Classes of Medical Conditions and Other Updates Relating to Health-Related Grounds of Inadmissibility

Purpose:

U.S. Citizenship and Immigration Services (USCIS) is updating guidance in the USCIS Policy Manual regarding health-related grounds of inadmissibility in accordance with the U.S. Department of Health and Human Services (HHS) rulemaking updating Title 42 of the Code of Federal Regulations, part 34 (42 CFR 34).

Background:

On January 26, 2016, HHS published the final rule updating HHS’s regulation. USCIS is updating its guidance in Volume 8, Part B of the Policy Manual to reflect the changes to the HHS regulation. The HHS final rule was effective on March 28, 2016. Accordingly, the updates made to the USCIS Policy Manual are effective as of March 28, 2016. The guidance contained in the Policy Manual is controlling and supersedes any prior guidance.

Policy Highlights:

Updates the definition of a Class A condition, to include failure to present documentation of having received vaccinations against vaccine preventable diseases.
 Updates the definition of a Class B condition to “health conditions, diseases, or disability serious in degree or permanent in nature.”
 Updates the definition of physical and mental disorders with associated harmful behavior and the definition of drug abuse and drug addiction.
 Removes 3 medical conditions (chancroid, granuloma inguinale, and lymphogranuloma venereum) from the list of communicable diseases of public health significance that would render an applicant for immigration benefits inadmissible on health-related grounds of inadmissibility.

Citation Volume 8: Admissibility, Part B, Health-Related Grounds of Inadmissibility [8 USCIS-PM B].

The USCIS Policy Manual has been updated to provide guidance regarding health-related grounds of inadmissibility in accordance with the U.S. Department of Health and Human Services rulemaking updating Title 42 of the Code of Federal Regulations, part 34 (42 CFR 34).  

--------------------------------------------
CHAPTER 7:

A. Physical or Mental Disorders with Associated Harmful Behavior​ [1]​Applicants who have physical or mental disorders and harmful behavior associated with those disorders are inadmissible.​ [2] The inadmissibility ground is divided into two subcategories:​
​•Current physical or mental disorders, with associated harmful behavior. ​
​
•Past physical or mental disorders, with associated harmful behavior that is likely to recur or lead to other harmful behavior. ​
​There must be both a physical or mental disorder and harmful behavior to make an applicant inadmissible based on this ground. Neither ​harmful behavior nor a physical or ​mental disorder alone renders an applicant inadmissible on this ground. Harmful behavior is defined as behavior that may pose, or has posed, a threat to the property, safety, or welfare of the applicant or others.​
​
A physical disorder is a currently accepted medical diagnosis as defined by the current edition of the Manual of International Classification of Diseases, Injuries, and Causes of Death published by the World Health Organization or by another authoritative source as determined by the Director.​ [3] Officers should consult the Technical Instructions for additional information, if needed.​
​A mental disorder is a currently accepted psychiatric diagnosis, as defined by the current edition of the Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association or by another authoritative source as determined by the Director.​ [4] Officers should consult the Technical Instructions for additional information, if needed.​
​Under the Technical Instructions, a diagnosis of substance abuse/addiction for a substance that ​is not listed​ in Section 202 of the Controlled Substance​s​ Act (with current associated harmful behavior or a history of associated harmful behavior judged likely to recur) is classified as a mental disorder.​ [5]
​Under prior Technical Instructions and the July 20, 2010 or older versions of the form, these conditions were summarized under the drug abuse/addiction part of the form. An officer, however, should not find an applicant inadmissible for “drug abuse/addiction” if a non-controlled substance is involved.​
​
B. Relevance of Alcohol-Related Driving Arrests or Convictions​​
1. Alcohol Use and Driving​
​Alcohol ​is not listed​ in Section 202 of the Controlled Substances Act.​ [6] Therefore, alcohol use disorders ​are treated​ as a physical or mental disorder for purposes of determining inadmissibility. As a result, an applicant with an alcohol use disorder will not be deemed inadmissible unless there is current associated harmful behavior or past associated harmful behavior likely to recur. The harmful behavior must be such that it poses, has posed, or is likely to pose a threat to the property, safety, or welfare of the applicant or others. ​
​In the course of adjudicating benefit applications, officers frequently encounter criminal histories that include arrests and/or convictions for alcohol-related driving incidents, such as DUI (driving under the influence) and DWI (driving while intoxicated). These histories may or may not rise to the level of a criminal ground of inadmissibility.​ [7] A record of criminal arrests and/or convictions for alcohol-related driving incidents may constitute evidence of a health-related inadmissibility as a physical or mental disorder with associated harmful behavior.​
​Operating a motor vehicle under the influence of alcohol is clearly an associated harmful behavior that poses a threat to the property, safety, or welfare of the applicant or others. Where a civil surgeon’s mental status evaluation diagnoses the presence of an alcohol use disorder (abuse or dependence), and where there is evidence of harmful behavior associated with the disorder, a Class A medical condition should be certified on ​Form I-693​. ​
2. Re-Examination​s​ ​

​Requesting ​Re-Examinations​
​Some applicants may fail to report, or may underreport, alcohol-related driving incidents in response to the civil surgeon’s queries. Where these incidents resulted in an arrest, they may be subsequently revealed in the criminal history record resulting from a routine fingerprint check. Consequently, a criminal record printout revealing a significant history of alcohol-related driving arrests may conflict with the medical examination report that indicates no alcohol-related driving incidents were reported to or evaluated by the civil surgeon.​
​In such an instance, an officer may require the applicant to be re-examined. The re-examination would be limited to a mental status​ ​evaluation specifically considering the record of alcohol-related driving incidents. On the ​Request for Evidence (​RFE​)​, officers should use the following language: “Please return to the civil surgeon for purposes of conducting a mental status evaluation specifically considering the record of alcohol-related driving incidents.”​
​Upon re-examination, the civil surgeon may refer the applicant for further evaluation to a psychiatrist or to a specialist in substance-abuse disorders as provided for under the Technical Instructions. After such referral, the civil surgeon will determine whether a Class A medical condition exists and amend the ​Form I-693​ accordingly. The determination of a Class A condition is wholly dependent on the medical diagnosis of a designated civil surgeon.​ ​
​
Re-Examination for​ Significant Criminal Record of Alcohol-Related Driving Incidents​
​Only applicants with a significant criminal record of alcohol-related driving incidents that were not considered by the civil surgeon during the original medical examination should be referred for re-examination. ​
​The actual criminal charges for alcohol-related driving incidents vary among the different states. A significant criminal record of alcohol-related driving incidents includes:​
​•One or more arrests/convictions for alcohol-related driving incidents (DUI/DWI) while the driver’s license was suspended, revoked, or restricted at the time of the arrest due to a previous alcohol-related driving incident(s).​
​•One or more arrests/convictions for alcohol-related driving incidents where personal injury or death resulted from the incident(s).​
​•One or more convictions for alcohol-related driving incidents where the conviction was a felony in the jurisdiction in which it occurred or where a sentence of incarceration was actually imposed.​
​•One arrest/conviction for alcohol-related driving incidents within the preceding ​5​ years.​ [8]
​​•Two or more arrests/convictions for alcohol-related driving incidents within the preceding ​10​ years.​ [9]
​
If the officer finds that the criminal record appears to contradict the civil surgeon’s finding in the medical examination report, then the officer should request a re-examination.​
​
Example:​ An applicant’s criminal record shows that she was convicted for DWI-related vehicular manslaughter. However, the medical examination report reflects that no Class A or B physical or mental disorder was found. In this case, the officer should request a re-examination because the medical examination report finding should have reflected that the applicant has a history relating to an alcohol-related driving incident that could indicate a physical or mental disorder with associated harmful behavior. ​
​

3. Determination Based on Re-Examination​​

Upon completion of the re-examination, the officer should determine whether the applicant is inadmissible. If the civil surgeon annotated a Class A condition, the applicant is inadmissible. If no Class A condition is certified by the civil surgeon, the officer may not determine that the applicant is inadmissible. In exceptional cases, the officer may seek review of the civil surgeon’s determination from CDC. ​
​
If the applicant is inadmissible, he or she may file an application for waiver of inadmissibility.​ [10] ​
​
C. Relevance of Other Evidence​​
The guidance relating to alcohol-related driving arrests or convictions described above applies to any similar scenario where the record of proceeding contains evidence that may indicate inadmissibility due to a mental or physical disorder with associated harmful behavior that was not considered by the civil surgeon in the original medical examination. Such evidence includes, but is not limited to: ​
​
•A prior finding of inadmissibility due to a mental disorder. ​
​
•A history of institutionalization for a mental disorder. ​
​
•A criminal history other than ​drunk​ driving arrests/convictions, such as assaults and domestic violence, in which alcohol or a psychoactive substance was a contributing factor. ​
​
•Any other evidence that suggests an alcohol problem.​
​
•Other criminal arrests where there is a reasonable possibility of a mental disorder as a contributing factor. ​
​
Accordingly, where the record of proceeding available to the officer contains evidence suggestive of a mental disorder, and the ​Form I-693​ medical report does not reflect that the evidence was considered by the civil surgeon, the applicant must be required to undergo a mental status re-examination by a civil surgeon specifically addressing the adverse evidence that may not have initially been revealed to the civil surgeon.​
​
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CHAPTER 8:

A. Drug Abuse or Drug Addiction​​Applicants who ​are found​ to be drug abusers or addicts are inadmissible.​ [1] 

Drug abuse and drug addiction ​are current substance-use disorders or substance-induced disorders of a controlled substance listed in Section 202 of the Controlled Substance​s​ Act, as defined in the Diagnostic and Statistical Manual of Mental Disorders (DSM) published by the American Psychiatric Association or by another authoritative source as determined by the Director.​ [2] ​
​In 2010, ​the Centers for Disease Control and Prevention (​CDC​)​ changed the Technical Instructions on how a civil surgeon determines whether an applicant is a drug abuser or drug addict.​ [3] The civil surgeon must now make this determination according to the DSM as specified in the Technical Instructions.​ [4] ​
​If the applicant is classified as a drug abuser or addict, the applicant can apply again for an immigration benefit if his or her drug abuse or addiction is in remission. Remission is now defined by DSM criteria, and no longer by a set timeframe as it was under previous Technical Instructions.​ [5] In order for an applicant’s drug abuse or addiction to be classified as in remission, the applicant must return to a civil surgeon for a new assessment. ​
​If the officer has reason to question the completeness or accuracy of the medical examination report, the officer should ask CDC to review the ​medical report before sending a Request for Evidence​ ​(​RFE​)​.​
​Most applicants who are found to be drug abusers or addicts are ineligible for a waiver; the availability depends, however, on the immigration benefit the ​applicant seeks.​ [6] ​
B. Part of ​Form I-693​ Addressing Drug Abuse or Drug Addiction​

​The civil surgeon must check the appropriate findings box on the medical examination report. The civil surgeon should also either annotate the findings in the remarks section or attach a report, if the space provided is not sufficient. However, the officer should not RFE simply because the civil surgeon has omitted the remarks or failed to attach a report. ​
-------------------------------

CHAPTER 11: INADMISSIBILITY DETERMINATION

A. Civil Surgeon or Panel Physician​ ​Documentation​​
If a “Class A condition” is noted on the medical form, it is conclusive evidence that the applicant is inadmissible. The Class A annotation may also indicate that an applicant could be inadmissible on other grounds of inadmissibility. For example, “harmful behavior” associated with a physical or mental disorder, or illegal drug use, may have resulted in criminal convictions that make an applicant inadmissible under ​INA 212(a)(2)​. However, a criminal conviction should be supported by conviction records or similar evidence, and not just the medical examination report.​ [1] ​
​
If a civil surgeon or panel physician only annotates a “Class B condition” (per HHS regulations), the applicant is ​never​ inadmissible on health-related grounds. The officer should remember that if the civil surgeon or panel physician indicates on the ​Form I-693​ that a former Class A condition is now a Class B condition, the applicant is no longer inadmissible. However, a Class B condition may indicate that the applicant could be inadmissible on other grounds because of the condition, such as public charge.​ [2] ​
​
The officer may encounter medical documentation that is not fully completed. In this c​ase, the officer should issue a Request for Evidence​ ​(​RFE​)​. If the physician fails to properly complete the form in response to the RFE, the applicant has not established that he or she is clearly admissible to the United States.​ [3] ​
​
B. Applicant’s Declaration​​
If the applicant indicates that he or she may be inadmissible based on a medical reason, the officer must order a medical examination of the applicant. Based on the results of that medical exam, the officer should ascertain whether the applicant actually has a Class A, Class B, or no condition at all that is relevant to the applicant’s admissibility. The applicant should not be found inadmissible unless the medical examination confirms the presence of a Class A medical condition.​
​
C. Other Information​ ​​
Even if the civil surgeon or panel physician did not annotate a Class A or B condition in the medical documentation, or if the applicant was not required to undergo a medical examination, the officer may order or reorder an immigration medical examination at any time if he or she has concerns as to an applicant’s inadmissibility on health-related grounds. ​
​
The concern should be based on information in the A-file, information that is revealed by the applicant or another applicant during an interview, or information revealed during a background investigation. ​
​

D. Other Grounds ​of ​Inadmissibility​​
1. General​ ​Considerations​​
Where relevant, the information contained in the medical examination can be used to determine whether other grounds of inadmissibility may apply. For instance, health is one factor to consider when determining if someone is inadmissible on public charge grounds. This factor must, however, be considered in light of all other factors specified by law​ [4] and in standard public charge guidance.​ [5] ​
​
2. Criminal ​Grounds​​
An applicant may be inadmissible on criminal grounds if he or she has admitted to committing certain controlled substance violations.​ [6] ​An applicant may acknowledge to a civil surgeon or a panel physician that he or she has used a controlled substance, which the physician then may annotate on the medical documentation. ​
​
USCIS does not consider this acknowledgement, in and of itself, a valid admission that would make an applicant inadmissible on criminal grounds.​ [7]However such an acknowledgment of drug use may open a line of questioning to determine c​riminal inadmissibility. USCIS o​fficers should find that an applicant has made a valid “admission” of a crime only when the admission is made in accordance with the requirements outlined by the Bo​ard of Immigration Appeals​.​[8] ​
​
E. Privacy Concerns​
​An officer should take great care to regard the privacy of the applicant. The officer should generally not discuss the applicant’s medical issues with applicants other than the applicant, his or her counsel, immigration officers, or other government officials​ [9] who clearly have a need to know the information.​

​​The officer should not directly contact a civil surgeon to discuss an applicant’s inadmissibility or medical issues. If the officer has any concerns that cannot be resolved by reviewing the evidence in the record, the officer should issue an RFE.​
​

US Department of State Consular Affairs issued substantial new guidance on the E-3 work visa for Australian Professionals.

9 FAM 402.9-8  REQUIREMENTS FOR E-3 VISAS
9 FAM 402.9-8(A)  Background
(CT:VISA-1;   11-18-2015)
(Previous Location: 9 FAM 41.51 N16.1  CT:VISA-1586;   10-14-2010)
a. The E-3 visa classification ("treaty alien in a specialty occupation") was the result of Public Law 109-13, entitled "The Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005" (May 11, 2005).  The new law added paragraph (iii) to INA 101(a)(15)(E), establishing a visa classification for Australians in specialty occupations.
b. The law allows for the temporary entry of Australian professionals to perform services in a “specialty occupation” for a United States employer.  The temporary entry of nonimmigrants in specialty occupations is provided for at Section 501 of Public Law 109-13.  The law establishes a new category of temporary entry for nonimmigrant professionals, the E-3 category.  Unlike the current E-1 and E-2 visas, the E-3 visa is not limited to employment that is directly related to international trade and investment.  Subject to the requirements discussed herein, E-3 visa holders are eligible to work for any employer in the United States.  Dependent spouses and children accompanying or following to join are also eligible for temporary entry.
c.  To qualify for an E-3 visa, an Australian must:
(1)  Present to you an approved Labor Condition Application (LCA) issued by the Department of Labor (DOL);
(2)  Demonstrate to you that the prospective employment meets the standard of being “specialty occupation employment” (see 9 FAM 402.9-8(E) below);
(3)  Show you that the necessary academic qualifications for the job have been met (see 9 FAM 402.9-8(H));
(4)  Convince you that the proposed stay in the United States will be temporary (see 9 FAM 402.9-4(C); and
(5)  Provide evidence of a license or other official permission to practice in the specialty occupation if required as a condition for the employment sought (see 9 FAM 402.9-8(H)).  In certain cases, where such license or other official permission is not required immediately, an alien must demonstrate that he or she will obtain such licensure or permission within a reasonable period of time following admission to the United States.
d. A maximum of 10,500 E-3 visas can be issued annually.
9 FAM 402.9-8(B)  What is Needed to Qualify for a Specialty Occupation Visa
(CT:VISA-185;   09-26-2016)
Principals:  A treaty alien in a specialty occupation must meet the general academic and occupational requirements for the position pursuant to INA 214(i)(1).  In addition to the nonimmigrant visa (NIV) application, the following documentary evidence must be submitted in connection with an application for an E-3 visa:
(1)  A completed Form ETA-9035-E, Labor Condition Application for Nonimmigrant Workers (formerly, Labor Condition Application for H-1B Nonimmigrants), certified by the Department of Labor (DOL). 
(2)  Evidence of academic or other qualifying credentials as required under INA 214(i)(1) and a job offer letter or other documentation from the employer establishing that upon entry into the United States the applicant will be engaged in qualifying work in a specialty occupation and that the alien will be paid the actual or prevailing wage referred to in INA 212(t)(1).  A certified copy of the foreign degree and evidence that it is equivalent to the required U.S. degree could be used to satisfy the “qualifying credentials” requirement.  Likewise, a certified copy of a U.S. baccalaureate or higher degree, as required by the specialty occupation, would meet the minimum evidentiary standard.
(3)  In the absence of an academic or other qualifying credential(s), evidence of education and experience that is equivalent to the required U.S. degree.
(4)  Evidence establishing that the applicant’s stay in the United States will be temporary.  (See 9 FAM 402.9-4(C) and 9 FAM 402.9-4(H).)
(5)  A certified copy of any required license or other official permission to practice the occupation in the state of intended employment if so required or, where licensure is not necessary to commence immediately the intended specialty occupation employment upon admission, evidence that the alien will be obtaining the required license within a reasonable time after admission.
(6)  Evidence of payment of the Machine Readable Visa (MRV) fee.
9 FAM 402.9-8(C)  Form ETA-9035 Labor Condition Application (LCA) from the Department of Labor (DOL) Required
(CT:VISA-185;   09-26-2016)
a. Filing Form ETA-9035-E:  For all prospective E-3 hires, employers must submit a Labor Condition Application (LCA) to the Department of Labor (DOL) containing attestations relating to wages and working conditions.
b. LCAs for E-3 cases must be submitted electronically via the Department's iCERT Portal System.  The iCERT Portal System is available at: http://icert.doleta.gov.  The only two exceptions for electronic filing are physical disability and lack of internet access preventing the employer from filing electronically.  Employers with physical disabilities or lack of internet access preventing them from filing electronic applications may submit a written request for special permission to file their LCAs via U.S. mail.  Such requests MUST be made prior to submitting an application by mail and should be addressed to:
Administrator, Office of Foreign Labor Certification
Employment Training Administration
U.S. Department of Labor
Room C-4312
200 Constitution Avenue, NW
Washington, DC 20210
c.  The Form ETA-9035 used for requests by mail and Form ETA-9035E used for electronic submissions are the same form.  The current ETA-9035/9035E is six to seven pages long.  Page 1 (numbered page 1 of 1) includes three attestations for the employer to complete in the electronic filing system.  Pages 2-6 (numbered page 1 of 5 through page 5 of 5) contain Sections A through O, and the 7th page is optional for any Addendum to Section G to list additional worksite details.
d. All E-3 LCAs will contain case numbers in the following format:  I-203-xxxxx-xxxxxx.  All LCAs that were submitted online will display the case number, case status and period of employment on the bottom of each page.  Section K on page 4 should contain the signature of the employer.  If there is no employer signature, the LCA is not valid for processing and consular staff should 221(g) the case until a signed copy of the LCA has been submitted.  In section M of the LCA, the signature block will contain the validity dates of the certification, the Department of Labor’s signature as “Certifying Officer” (not a specific official's name), the determination date, the case number, and the case status as “Certified.”  A mailed LCA likely would not have a computer-generated footer at the bottom of the form with the case number, case status, and period of employment.  A mailed-in LCA would likely also be completed in a different computer font or contain handwritten information.
e. Acceptance of Form ETA-9035 by Posts:  For mailed-in applications, DOL faxes the LCA back to the employer after approval.  Applications approved online are presented on-screen to the employer at the completion of the filing process in the form of a PDF/.pdf document.  Consequently the applicant will be presenting either the initial faxed LCA, a printed PDF/.pdf document, or a copy of either of these; there will be no “original” document that will be presented.  You must check to make sure the approval date of the LCA is later than September 2, 2005 (the effective date of the Department of State's E-3 regulatory publication).
f.  Verifying Authenticity of the E-3 LCA:  Your acceptance of the LCA certification is discretionary.  If you are not satisfied that the LCA being presented is authentic, you should suspend action on the case (INA 221(g)) and verify the LCA with the Department of Labor (DOL). 
g. DOL posts html versions of all certified E-3 LCAs on the Labor Certification Registry website.  For additional questions concerning the authenticity of a particular LCA, you should send requests to the LCA Help Desk at [email protected]., or by mail to U.S. Department of Labor, Employment and Training Administration, Office of Foreign Labor Certification, Chicago National Processing Center, 11 West Quincy Court, Chicago, IL 60604-2105.
h. Petition Filing with DHS Not Required: An employer of an E-3 treaty alien in a specialty occupation is not required to file a petition with DHS.  Instead, a prospective employee will present evidence for classification, including the approved Form ETA-9035-E, directly to you at the time of visa application.
9 FAM 402.9-8(D)  Definition of Specialty Occupation
(CT:VISA-185;   09-26-2016)
The E-3 category provides for the issuance of visas solely to E-3 qualifying nationals performing employment within a “specialty occupation.”  The definition of “specialty occupation” is one that requires:
(1)  A theoretical and practical application of a body of specialized knowledge; and
(2)  The attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.  Note: In determining whether an occupation qualifies as a "specialty occupation," follow the definition contained at INA 214(i)(1) for H-1B nonimmigrants and applicable standards and criteria determined by the Department of Homeland Security (DHS) and legacy Immigration and Naturalization Service (legacy INS).  See 9 FAM 402.10-5(E).
9 FAM 402.9-8(E)  Determining “Specialty Occupation” Qualification
(CT:VISA-185;   09-26-2016)
Although the term “specialty occupation” is specifically defined at INA 214(i)(1), and further elaborated upon in DHS’s regulations (8 CFR 214.2(h)(4)(iii)(A)), consular determinations of what qualifies as a “specialty occupation” will often come down to a judgment call by the adjudicating consular officer.  You must determine whether the job itself falls within the definition of “specialty occupation,” and also examine the alien’s qualifications, including his or her education and experience.  You should consider the available offer of employment and the information obtained during the interview, and then on the basis of this information, make a reasoned evaluation whether or not the offer of employment is for a “specialty occupation.”  Then you must be sure that the applicant has the required degree, or equivalency of experience and education, to adequately perform the stipulated job duties.
9 FAM 402.9-8(F)  Referring Questionable Cases to CA/VO/L/A and/or the Kentucky Consular Center (KCC)
(CT:VISA-185;   09-26-2016)
a. Request additional assistance/guidance from CA/VO/L/A if significant doubt remains regarding the E-3 alien’s work experience, or if the proposed employment does not appear to meet the requirements for “specialty occupation” as described above in 9 FAM 402.9-8(E).  The Department of Homeland Security's Bureau of U.S. Customs and Immigration Services (USCIS) has significant experience in making "specialty occupation" determinations related to adjudicating H-1B cases, so the advisory opinions division will work closely with USCIS on issues you send in for opinion.
b. If you have concerns about information regarding or provided by the employer (e.g., you doubt that the employer can pay the prevailing wage, or you do not believe the business is large enough to support additional employees), please email KCC at [email protected] with your concerns, providing as much factual detail as possible.  KCC will review the information, investigate, and attempt to provide you with information to address those concerns.
9 FAM 402.9-8(G)  Intent to Depart Upon Termination of Status
(CT:VISA-1;   11-18-2015)
(Previous Location: 9 FAM 41.51 N16.6  CT:VISA-771;   10-03-2005)
a. Temporary entry for treaty aliens in specialty occupations is the same standard used for treaty traders/investors.
b. The alien’s expression of an unequivocal intent to return when the E-3 status ends is normally sufficient, in the absence of specific evidence that the alien’s intent is to the contrary.
c.  The applicant must satisfy you that he or she plans to depart the United States upon termination of status; however, he or she does not need to establish intent to proceed to the United States for a specific temporary period of time nor does an applicant for an E-3 visa need to have a residence in a foreign country that the applicant does not intend to abandon.
d. The alien may sell his or her residence and move all household effects to the United States.
e. An E-3 applicant may be a beneficiary of an immigrant visa (IV) petition filed on his or her behalf.
9 FAM 402.9-8(H)  E-3 Licensing Requirements
(CT:VISA-1;   11-18-2015)
(Previous Location: 9 FAM 41.51 N16.7  E-3 CT:VISA-771;   10-03-2005)
a. An E-3 alien must meet academic and occupational requirements, including licensure where appropriate, for admission into the United States in a specialty occupation.  If the job requires licensure or other official permission to perform the specialty occupation, the applicant must submit proof of the requisite license or permission before the E-3 visa may be granted.  In certain cases, where such a license or other official permission is not immediately required to perform the duties described in the visa application, the alien must show that he or she will obtain such licensure within a reasonable period of time following admission to the United States.  However, as illustrated in the example in paragraph b(4) below, in other instances, an alien will be required to present proof of actual licensure or permission to practice prior to visa issuance.  In all cases, an alien must show that he or she meets the minimum eligibility requirements to obtain such licensure or sit for such licensure examination (e.g., he or she must have the requisite degree and/or experience).  Even when not required to engage in the employment specified in the visa application, a visa applicant may provide proof of licensure to practice in a given profession in the United States together with a job offer letter, or other documentation, in support of an application for an E-3 visa.
b. The following examples are illustrative:
(1)  An alien is seeking an E-3 visa in order to work as a law clerk at a U.S.-based law firm.  The alien may, if otherwise eligible, be granted an E-3 visa if it can be shown that the position of unlicensed law clerk is a specialty occupation, even if he or she has not been admitted to the bar.
(2)  An alien has a job offer from a law firm promising him or her a position as an associate if the alien passes the bar exam.  The application indicates that the position in question meets the definition of a specialty occupation.  The alien may apply for an E-3 visa even if he or she will not be immediately employed in the position offered, but will be studying for the bar examination upon admission to the United States.  You may issue the visa if you are satisfied that the alien will be taking steps to obtain bar admission within a reasonable period of time following admission to the United States.  What constitutes a reasonable period of time will depend on the specific facts presented, such as licensure examination schedules and bar preparation course schedules.
(3)  An alien does not have a job offer, but wishes to study for the bar upon admission to the United States with the hope of finding a position at a United States-based law firm.  The alien would not be eligible for E-3 classification, since he or she would not be coming to work in a specialty occupation.  This person would be required to obtain another type of visa, such as a B-1, in order to study for the bar in this country.
(4)  An alien has an offer for employer with a law firm as a litigator, and is to begin working within two weeks of entry into the United States.  The applicant must demonstrate that he or she has been admitted to the appropriate bar, or otherwise has obtained permission from the respective jurisdiction or jurisdictions where he or she intends to practice to make court appearances.
9 FAM 402.9-8(I)  Numerical Limitation on E-3 Visas
(CT:VISA-185;   09-26-2016)
a. Only E-3 principals who are initially being issued E-3 visas for the first time, or who are otherwise  obtaining E-3 status (in the United States) for the first time,are subject to the 10,500 annual numerical limitation provisions of INA 214(g)(11)(B).  Consequently, spouses and children of E-3 principals, as well as returning E-3 principals who are being issued new E-3 visas for continuing employment with the original employer, are exempt from the annual numerical limit (see b. and c. immediately below).
b. An E-3 principal who is applying for a new visa following the expiration of the initial E-3 visa, or who is applying for a visa after initially obtaining E-3 status in the United States, is not subject to the annual E-3 numerical limit, provided it is established to your satisfaction that there has been uninterrupted continuity of employment.  “Uninterrupted continuity of employment” means that the applicant has worked, and continues to work, for the U.S.-based employer who submitted the original Labor Condition Application (LCA) and offer of employment.  To ensure that such applicants are not counted against any subsequent numerical limit, returning E-3 principals will be identified by the visa code “E-3R” (with “R” representing the status of “returning”).
c.  To ensure that the spouse and children of E-3 principals are not counted against the numerical limit, they will be identified by the visa code “E-3D” (with “D” representing the status of “dependent”).
d. At the end of each fiscal year, any unused E-3 numbers are forfeited; such visa numbers do not carry over to the next fiscal year.
e. The Department of State will keep count of the number of E-3 visas issued, and of changes of status to E-3 in the United States as reported by the Department of Homeland Security (DHS).  If it appears that the 10,500 annual numerical limits will be reached in any fiscal year, the Department of State will instruct posts to cease E-3 issuances for that fiscal year.
9 FAM 402.9-8(J)  Part-Time Employment by E-3 Applicants
(CT:VISA-185;   09-26-2016)
An E-3 worker may work full or part-time and remain in status based upon the attestations made on the LCA.  Section B.4 on the LCA provides the option to request part time employment and DOL approves LCAs for part-time employment.  Although nothing is specifically stated in the law/regulation about full-time employment for E-3s, you will need to evaluate the public charge ramifications for any E-3 applicant planning on coming to the United States as a part-time employee.
9 FAM 402.9-8(K)  Applicants with Multiple LCAs
(CT:VISA-185;   09-26-2016)
a. If an applicant presents more than one valid LCA, consular officers should evaluate each LCA on its own merits.  The applicant will have to qualify for each LCA separately, and each proposed employment situation must overcome public charge concerns on its own.  Clearly indicate in the case remarks which LCAs and positions the applicant qualifies for.
b. Multiple annotations: You should annotate the visa with the employer's name, LCA case number and LCA issuance date for each employer.  You may need to use abbreviations in order to make more than one set of annotations fit onto the visa foil.  If there is not enough room on the visa foils to add all of the required annotations contact VO/F for additional guidance.
c. If an applicant presents multiple LCAs for E-3 and E-3R (returning E-3) positions at the same time, and is approved for multiple positions, only one visa should be issued.  The visa should be issued for an E-3 position to ensure that the visa is counted towards the annual numerical limit.  The visa should be annotated with the employer's name, LCA case number and LCA issuance date for each E-3 position AND the employer's name, LCA case number and LCA issuance date for each E-3R position.  If there is not enough room on the visa foils to add all of the required annotations contact VO/F for additional guidance.
9 FAM 402.9-8(L)  Considerations in Processing E-3 Visas
(CT:VISA-185;   09-26-2016)
a. Validity of Issued Visa:  The validity of the visa should not exceed the validity period of the LCA.  The Department of State and DHS have agreed to a 24-month maximum validity period for E-3 visas.
b. Initial Authorized Period of Stay for E-3 Applicants: E-3 applicants are admitted for a two-year period renewable indefinitely, provided the alien is able to demonstrate that he or she does not intend to remain or work permanently in the United States.
c.  Fees: Other than the normal visa-related Machine Readable Visa (MRV) fees, there is no other fee associated with the issuance of an E-3 visa.
d. Reports of Cancelled or Revoked E-3 Visas: In the event an E-3 visa is cancelled or revoked prior to the applicant’s entry into the United States, a report must be sent to CA/VO/DO/I explaining the circumstances attendant to the non-use of the E-3 number.  In cases where the E-3 number has not been used, it will be added back into the remaining pool of unused E-3 visa numbers for that fiscal year.
e. Annotation of E-3 Visas:  Annotate E-3 visas of the principal applicant with the name of the employer, the ETA case number (found at the bottom of each page of the Form ETA-9035), and the LCA’s issuance date (the "Determination Date" listed in part M. on page 5 of the Form ETA-9035.)  Annotate E-3D visas for derivatives of the principal applicant with the name of the principal applicant, the name of the employer, the ETA case number and the LCA's issuance date.
9 FAM 402.9-8(M)  Special Note about H-1B Petitions
(CT:VISA-185;   09-26-2016)
When the H-1B numerical cap is reached before the end of the fiscal year, it is likely that there will be numerous Australian H-1B applicants who will have approved Labor Condition Application’s (LCA) but whose petitions for H-1B status are returned unapproved by the DHS for lack of an available H-1B visa number.  Currently, you are not permitted to accept LCAs approved based upon H-1B-related offers of employment.  Rather, the United States employer must submit a new LCA request to DOL and receive a separate E-3-based LCA approval for any employee possessing a previously approved H-1B-based LCA.
9 FAM 402.9-9  SPOUSE AND CHILDREN OF E VISA ALIENS
(CT:VISA-185;   09-26-2016)
a. Entitled to Derivative Status:  The spouse and children of an E visa alien accompanying or following to join the principal alien are entitled to derivative status in the same classification as the principal alien.  The nationality of the spouse and children of an E visa applicant is not material.  The spouse and children of an E visa alien receive the same visa validity and number of entries, and are required to pay the same reciprocity fee, if applicable, as the principal alien, as listed in the reciprocity schedule for the principal alien's country of nationality.
b. Spouses and Children:  To establish qualification for E-3 classification as the spouse or child of an E-3 alien, you may accept whatever reasonable evidence is persuasive to establish the required qualifying relationship.  The presentation of a certified copy of a marriage or birth certificate is not mandatory if you are otherwise satisfied that the necessary relationship actually exists.
c.  Spouse and Children of E-3 Aliens Not Subject to Numerical Limitation: The spouse and children of E-3 principals are classifiable as E-3’s, using the visa code E-3D.  They are not counted against the 10,500 annual numerical limitation described at INA 214(g)(11)(B).
d. Employment by Spouse of E Visa Aliens: INA 214(e)(6) permits the spouse (but not other dependents) of a principal E nonimmigrant to engage in employment in the United States.  The spouse of a qualified E nonimmigrant may, upon admission to the United States, apply with the DHS for an employment authorization document, which an employer could use to verify the spouse’s employment eligibility.  Such spousal employment may be in a position other than a specialty occupation.

​See at:
https://fam.state.gov/FAM/09FAM/09FAM040209.html
 

If you are scheduled to attend an interview in one of the USCIS field offices in the United States (most commonly, an adjustment of status or "green card" interview), and if you don't speak and/or understand English fluently, it would be wise to bring an interpreter with you.

An interpreter should be someone who is sufficiently fluent in both languages and who is competent to interpret from one language to another (English and your native language) -- not like the guy in the picture who only pretends to interpret. 

An interpreter doesn't have to be a certified or professional interpreter.

Most important qualifications of an interpreter are the following: 

an interpreter is someone who is impartial and unbiased, not prejudiced, not interested in the outcome of your interview, who is not your attorney or a lawyer, or other legal representative, or your attorney's paralegal, who is over 18 years of age, and who is not a witness in your case. 

Some derivative beneficiaries may not be allowed to serve as an interpreter (for example, a spouse or a child), unless there is a "good cause" to excuse this restriction..

Before an interpreter is allowed to serve as an interpreter, a USCIS officer will have to make a determination and have him sign a Form G-1256. 

Please keep in mind that an interpreter may hear or learn some personal and confidential things about you during the interview, and you might consider a professional impartial interpreter rather than a friend, a relative, a co-worker or an acquaintance if only because of confidentiality considerations.

Your attorney, paralegal or other legal representative can't be allowed to interpret during the interview, under the USCIS guidance (because they are not impartial to the outcome of the interview and have your interests in mind).

Please keep in mind that USCIS has no obligation to provide a "free interpreter" during the interview with some exceptions (for example, if it's an asylum interview). An applicant has right to have an interpreter present, but the government doesn't have to provide an interpreter for you. If you don't speak and understand English fluently, you should plan in advance and be ready to hire and bring with you a qualified interpreter.

On November 25, 2015, USCIS published this helpful draft of a new memo. This document provides detailed guidance as to who can and can't be an interpreter in USCIS office.

On September 09 2015, USCIS Announces Revised Procedures for Determining Visa Availability for Applicants Waiting to File for Adjustment of Status.

USCIS, in coordination with Department of State (DOS), is revising the procedures for determining visa availability for applicants waiting to file for employment-based or family-sponsored preference adjustment of status. The revised process will better connect USCIS procedures with the US Department of State (DOS) procedures, which are used for foreign nationals who seek to become U.S. permanent residents by applying for immigrant visas at U.S. consulates and embassies abroad.

The Visa Bulletin revisions implement November 2014 executive actions on immigration announced by President Obama and Secretary of Homeland Security Johnson, as detailed in the White House report, Modernizing and Streamlining Our Legal Immigration System for the 21st century, issued in July 2015. 

What is Changing.

Starting October 1, 2015, you will be able to submit your application for adjustment of status or for an immigrant visa before your priority date is current. 

Two charts per visa preference category will be posted in the DOS Visa Bulletin:

• Current priority dates for particular visa categories; and
• The earliest dates for filing application for adjustment of status (earliest dates when applicants may be able to apply).

See October 2015 Visa Bulletin here. However, the priority dates in the Visa Bulletin can retrogress in November. Consult an attorney about your specific case so you won't miss the opportunity of applying earlier.

When filing an application for adjustment of status, I-485, an applicant can concurrently file an application for a work permit and advance parole. This is great news for many immigrants waiting for many years for their priority dates to become current. However, it's a good idea to consult an immigration attorney before applying.

Each month, in coordination with DOS, USCIS will monitor visa numbers and post the relevant DOS Visa Bulletin chart. Applicants can use the charts to determine when to file their Form I-485, Application to Register Permanent Residence or Adjust Status.

To determine whether additional visas are available, USCIS will compare the number of visas available for the remainder of the fiscal year with:

• Documentarily qualified visa applicants reported by DOS;
• Pending adjustment of status applications reported by USCIS; and
• Historical drop off rate (for example, denials, withdrawals, abandonments).

About the Visa Bulletin.

DOS publishes current immigrant visa availability information in a monthly Visa Bulletin. The Visa Bulletin indicates when statutorily limited visas are available to prospective immigrants based on their individual priority date.

• The priority date is generally the date when the applicant’s relative or employer properly filed the immigrant visa petition on the applicant’s behalf with USCIS. If a labor certification is required to be filed with the applicant’s immigrant visa petition, then the priority date is when the labor certification application was accepted for processing by Department of Labor.
• Availability of an immigrant visa means eligible applicants are able to take one of the final steps in the process of becoming U.S. permanent residents. 

Read more here.  

USCIS launched a new interactive webportal myUSCIS. 

See at: https://my.uscis.gov/

USCIS recently introduced another useful webportal, where customers can submit e-request to ask questions about a pending case, report non-delivery of a document (work permit, green card, etc) or official letter (Receipt or Approval Notice, Form I-797), request certain accommodations. I found it to be a very useful tool.

See at: https://egov.uscis.gov/e-Request/Intro.do?locale=en_US

Almost daily, I hear from some of our callers: "I don't need legal consultation, I don't want to hire an attorney. I have only one or two very simple (or quick, or easy) questions, and I want an attorney to answer my questions right now and free of charge because my questions are so simple, quick, and easy!"

I will try to explain why this request doesn't make any sense and how to get proper legal advice.

U.S. immigration law is very complex and constantly changing. There have been no major immigration reforms or amnesties in the past few years (which requires a law to be approved by Congress and signed by the President). However, there have been significant changes introduced by our current and former administrations and the executive branch of the government: executive actions; executive orders of the President; USCIS and DHS memorandums and policy guidance; official and unofficial practice advisories; and changes through our judicial branch (federal and immigration courts), such as, the decisions by the BIA, AAO, Courts of Appeals, US Supreme Court, and even by federal district court judges (for example, an injunction by a federal judge can place on hold an executive order of the President of the United States).

U.S. immigration law is federal in nature and is the same in all states. However, it may apply differently to your situation depending on your background, your place of residence or domicile, US embassy in the country where you apply for a visa, etc.

An experienced immigration attorney may be able to guide you and advise you about specifics, loopholes, various options, and can spot possible problems before they happen, even if it seems to you that your case is pretty straightforward and you have only "one quick question". A seemingly simple or quick question not always can be answered with a simple "yes" or "no" answer. You may not realize it, but a situation may have a lot of hidden issues or variables depending on your venue, court jurisdiction, your factual circumstances, your arrest and criminal record, your family situation and status, prior legal assistance, prior legal actions and applications filed, or even timing, etc.

You can find a lot of useful immigration-related INFORMATION on our Blog. We compiled useful information and links: USCIS forms and fees, case status inquiry, processing times, AR-11 Change of Address, Department of State and NVC, and much more here. Hope you find this information helpful!

To ask basic questions about USCIS immigration forms, filing fees or to inquire about status of your pending case, you can contact USCIS, Department of Homeland Security, by calling their 800 Customer Service Hotline (number is on their website), or send an e-request via a webportal at USCIS website. Case status can be checked online, as well. Immigration courts, U.S. embassies and consulates and National Visa Center each have their own hotlines, call centers or other ways to contact them.

To receive a case-specific legal advice you should talk to a lawyer. Before a lawyer can advise you, we usually email you our confidential immigration questionnaire, and ask you to complete and return it to us. In some cases, we can ask you to email us copies of your immigration forms, paperwork, personal documents. When an attorney reviews your answers to our questionnaire and your documents, it helps her to get to know you, your situation, and decide what legal and/or visa options you shall consider, what are your best chances of obtaining certain visas and immigration benefits, how and when can you bring your family to USA, are you eligible for permanent residency or a green card in the United States, are you eligible to apply for U.S. citizenship, how can your children become U.S. citizens, etc.

It's important that you provide truthful, accurate and complete answers to our questions because an attorney's advice to you is based on information you provide to an attorney. It could be dangerous to give misleading, incomplete or incorrect answers to an attorney.

An attorney or a lawyer is often called "a counselor in law". It means that an attorney counsels and advises you, helps you to understand your situation better, anticipates any possible future issues or complications, offers guidance, and a long-term strategy and planning for yourself and your family.

Legal advice is never a simple "yes" or "no" answer, it's never "use this form"  or "this is the link where you can find all information and all answers you need". Legal advice or consultation is like going to see a doctor. A doctor will ask you questions, take your vitals and administer necessary tests, then she will be able to diagnose you and offer you an appropriate treatment plan. The same is true about work of a good and ethical attorney. An attorney will have to ask you a number of questions, review your documents and paperwork, and only then she will be able to advise you, and offer you guidance and counsel.

In order to avoid mistakes and future complications, it's smart to consult an attorney before starting any legal, immigrant or visa process. Consultation with knowledgeable and ethical attorney should serve as a preventative measure and a way to establish a roadmap and plan your future.

In over twelve years of practice as an immigration attorney in the United States, I have come across of many unfortunate individuals who got themselves into trouble after reading and following wrong advice on internet forums, listening to their friends, co-workers, relatives and neighbors advice, or paying to complete their "paperwork" to an unlicensed "immigration consultant", or "notario", or "tax preparer", or somebody else who speaks their native language in their immigrant community but has no proper training and is not a licensed attorney. In some of these cases, individual's chances of living in USA legally can be permanently destroyed. Some people can become permanently banned from the United States, no matter how many close family members (wife, kids, parents) and other ties they have in USA. Immigration law is very complex and unforgiving, and non-compliance, fraud or misrepresentation could bring consequences more severe than penalties in an average criminal case. Where a convicted criminal can usually expect to be released from prison after a number of months or years and be reunited with his family, a person who was deported and permanently banned from USA may never be able to reunite with his family and loved ones in the United States. Lack of knowledge or bad advice is not an excuse in immigration law. "Simple mistakes" in immigration law context could be costly and often irreversible.

Do yourself a favor and consult a knowledgeable immigration attorney before filing any applications or petitions with the USCIS Department of Homeland Security, or before submitting any visa applications online. You can also schedule a consultation to seek a second opinion, if not sure that your current or former attorney's advice is correct as applies to you. When you have questions or need legal advice you can email us to schedule a consultation. We will be glad to help you.

US Dept of State issued a new policy guidance for immigrant visa applicants who were unable to use an Immigrant Visa (IV) during its validity period. 

9 FAM 42.74 N1 ISSUING REPLACEMENT VISA DURING VALIDITY OF ORIGINAL VISA (CT:VISA-2270; 03-31-2015) 

a. If you are satisfied that an applicant will be or was unable to use an immigrant visa (IV) during its validity period because of reasons beyond the applicant’s control and for which the applicant is not responsible then you may issue a replacement visa with the originally allocated visa number within the same fiscal year even though the visa has not yet expired. 

b. You should recall and cancel the originally-issued visa and collect once again the appropriate IV application processing fee (including the Diversity Visa Lottery Fee for a DV applicant), unless the applicant was unable to use the visa as a result of action by the U.S. Government over which the alien had no control and for which the alien was not responsible. 

c. An applicant who will be or was unable to use an IV during its validity period because of reasons within the applicant's control can submit a new visa application if the petition has not been revoked and if the basis for immigration still exists (i.e., familial relationship). 
This also applies for new IV applications outside of the original IV's fiscal year of issuance. 

9 FAM 42.74 N1: 
http://www.state.gov/documents/organization/87915.pdf