Immigration Blog Luba Smal Attorney at Law - Smal Immigration Law Office

USCIS Service Centers Contact Email Addresses Discontinued as of January 21, 2019

1/7/2019

As of January 21, 2019, USCIS Discontinues Case-Specific Assistance Via Service Center Email
Instead, USCIS is directing people to its online self-help tools and the USCIS Contact Center. Call the USCIS Contact Center at 800-375-5283 or submit an online request here.

The service center email addresses being discontinued are:

California Service Center: [email protected]
Vermont Service Center: [email protected]
Nebraska Service Center: [email protected]
Potomac Service Center: [email protected]
Texas Service Center: [email protected]

More information is here.

How to Apply for a Fiancee K-1 Visa

12/17/2018

What is a fiancée K-1 and K-2 visa? Who can apply? What is the process, timeframes and the costs?
The fiancée K-1 nonimmigrant visa is for the foreign national fiancée of a United States citizen. Only a U.S. citizen can petition for his or her foreign fiancée. A U.S. citizen can file a fiancée visa petition only after they have met in person in the previous two years: meeting each other online or through a video chat or messenger is not enough. The purpose of a K-1 visa is for foreign citizen fiancée to travel to the United States and marry his or her U.S. citizen sponsor within 90 days of arrival.
The foreign fiancee will then apply for adjustment of status (aka “green card”) with the USCIS at the Department of Homeland Security. This is a separate legal process.
K-1 visa is a non-immigrant visa. However, because a fiancée visa is intended to help a foreign national to immigrate to the U.S. and allows him or her to apply for a green card after marriage to a U.S. citizen petitioner shortly after arrival in the United States, the fiancé(e) must meet most of the requirements of an immigrant visa.
K-2 visa is a fiancée visa for eligible children of K-1 visa applicant (unmarried children under 21).
As of 12/2018, current processing times are approx. 5 to 7 months for a I-129F Petition, plus additional 3 to 6 weeks for the NVC stage, plus additional 1-3 months for a visa application process (varies depending on a Consulate and your own readiness).

The First Step: Filing the Petition, USCIS Form I-129F
(1) The U.S. citizen fiancé, must file Form I-129F, Petition for Alien Fiancé(e), with the USCIS. Form I-129F cannot be filed at a U.S. Embassy, Consulate, or USCIS office abroad.
(2) When USCIS approves the I-129F petition, it is sent to the National Visa Center (NVC). The NVC will assign a new a case number and directly forward the approved fiancée visa petition to the U.S. Embassy or Consulate where a foreign fiancée will apply for a visa.

The Second Step: Applying for a Visa
The NVC will mail a letter with a new case number after it sends a fiancée visa case to the U.S. Embassy or Consulate. Once you receive this letter, it is time to apply for a K-1 visa and prepare for the interview.
Eligible children of K-1 visa applicants may apply for K-2 visas. Children are included into the I-129F petition. However, separate visa applications and visa fees are required for every child.

Required Documentation The foreign national fiancée and eligible children applying for K-2 visas will be required to bring the following forms and documents to the visa interview:

Completed Form DS-160, Nonimmigrant Visa Application. Each K-1 and K-2 visa applicant must: (1) complete Form DS-160 online, (2) pay a visa fee, and (3) print the DS-160 confirmation page to bring to a visa interview.
A passport valid for travel to the United States and with a validity date at least six months beyond your intended period of stay in the U.S.
Divorce or death certificate(s) of any and all previous spouse(s) for both you and the U.S. citizen petitioner.
Police certificates from your home country and all other countries where you have lived for six months or more since age 16 (Police certificates are also required for a foreign fiancée and all accompanying children age 16 or older)
Medical examination (for K-1 and K-2 visa applicants)
Evidence of financial support (Form I-134, Affidavit of Support, and proof of sponsor’s employment and income usually are required). There is no extra fee for the Form I-134. For a fiancée visa, the Affidavit of Support, Form I-134, is required. There is another Affidavit of Support, Form I-864, which will be required later, when you apply for a green card after marriage. The forms are different. The income requirements are also different. When submitting the Affidavit of Support, Form I-134, you need to show that your U.S. sponsor's income is 100 percent of the federal poverty guideline. When submitting the Affidavit of Support, Form I-864, the sponsor must be able to demonstrate that his or her income is at least 125 percent of the federal poverty guideline minimum income requirement. If you estimate that both K-1 visa and a green card will be applied for during the same tax year, you should plan and gather all required documentation in advance.
Evidence of relationship with your U.S. citizen fiancée, which is very important at the last stage, as well as at the first stage.

The consular officer may ask for additional information, such as photographs, chat logs, emails and other proof that the relationship with your U.S. citizen fiancé(e) is genuine and real. Documents in foreign languages, other than the language of the country in which the application takes place, should be translated. Applicants should take to the visa interview legible photocopies of civil documents and translations, such as birth and divorce certificates.

Fees

Government filing fees are subject to change (as of 12/2018, the fees are as follows):

US$535 -- Filing fee for an Alien Fiancé(e) Petition, Form I-129F
US$265 -- Nonimmigrant visa application processing fee, Form DS-160 (required for each K visa applicant)
Medical examination fee, paid directly to a designated clinic (required for each K-1 and K-2 visa applicant) – costs vary, please check with the U.S. embassy in the country where a fiancée will apply for a visa
Other costs may include translation and notarization charges, fees for getting the documents required for the visa application (such as passport, police certificates, birth certificates, etc.). Costs vary from country to country.
US$1,225 -- Filing Form I-485, Application to Register Permanent Residence or to Adjust Status. Your spouse will submit this application after marriage. There could be additional applications filed concurrently: Application for a work permit and Application for advance parole. These applications are optional, but could be advisable.
Legal fees – we charge flat fee which could vary from case to case, depending on difficulty and the number of dependents. Please contact attorney for a case evaluation, and we will gladly give you a quote.

To ensure that your application is accepted and not rejected, the most current edition of the form must be submitted, accompanied by a correct filing fee. It is recommended that you check the most current edition of every application and the most current filing fees at USCIS and Department of State websites shortly before applying.

Please note that the approved I-129F petition is valid for four (4) months from the date of approval by USCIS. However, a consular officer can extend the validity of the petition if it expires before visa processing is completed.

Certain conditions and activities can make a visa applicant ineligible for a visa. Examples of these ineligibilities include: certain criminal records; overstaying a previous visa in the U.S.; submitting fraudulent documents; previous deportation or removal order, or voluntary departure; failure to prove bona fide fiancée relationship; etc. If you are found to be ineligible for a visa, the Consular Officer will advise you whether there is waiver of the ineligibility and what the waiver process is.

After your K-1 Fiancé(e) Visa was approved, you will generally wait 5 to 7 business days to pick up your passport, a visa, and a sealed packet containing the documents you provided, plus other documents prepared by the U.S. Embassy or Consulate. It is important that you do not open the sealed packet. Only the DHS immigration official should open this packet when you enter the United States.
If you have children who received K-2 visas, you will either travel together or your children holding K-2 visas will have to follow you to the U.S.

Please note that K-1 and K-2 visas are valid for a single admission to the United States within the validity of the visa, which will be a maximum of 6 months from the date of issuance.

It is advisable not to purchase the tickets, not to sell real estate and business abroad until after a K-1 visa has been approved and issued. In order to limit the risk even more, some of other clients preferred not to sell their apartments, cars, businesses until after they became lawful permanent residents of the United States.

Please note that you must either marry your U.S. citizen fiance within 90 days of your entry into the United States, or depart the U.S. before the expiration of the 90-day period of admission. If not married within the 90-day window, or married within 90 days, but didn’t apply for a green card, if you wish to stay in the United States and apply for a green card, contact a competent immigration attorney for legal advice.

If you would like to schedule a telephone consultation or need help, please contact attorney for a case evaluation, and we will gladly give you a quote and advise you.

Please see below a few brief videos: Part 1, Part 2 and Part 3.

Information and videos in Russian can be found here.

Beginning November 2018, USCIS will be issuing NTA on denied I-360 VAWA and SIJS, U, T visa applications

11/8/2018

On June 28, 2018, USCIS published Policy Memorandum entitled “Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens.”

Starting October 1, 2018, USCIS started issuing NTA (referrals for deportation) in some cases where they denied a I-485 or I-539 application and the applicant is out-of-status.

Now, USCIS is expanding its right to issue a NTA to other applications as well. It will result in more cases being referred for deportation (removal) to Immigration Court.

Beginning November 19, 2018, USCIS will apply the memorandum to the following denied applications and petitions:

I-914/I-914A, Application for T Nonimmigrant Status
I-918/I-918A, Petition for U Nonimmigrant Status
I-360, Petition for Amerasian, Widow(er), and
I-360 VAWA Special Immigrant (Violence Against Women Act self-petitions) and
I-360 Special Immigrant Juvenile Status petitions)
I-730, Refugee/Asylee Relative Petitions when the beneficiary is present in the US
I-929, Petition for Qualifying Family Member of a U-1 Nonimmigrant
I-485 Application to Register Permanent Residence or Adjust Status (with the underlying form types listed above).

U, T, VAWA, SIJS are humanitarian applications. Previously, a denial usually didn't result in deportation. This policy changes on November 19, 2018.

Read here.

Lawsuit Challenges New USCIS Policy on 'Unlawful Presence' for Foreign Students and Exchange Visitors

11/5/2018

In a new lawsuit filed in the U.S. District Court for the Middle District of North Carolina, several colleges and universities have challenged a recently announced new immigration policy, which become effective on August 9, 2018. Lawsuit changes the calculation of the number of days of “unlawful presence” for nonimmigrant foreign students from the date U.S. Citizenship and Immigration Services (USCIS) or an immigration judge finds a violation or orders the student removed to the date the status lapsed.

In 1997, the United States established objective rules that provided visa holders notice. If the authorized period of stay ended on a date certain on which the individual was required to leave the country, unlawful presence began following that date. And for all individuals, unlawful presence began the day after either a government official or immigration judge made a determination that the individual was out-of-status. This provided an opportunity to cure their circumstances and remain in the country or to depart the country within 180 days. Either way, individuals acting in good faith had an opportunity to avoid imposition of a three- or ten-year reentry bar.

Now, based on the USCIS memo, effective August 9, 2018, when a government official or immigration judge determines that an F, J, or M visa holder is out-of-status, the unlawful‑presence clock will be backdated to the day on which the agency concludes that the visa holder first fell out-of-status.

The complaint states that the immigration system “is beset with processing delays, and many of these status determinations are made when an individual is applying for new immigration benefits.” Thus, the new policy’s use of a backdated unlawful-presence clock “will render tens of thousands of F, J, and M visa holders subject to three- and ten-year reentry bars without any opportunity to cure,” the complaint states. “This policy, accordingly, will result in the three- or ten-year banishment of untold numbers of international students and exchange visitors acting in good faith.”

By disrupting the ability of these individuals to continue studying at their schools or continuing their research, teaching, or other scholarly pursuits, the August 2018 policy memorandum fundamentally upsets student-school and employee-school relationships. This results in concrete, significant harms to colleges and universities, including through the loss of irreplaceable community members, loss of tuition dollars, and loss of trained employees. The complaint asserts that the new policy is unlawful for several reasons, including, among other things, that the defendants “failed to undertake the notice and comment required in these circumstances,” such as by not publishing advance notice in the Federal Register and responding to public comments, and by not complying with the Administrative Procedure Act.

The text of the complaint is here.

I-693 Medical Exam Must be Signed Within 60 Days of Filing and Valid for 2 years

10/16/2018

USCIS Policy Manual Update:

USCIS is revising policy guidance for the validity period of Form I-693, Medical Examination. The updated policy goes into effect on November 1, 2018, and will require applicants to submit a Form I-693 signed by a civil surgeon no more than 60 days before filing.

The Form I-693 will remain valid for a 2-year period following the date the civil surgeon signed it (not submitted, but signed).

Read here.

F1 to H1B Cap-Gap Status and Work Authorization Extension Valid Only to Sep 30 2018

9/30/2018

F-1 students who have an H-1B petition that remains pending on Oct. 1, 2018, risk accruing unlawful presence if they continue to work on or after Oct. 1 (unless otherwise authorized to continue employment), as their “cap-gap” work authorization is only valid through Sept. 30. USCIS may not be able to adjudicate H-1B change of status petitions for all F-1 students by October 1, 2018.

USCIS regulations allow an F-1 student who is the beneficiary of a timely filed H-1B cap-subject petition requesting a change of status to H-1B on Oct. 1, to have his or her F-1 status and any current employment authorization extended through Sept. 30. This is referred to as filling the “cap-gap”, meaning the regulations provide a way of filling the “gap” between the end of F-1 status and the beginning of H-1B status that might otherwise occur. The “cap-gap” period starts when an F-1 student’s status and work authorization expire, and they are extended through Sept. 30, with Oct. 1 being the requested start date of their H-1B employment, unless otherwise terminated or the H-1B petition is rejected or denied prior to October 1, 2018.

While the temporary suspension of premium processing of certain types of H-1B petitions has allowed USCIS to prioritize the adjudication of these cap-gap cases, if a cap-gap H-1B petition remains pending on or after October 1, 2018, the F-1 student is no longer authorized to work under the cap-gap regulations. However, the F-1 student generally may remain in the United States while the change of status petition is pending without accruing unlawful presence, provided they do not work without authorization. If an F-1 student with a pending change of status petition has work authorization (such as an I-765 with valid dates) that extends past Sept. 30, they may continue to work as authorized.

Filing Location Change for Form I-751

9/13/2018

On September 10, 2018, USCIS changed the filing location for Form I-751, Petition to Remove Conditions on Residence, to Chicago lockbox address.

This petition must be filed by all conditional residents within the 90-day window before expiration of their conditional green card. Not filing the petition or not filing it during the required 90-day period can result in revocation of the lawful permanent status and can lead to deportation.

I-751 petition was previously filed at the California and Vermont Service Centers. Now, petitioners must send Form I-751 to a USCIS Lockbox facility. However, the California, Nebraska, Vermont, and Texas Service Centers will be the adjudicating offices. When filing at a Lockbox facility, petitioners have the option to pay the fee with a money order, personal check, cashier’s check, or credit card.

Premium Processing Fees Increase and Temporary Suspension

9/13/2018

Effective October 1, 2018, Department of Homeland Security will increase the premium processing fee charged by USCIS from $1,225 to $1,410.

USCIS is authorized to charge a premium processing fee for certain employment-based petitions and applications. Premium processing allows filers to request 15-day processing of certain employment-based immigrant benefit requests if they pay an extra amount. Currently, premium processing is authorized for certain petitioners filing Form I-129 Petition for a Nonimmigrant Worker, or Form I-140 Immigrant Petition for Alien Worker.

While premium processing is temporarily suspended for H-1B through February 19, 2019, petitioners may submit a request to expedite an H-1B petition if they meet one of the following Expedite Criteria and are prepared to submit documentary evidence to support their expedite request:

Severe financial loss to company or individual
Emergency situation
Humanitarian reasons
Nonprofit organization whose request is in furtherance of the cultural and social interests of the United States
Department of Defense or national interest situation submitted by an official U.S. government entity and that delay will be detrimental to the government
USCIS error
Compelling interest of USCIS

This temporary suspension of premium processing does not apply to any other nonimmigrant classifications filed on Form I-129.

With respect to H-1B petitions, USCIS has suspended premium processing for both cap-subject petitions and most other H-1B petitions.

Beginning September 11, 2018, and continuing through February 19, 2019, H-1B petitions cannot be filed utilizing premium processing, except for the following types of cases:

Cap-exempt petitions filed with the California Service Center because the employer is cap exempt or because the beneficiary will be employed at a qualifying cap-exempt institution, entity, or organization; or
Petitions filed exclusively at the Nebraska Service Center by an employer requesting a “Continuation of previously approved employment without change with the same employer.” (Box b. on Part 2, Question 2, Page 2 of the current Form I-129) with a concurrent request to:
1. Notify the office in Part 4 so each beneficiary can obtain a visa or be admitted. (Box 2 on Part 2, Question 4, Page 2 of the current Form I-129); or
2. Extend the stay of the beneficiary because the beneficiary now holds this status. (Box c on Part 2, Question 4, Page 2 of the current Form I-129).

How USCIS Can Help People in Unforeseen Circumstances or Affected by Wildfires?

8/15/2018

How USCIS can help people affected by wildfires in California and other unforeseen circumstances?

On a discretionary basis and upon request, USCIS offers the following immigration services that may help people affected by unforeseen circumstances:

--Changing a nonimmigrant status or extending a nonimmigrant stay for an individual currently in the United States.
--Expedited processing of advance parole requests;
--Expedited adjudication of requests for off-campus employmentauthorization for F-1 students experiencing severe economic hardship;
--Expedited adjudication of employment authorization applications, where appropriate;
--Consideration of fee waivers due to an inability to pay;
--Extension of response time or acceptance of a late response to a Request for Evidence or a Notice of Intent;
--Rescheduling an interview with USCIS;
--Expedited replacement of lost or damaged immigration or travel documents issued by USCIS, such as a Permanent Resident Card (Green Card);
--Rescheduling a biometrics appointment.

Note: When making a request, please explain how the wildfires in California or other unforeseen circumstances are related to the need for the requested relief.

Read more here.

Revised USCIS Guidance on Unlawful Presence for F-1 Students and J-1 Exchange Visitors

8/10/2018

U.S. Citizenship and Immigration Services (USCIS) has published a revised final policy memorandum related to unlawful presence. Under the revised final policy memorandum, effective August 9, 2018, F and M nonimmigrants who fall out of status and timely file for reinstatement of that status will have their accrual of unlawful presence suspended while their application is pending.

On May 10, 2018, USCIS posted a policy memorandum changing the way the agency calculates unlawful presence for those who were in student (F nonimmigrant), exchange visitor (J nonimmigrant), or vocational student (M nonimmigrant) status.

The revised final memorandum published on August 9, 2018 supersedes May 10th memorandum and describes the rules for counting unlawful presence for F and M nonimmigrants with timely-filed or approved reinstatement applications, as well as for J nonimmigrants who were reinstated by the Department of State.

For purposes of counting unlawful presence, a timely reinstatement application for F or M status is one where the student has not been out of status for more than five months at the time of filing. Under the revised final policy memorandum, the accrual of unlawful presence is suspended when the F or M nonimmigrant files a reinstatement application within the five month window and while the application is pending with USCIS.

If the reinstatement application is denied, the accrual of unlawful presence resumes on the day after the denial.

Accrual of unlawful presence could result in later inadmissibility under section INA 212(a)(9).

Whether or not the application for reinstatement is timely-filed, an F, J, or M nonimmigrant whose application for reinstatement is ultimately approved will generally not accrue unlawful presence while out of status.

The Department of State administers the J-1 exchange visitor program, to include reinstatement requests. If the Department of State approves the reinstatement application of a J nonimmigrant, the individual will generally not accrue unlawful presence from the time the J nonimmigrant fell out of status from the time he or she was reinstated.

Memorandum is here.

Denaturalization Task Force to be Established by USCIS

7/23/2018

The USCIS plans to establish an office in Los Angeles, California to focus on denaturalization. The office will take away U.S. citizenship from certain naturalized American citizens.

USCIS will look for cases where it believes a person obtained U.S. citizenship by error, fraud, mistake , using false name or identity - and will refer potential denaturalization cases to the US Department of Justice.

The USCIS couldn't assure compliance with the law because old paper-based records containing fingerprint information from the FBI and DHS can’t be searched electronically. All old paper-only records need to be digitized bfore they can be searched electronically.

In 2008, USCIS identified 206 people who used different names or other biographical information to gain US citizenship or other immigration benefits. This was possible because ICE did not consistently add digital fingerprint records of immigrants whom agents encountered until 2010.

On September 18, 2016, the DHS Office of the Inspector General issued a report entitled Potentially Ineligible Individuals Have Been Granted U.S. Citizenship Because of Incomplete Fingerprint Records.

The report found that that "USCIS granted U.S. citizenship to at least 858 individuals ordered deported or removed under another identity when, during the naturalization process, their digital fingerprint records were not available."Overall, the report found that fingerprint records were missing from hundreds of thousands of cases.

In June 2018, USCIS Director L. Francis Cissna told in an interview that USCIS is hiring several dozen lawyers and immigration officers to review cases of immigrants who were ordered deported and are suspected of using fake identities to later get green cards and citizenship through naturalization.Cissna said the cases would be referred to the U.S. Department of Justice, whose attorneys could then seek to remove the immigrants' citizenship in civil court proceedings. In some cases, government attorneys could bring criminal charges related to fraud.

Until now, the agency has pursued cases as they arose but not through a coordinated effort. It is expected that USCIS new denaturalization office Los Angeles will be running by next year but investigating and referring cases for prosecution will likely take longer.

More about denaturalization effort here.

USCIS Will Deny Applications Without First Issuing a RFE or NOID

7/13/2018

On July 13, 2018, Citizenship and Immigration Services (USCIS) posted a new policy memorandum that provides guidance to USCIS adjudicators regarding their discretion to deny an application, petition, or request without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) when required initial evidence was not submitted or the evidence of record fails to establish eligibility.

This updated guidance is effective September 11, 2018 and applies to all applications, petitions, and requests, except for Deferred Action for Childhood Arrivals (DACA) adjudications, received after that date. Due to preliminary injunctions issued by courts in California and New York, this new guidance does not change the RFE and NOID policies and practices that apply to the adjudication of DACA requests.

The earlier 2013 memorandum addressed policies for the issuance of RFEs and NOIDs when the evidence submitted at the time of filing did not establish eligibility. In practice, the 2013 guidance limited denials without RFEs or NOIDs to statutory denials by providing that RFEs should be issued unless there was “no possibility” of approval. This “no possibility” policy limited the application of an adjudicator’s discretion.

New July 13, 2018 policy implemented in this guidance restores to the adjudicator full discretion to deny applications, petitions, and requests without first issuing an RFE or a NOID. This policy is intended to discourage frivolous or substantially incomplete filings used as “placeholder” filings and encourage applicants, petitioners, and requestors to be diligent in collecting and submitting required evidence.

If all required initial evidence is not submitted with the benefit request, USCIS, in its discretion, may deny the benefit request for failure to establish eligibility based on lack of required initial evidence. Examples of filings that may be denied without sending an RFE or NOID include, but are not limited to: I-601 and I-601A waiver applications submitted without supporting evidence; or cases where the law requires the submission of an official document or other form of evidence establishing eligibility at the time of filing and there is no such submission (e.g., a properly completed and supported by evidence Affidavit of Support (Form I-864), when applying for adjustment of status (Form I-485).

This 07/13/2018 policy guidance updates Chapters 10.5(a) and 10.5(b) of the USCIS Adjudicator’s Field Manual and contains an “additional considerations” section. The policy in this “additional considerations” section is not new, and is nearly identical to the policy contained in the superseded 2013 memorandum.

After September 11, 2018, the effective date of the new policy, applicants and petitioners should be aware that when submitting a self-prepared incomplete or defective application, which is missing required documents, initial evidence, signatures, forms, properly prepared affidavit of support -- they are risking not merely a "rejection", where a complete application packet is mailed back with the filing fee check and all supporting documents, or a RFE, but a proper "denial" of their application, which results in losing of the filing fees, copies of the documents, and the official denial letter may provide brief and generic explanation of the reasons for denial.

After 09/11/2018, USCIS officers are given discretion to deny applications without first sending to an applicant a RFE (request for evidence) or NOID (notice of intent to deny) and giving the applicant an opportunity to correct the deficiencies of the application package.

This policy intervenes with another recent USCIS policy memorandum, dated June 28, 2018, which instructed USCIS officers to issue NTAs to refer applicants to immigration court for removal or deportation after denying their application, if an applicant is out of status on the date of denial.

The USCIS officer will deny the application, check if an applicant maintains his lawful nonimmigrant status, and if not, will issue a NTA and refer them for deportation (removal) to immigration court.

Briefly in Russian:

USCIS иммиграционная служба США недавно опубликовала два новых меморандума, и объявила о намерении ужесточить правила.

(1) Теперь офицеры USCIS будут иметь право отказывать по заявлениям БЕЗ предварительного запроса дополнительных документов и доказательств (RFE request for evidence or NOID notice of intent to deny).
Суть этих запросов в том, что если заявитель забыл послать какие-то копии или документы, он имел возможность позже дослать эти документы по запросу.

(2) После отказа теперь офицеры смогут сами без участия ICE передавать отказанные дела на депортацию в иммиграционный суд, если заявитель на момент отказа находится без легального статуса. Сами сотрудники USCIS будут выписывать повестку в суд на депортацию, NTA or notice to appear.

Это может коснуться и студентов, и лиц на рабочих визах, и даже тех кто подает на грин карту через брак и родителей американских граждан.
Таким образом USCIS cобираются экономить время на рассмотрении заявлений с отсутствующими необходимыми документами, или с недостаточным аффидевитом о материальной поддержке. После отказа, дело направляется в иммиграционный суд, и покидает юрисдикцию USCIS.

Ожидается, что новые правила по отказам вступят в силу с 11 сентября 2018, но такие отказы могут участиться и до этой даты.

NTA Notice to Appear New Procedures: More People Will Be Referred for Removal to Immigration Court

7/9/2018

On June 28, 2018, U.S. Citizenship and Immigration Services (USCIS) issued updated guidance that aligns its policy for issuing Form I-862, Notice to Appear, with the immigration enforcement priorities of the Department of Homeland Security.

A Notice to Appear (NTA) is a document given to a foreign national that instructs them to appear before an immigration judge on a certain date.

The issuance of an NTA commences removal proceedings against the foreign national. Under the new guidance, USCIS officers will now issue an NTA for a wider range of cases where the individual is removable and there is evidence of fraud, criminal activity, or where an applicant is denied an immigration benefit and is unlawfully present in the United States.

Deferred Action for Childhood Arrivals (DACA) recipients and requestors are exempted from this updated guidance when: (1) processing an initial or renewal DACA request or DACA-related benefit request; or (2) processing a DACA recipient for possible termination of DACA. As explained in the concurrently issued DACA-specific guidance, USCIS will continue to apply the 2011 NTA guidance to these cases. USCIS will also continue to follow the existing DACA information-sharing policy regarding any information provided by a DACA requestor in a DACA request or DACA-related benefit request.

USCIS, along with ICE and CBP, has legal authority under current immigration laws to issue NTAs. New USCIS Policy Memorandum updates the guidelines USCIS officers use to determine when to refer a case to ICE or to issue an NTA.

The revised policy generally requires USCIS to issue an NTA in the following categories of cases in which the individual is removable:

Cases where fraud or misrepresentation is substantiated, and/or where an applicant abused any program related to the receipt of public benefits. USCIS will issue an NTA even if the case is denied for reasons other than fraud.
Criminal cases where an applicant is convicted of or charged with a criminal offense, or has committed acts that are chargeable as a criminal offense, even if the criminal conduct was not the basis for the denial or the ground of removability. USCIS may refer cases involving serious criminal activity to ICE before adjudication of an immigration benefit request pending before USCIS without issuing an NTA.
Cases in which USCIS denies a Form N-400, Application for Naturalization, on good moral character grounds because of a criminal offense.
Cases in which, upon the denial of an application or petition, an applicant is unlawfully present in the United States.

The revised policy does not change the USCIS policy for issuing an NTA in the following categories:

Cases involving national security concerns;
Cases where issuing an NTA is required by statute or regulation;
Temporary Protected Status (TPS) cases, except where, after applying TPS regulatory provisions, a TPS denial or withdrawal results in an individual having no other lawful immigration status;
DACA recipients and requestors when: (1) processing an initial or renewal DACA request or DACA-related benefit request; or (2) processing a DACA recipient for possible termination of DACA.

Under separate policy guidance issued concurrently, USCIS officers will continue to apply PM 602-0050, Revised Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Removable Aliens, dated November 7, 2011, to the issuance of NTAs and Referrals to ICE for DACA recipients and requestors.

New memo 1 ,general NTAs, and memo 2, DACA NTAs (both issued on June 28, 2018).

Under new June 28 2018 USCIS policy memo, USCIS will issue a Notice to Appear or NTA on its own initiative without referral to ICE, and place individuals in removal or deportation proceedings in immigration court upon denial of an application, if a person is deemed removable on the date of denial.

It will affect many people on H-1B work visa, their spouses, foreign students on F-1 student visa. This new policy will further backlog our immigration courts, and can result in more people becoming inadmissible and requiring waivers if applying for a visa at the U.S. embassy or consulate.

Briefly in Russian:

В соответствии с новыми правилами, опубликованными USCIS 28 июня 2018, Иммиграционная служба США будет передавать дела в иммиграционный суд и выдавать повестки в суд сами, без участия иммиграционной полиции ICE. Такие повестки в суд на депортацию будут выдаваться после отказа в заявлении поданном в USCIS, если заявитель потерял легальный статус на момент получения отказа. Ожидается, что суды станут еще более перегружены, и многие иностранные студенты F-1 student visa, и люди на рабочих визах H-1B получат повестки на депортацию, что ранее было крайне редко.

#USCIS #ICE #NTA #NoticetoAppear #immigration #immigrant #immigrationcourt #deportation #removal

Automatic Termination of OPT and Work Permit for F-1 Students If They Transfer to a Different School or Begin Study at Another Level

5/19/2018

Automatic Termination of Optional Practical Training (OPT) and Work Permit for F-1 Students If They Transfer to a Different School or Begin Study at Another Educational Level.

USCIS reminds F-1 students on Optional Practical Training (OPT) that transferring to another school or beginning study at another educational level (for example, beginning a master’s program after completing a bachelor’s degree) automatically terminates their OPT as well as their corresponding work permit or employment authorization document (EAD).

Although authorization to engage in OPT ends upon transferring to a different school or changing educational level, students in F-1 status will not be otherwise affected as long as they comply with all requirements for maintaining their student status. These requirements include not working with a terminated EAD, because termination means that students are no longer authorized to work in the United States. Working in the United States without authorization has serious immigration consequences, including removal from the country and bars on reentry. Furthermore, remaining in the United States in violation of lawful nonimmigrant status could lead to an accrual of unlawful presence which includes another set of penalties under the Immigration and Nationality Act.

Currently, U.S. Immigration and Customs Enforcement’s (ICE) Student and Exchange Visitor Program (SEVP) informs USCIS of the termination date, and the OPT termination is automatic under current regulations. USCIS has updated its systems and will begin to enter the EAD termination date into these systems after being notified by SEVP. USCIS will notify affected students and provide them with an opportunity to correct any errors in the record via their designated school official (DSO). This process is intended to strengthen the integrity of the F-1 and OPT programs, to ensure consistency between SEVP and USCIS systems, and to inform students of possible consequences of working with a terminated EAD.

USCIS is preparing to rescind the International Entrepreneur Rule

5/12/2018

The U.S. Department of Homeland Security (DHS) has taken the first step to officially rescind the International Entrepreneur Rule (IER), a program that allows qualifying foreign entrepreneurs an opportunity to stay in the United States while building start-up businesses. The proposed rescission cleared the Office of Information and Regulatory Affairs (OIRA) on May 2, 2018. DHS is expected to publish a formal notice of the rule in the Federal Register in the coming weeks.

The IER was enacted by the Obama administration in an effort to “increase and enhance entrepreneurship, innovation, and job creation in the United States.” The rule gave DHS discretionary authority to allow certain foreign entrepreneurs of start-up businesses with a “demonstrated potential for rapid business growth and job creation,” to enter under a parole status and stay in the United States to oversee and grow their start-up businesses.

However, mere days before the rule’s July 17, 2017, effective date, DHS filed a new rule delaying the implementation of the IER until March 14, 2018. DHS cited President's “Border Security and Immigration Enforcement Improvements” executive order as the reason for the delay. DHS explained that the executive order requires that parole be granted only on a case-by-case basis “when an individual demonstrates urgent humanitarian reasons or a significant public benefit derived from such parole.”

On December 1, 2017, a federal judge invalidated USCIS's delay, and found that DHS had violated the Administrative Procedure Act by not providing notice or an opportunity for advance public comment on the rule. As a result of this court order, USCIS had to launch the IER and began accepting applications.

In a statement appearing on the USCIS website, DHS makes clear its intention to rescind the IER “because it is not the appropriate vehicle for attracting and retaining international entrepreneurs and does not adequately protect U.S. investors and U.S. workers.” That statement also provides that “while DHS complies with the court order and implements the IER parole program, DHS is also in the final stages of publishing a notice of proposed rulemaking seeking to remove the IER.”

Once the proposed rule is published in the Federal Register, the rule will be opened up to the general public for comment, usually for a period of 30 or 60 days. After the comment period, DHS must resubmit its final rule to OIRA for one last review before the final rule can be published in the Federal Register. This process will likely take several months. At this time IER is still in effect, but is expected to be eliminated soon.

New USCIS Policy Memorandum on Using DNA Evidence in I-130 Petitions for a Sibling

5/2/2018

On April 17, 2018, USCIS has updated its policy on the acceptance of DNA evidence supporting sibling relationships. This policy memorandum permits officers to suggest and consider direct sibling-to-sibling DNA test results, and provides standards for evaluating DNA results for full siblings and half siblings. This new guidance will improve USCIS’s ability to evaluate eligibility for immigration benefits by using technological advances in direct sibling DNA test results.

When USCIS determines that primary evidence is unavailable or unreliable, it may suggest and accept DNA test results as evidence of a full-sibling or half-sibling relationship in any petition or application for an immigration benefit in which a sibling relationship is required to establish eligibility or may otherwise be relevant to an eligibility determination.

Note: USCIS will only consider results of DNA testing conducted by an AABB-accredited lab.
USCIS policy on parentage testing remains unchanged.

Testing Against Additional Relatives: to the extent possible, DNA testing against the common parent(s) is encouraged, because it produces more reliable results than tests that do not include a common parent. Similarly, test results that include additional first-degree relatives, such as another sibling, will yield more conclusive results. Including additional blood relatives, such as aunts, uncles, and cousins, also produces more reliable results, particularly where a result is otherwise inconclusive. The AABB standards encourage accredited labs to recommend additional testing of relatives, where appropriate.

As USCIS does not currently have regulatory authority to require DNA testing, they may only suggest the option of additional testing to the petitioner. The applicant or petitioner bears the burden, however, to establish eligibility for the immigration benefit sought. INA § 291, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013).

DNA could be expensive. The petitioner or applicant will have to pay for the DNA test if suggested by USCIS or the U.S. embassy or consulate.

(Primary evidence to establish a sibling relationship includes birth certificates, and if applicable, marriage certificates. When an officer determines that primary evidence is unavailable or unreliable, the officer may consider secondary evidence that demonstrates the sibling relationship. Secondary evidence that officers may consider includes, but is not limited to, medical records, school records, and religious documents issued contemporaneously with the event they document. Affidavits sworn to by persons who were living at the time of and who have personal knowledge of the event to which they attest may also be accepted if certain conditions are met. Following the BIA’s ruling in Matter of Ruzku, 26 I&N Dec. 731 (BIA 2016) USCIS initiated discussions with the AABB Relationship Testing (RT) Subcommittee through the DHS Science and Technology (S&T) Directorate.)

This Policy Memo replaces a 2014 Policy Memo (PM-602-0106, DNA Evidence of Sibling Relationships), and previous guidance in Chapter 21.9(c) of the Adjudicator’s Field Manual (AFM).

New USCIS memo.

Briefly in Russian:

USCIS опубликовал новые инструкции по использованию теста ДНК при анализе петиций поданных на брата и сестру (и также тех братьев и сестер, у кого общий только один из родителей).

Раньше тест ДНК использовался для установления отношений между родителем и ребенком, и не применялся для других категорий. Теперь USCIS могут предложить петиционеру и брату (сестре) пройти тест ДНК через лабораторию аккредитованную AABB. Они не могут принудить петиционера и заявителя пройти этот тест, а могут только "предложить". Но стоит понимать, что предлагать такой тест USCIS будут тем, у кого не хватает первичных документальных доказательств (свидетельства о рождении, о браке) или что-то вызывает недоверие к документам (подозрение, что это подделка). В случае отказа от теста ДНК, USCIS могут отказаться утвердить петицию I-130 или выдать визу. Инструкции по тесту ДНК родителей и детей остаются те же, что и раньше.

FY 2019 H-1B Visa Update

4/23/2018

This year USCIS received total of 190,098 cap subject H-1B work visa petitions for the next fiscal year, FY 2019. The annual quota (cap) was reached on April 6, 2018.

--> 94,213 of the H-1B petitions are for general cap (cap is 65,000).
--> 95,885 of the H-1B petitions are master's cap (cap is 20,000).

It will take several weeks for USCIS to complete the H-1B notification process for cases selected in the lottery. USCIS will mail back rejected petitions, filing fees, etc starting from the end of April till July 2018.

USCIS had warned that the petitioners/employers can't file multiple or duplicative H-1B petitions for the same employee. USCIS will deny or revoke multiple or duplicative petitions filed by an employer (including its related entities) for the same H-1B worker and will not refund the filing fees.

Read here.

USCIS Will Destroy Undeliverable Green Cards, Work Permits After 60 Days

4/3/2018

NEWS from USCIS: Starting April 2, 2018, USCIS will destroy Permanent Resident Cards (Green Cards), Employment Authorization Cards (Work Permits) and Travel Documents returned to USCIS as undeliverable by the U.S. Postal Service after 60 business days, if USCIS is not contacted by the document’s intended recipient (applicant) to provide the correct address.

Update from USCIS: Начиная с 2 апреля 2018, USCIS будет уничтожать грин карты, разрешения на работу и на поездки за границу, если эти документы были возвращены в USCIS почтой как "недоставленные" (undeliverable), если заявитель не свяжется с USCIS, и не предоставит свой новый или правильный адрес в течение 60 дней после возврата документов почтой.

USCIS Started Accepting Credit Card Payments for Many Applications

2/15/2018

On February 14, 2018, USCIS announced that it will now accept credit card payments for filing most of its applications, including I-130, I-129F, I-485, I-765, I-131, I-601, I-90, N-400, N-600, etc.

Currently, credit card payment option is available for the 41 fee-based forms processed at USCIS Lockbox facilities. To pay by Visa, MasterCard, American Express or Discover, applicants will need to use USCIS Form G-1450.

USCIS will enter credit card data into the Pay.gov system, operated by the U.S. Department of the Treasury, and will then destroy the Form G-1450 to protect the credit card information.

Applicants for naturalization, N-400, and applicants renewing or replacing their Green Cards, I-90, can already use a credit card if they file online at uscis.gov.

Second DACA Injunction: DACA Renewal Applications Still Accepted

2/14/2018

In the second injunction that blocks the Trump administration efforts to end DACA, Judge Nicholas Garaufis of the Eastern District of New York on Feb. 13, 2018 ordered U.S. Citizenship and Immigration Services to accept certain DACA applications while litigation continues.

The ordered relief mirrors the preliminary injunction issued by Judge William Haskell Alsup in the Northern District of California on Jan. 9. It required USCIS to resume accepting DACA renewal applications from people who had previously been granted that relief. This second nationwide injunction similarly requires the Department of Homeland Security to maintain the DACA program on the same terms and conditions that existed before the administration on Sept. 5, 2017, issued a memo to rescind DACA, with the following exceptions:

DHS need not consider new applications from individuals who have never before held DACA
DHS is not required to provide advance parole to DACA beneficiaries
DHS retains the discretion to adjudicate DACA renewal requests on a case-by-case, individualized basis.

The Department of Justice has requested that the U.S. Supreme Court review Alsup’s order on its merits, bypassing the usual process of appealing to 9th U.S. Circuit Court of Appeals. As early as Feb. 16, 2018, the Supreme Court could announce a decision to review the injunction.

While the injunctions remain in place, USCIS has advised people who have previously received DACA that they may request renewal by filing the following forms:

Form I-821D
Form I-765, and
I-765 Worksheet

Applicants whose DACA expired on or after Sept. 5, 2016 may file as renewal requestors. Applicants who previously held DACA and whose DACA expired before Sept. 5, 2016 may file as initial requestors. Applications from those who have never received DACA will be NOT be accepted, nor will applications requesting advance parole.

DACA policy will be operated on the terms in place before Sept. 5, 2017.

USCIS Begins Accepting DACA Renewal Applications Following a Court Order

1/14/2018

On January 13, 2018, following a federal court order (a preliminary injunction), USCIS had made an announcement confirming that they will accept DACA renewal applications (Deferred Action for Childhood Arrivals).

Until further notice, the applicants should use pre-September 5, 2017 applications, 2017 edition forms, instructions, fees.

I-821D direct filing address depends on your state of residence.

Don't forget to include form I-765 and I-765WS (worksheet explaining your economic necessity).

Please note that you can't file a new DACA application if you had never had it approved before. You can't file an application for advance parole (travel document). This announcement applies only to DACA renewal applications.

Additional information will be forthcoming.

#DACA #DACADreamers #DACARenewal #DREAMAct #Dreamers

Details of this announcement are here.

DACA Renewals Can Be Submitted: Judge Temporary Reopens DACA Program

1/10/2018

On January 9, 2018, a federal judge in San Francisco, CA temporarily blocked the Trump administration from ending the Deferred Action for Childhood Arrivals (DACA) program that protects certain immigrants from deportation. The decision applies NATIONWIDE.

Judge said the Obama-era program must remain in place while litigation over Trump’s decision to end the program is pending. In a court ruling, Judge W. Alsup said the Department of Homeland Security's "decision to rescind DACA was based on a flawed legal premise."

Judge ordered USCIS to publish new DACA renewal instructions on their website, and start accepting applications.

As a result of this court ruling, DACA grantees can renew expired DACA, but can't file a new DACA.
(1) DACA recipients who failed to renew their status by the last year’s deadline can submit renewal applications. It is better to wait for the instructions from USCIS, to avoid any possible erroneous denial or rejection by a USCIS employees.
(2) The decision does not, however, allow new applications to be submitted.

Read an advisory here.

In Russian:

9 января 2018 федеральный судья вынес решение о том, что президент превысил свои полномочия, когда 5 сентября 2017 отменил иммиграционную программу ДАКА / DACA для молодежи, кого привезли в США в детстве и кто вырос в США, но не имеет ни грин карты, ни гражданства.

Судья приказал Департаменту госбезопасности (DHS - USCIS) опубликовать инструкции и порядок подачи заявлений на продление ДАКА статуса и получение разрешения на работу через ДАКА. Судья приказал USCIS начать прием заявлений немедленно, и опубликовать новые инструкции.

Лучше всего будет дождаться выхода официальных инструкций на вебсайте USCIS, скорее всего на следующей неделе, чтобы избежать ошибочного отказа. Хотя некоторые адвокаты советуют, что подавать заявление можно уже сейчас, так как судья временно приостановил действие указа президента в отношении DACA, и приказал USCIS игнорировать решение от отмене DACA как незаконное, и возобновить прием заявлений.

Что можно -- подать заявление на продление - DACA renewal.
Что нельзя -- подать новое заявление (new DACA application), или заявление на advance parole (travel document).

USCIS Considers Ending H-1B Work Visa Extensions

1/2/2018

The DHS / USCIS is considering new regulations to end the extension of H1-B work visas. The new rule potentially could stop hundreds of thousands of foreign workers from keeping their H-1B visas while their green card applications are pending. It will affect many tech and IT professionals, especially from India and China.

“This would be a major catastrophic development as many people have been waiting in line for green cards for over a decade, have U.S. citizen children, own a home."

“The idea is to create a sort of ‘self-deportation’ of hundreds of thousands of Indian tech workers in the United States to open up those jobs for Americans,” said a source briefed by Homeland Security officials.

“The agency is considering a number of policy and regulatory changes to carry out the President’s Buy American, Hire American Executive Order, including a thorough review of employment-based visa programs,” confirmed USCIS.

UPDATE 01-09-2018:

Under pressure from the business and technology communities, USCIS appears to be backing away from a policy change that could have forced foreign tech workers out of the country. The administration denies they considered abolishing H-1B extensions.

“The agency is considering a number of policy and regulatory changes to carry out the President’s Buy American, Hire American Executive Order, including a thorough review of employment based visa programs,” Jonathan Withington, chief of media relations for USCIS, said Monday.

“What we can say, however, is that USCIS is not considering a regulatory change that would force H-1B visa holders to leave the United States by changing our interpretation of section 104(c) of AC-21, which provides for H-1B extensions beyond the 6 year limit,” the agency told McClatchy. “Even if it were, such a change would not likely result in these H-1B visa holders having to leave the United States because employers could request extensions in one-year increments under section 106(a)-(b) of AC21 instead.”

Pressure against this discriminatory proposal, and explaining to USCIS that the decision would have been illegal and in violation of federal law worked!

Read more here.

#visa #workvisa #H1B #H1Bextension #USCIS #deportation

Read more here.

Update on a Visa Waiver Program

12/22/2017

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.

Updated USCIS and Consular Procedures for Cuba

12/22/2017

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.