USCIS ISSUES NEW MEMO ON RFE AND NOID ISSUANCE
August 2, 2018
On July 13, 2018 the USCISissued a memoindicates USCIS adjudicators now have full discretion to deny applications,petitions, and requests without first issuing an Request for Evidence (RFE) orNotice of Intent to Deny (NOID), when appropriate.
Applicants must include allrequired initial evidence, as listed in operating procedures, forminstructions, or regulations with their immigration petition orapplication. In some cases a second RFEor NOID may be issued. Reutersreports RFE and NOID issuance is up significantly in the last year.
Apart from RFEs, Officers havethe discretion to validate assertions or corroborate evidence and information submittedwith an immigration application by consulting USCIS or other governmentalfiles, systems, and databases, or by obtaining publically available informationthat is readily accessible.
It is unclear how strictly this newpolicy will be enforced. MU recommends employers work to get all documentationfor a case, including end-client documentation, upfront in the initial filingand advises employers to file extension cases as early as possible. MU encourages employers to closely review alltemplate language in support letters and immigration forms as well as on theemployer’s website and other publicly available information about the employer.
USCIS NTA MEMORANDUM IMPLEMENTATION DELAYED
July 30, 2018
On July 30, the USCISannounced that it will delay the implementation of a recent memoregarding the issuance of Notices To Appear (NTAs) to foreign national who fallout of status when their immigration petition is denied. The issuance of an NTA initiates deportationproceedings.
On June 28, 2018 the USCIS issued a newpolicy memorandum which instructed USCIS Officers to initiatedeportation proceedings for those foreign nationals’ whose immigration petitionwas denied after their I-94 card had already expired. Generally, when the USCIS creates a newpolicy the USCIS delays implementation of the policy until a guidance memo canbe issued. The June 28, 2018 memo didnot give a date specific on which the policy would be implemented, meaning it wouldbe implemented immediately.
Today's announcement indicates the newNTA policy not be implemented until the USCIS guidance is issued. The announcement also confirms that USCIS is not currentlyinitiating deportation proceedings for those whose immigration petitions aredenied after their I-94 cards expire.
For more information on this new policy please join us onWednesday, August 1, for a teleconference on this new policy and other updatesfrom the USCIS: REGISTER
MU TELECONFERENCE: USCIS NEW POLICIES UPDATE
July 24, 2018
The USCIS has recentlyissued new policies regarding Notices to Appear (NTAs), Requests for Evidence(RFEs) and Notices of Intent to Deny (NOIDs).
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Please join MU Law for a teleconference regarding these topics of newpolicy.
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Please join MU Law for a teleconference regarding these topics of newpolicy.
The agenda for the call is as follows:
- Under this new guidance, when will the USCIS issue an NTA and initiate deportation proceedings?
- When are foreign nationals “unlawfully present” in the US and what are the consequences?
- What if I do not receive the NTA or leave the US once my immigration application is denied?
- When will the USCIS issue an RFE? A NOID? A denial?
- What initial evidence is required for an immigration application?
- Can a second RFE or NOID be issued?
This teleconference is free for MU Law clients and friends of thefirm. We look forward to speaking with you!
AUGUST 2018 VISA BULLETIN: LATEST UPDATE AND ANALYSIS
July 13, 2018
The Department of State has just issued the August 2018 Visa Bulletin. This is the eleventh Visa Bulletin of Fiscal Year 2018. This blog post analyzes this month's Visa Bulletin. The August and September Visa Bulletins always are a little unusual. We invite you to read our FAQ on these Visa Bulletin.
August 2018 Visa Bulletin
Table A: Final Action Dates -- Applications with these dates may be approved for their Green Card (Permanent Residency card) or Immigrant Visa appointment.
EB Class | All Other | CHINA | INDIA | MEXICO | PHIL'PNES |
EB-1 | 01MAY16 | 01JAN12 | 01JAN12 | 01MAY16 | 01MAY16 |
EB-2 | C | 01JAN15 | 01MAR09 | C | C |
EB-3 | C | 01JUL14 | 01JAN09 | C | 01JUN17 |
Table B: Dates for Filing -- The DOS may work on applications with these dates. But the Visa cannot be approved until the date is current per Table A.
EB Class | All Other | CHINA | INDIA | MEXICO | PHIL'PNES |
EB-1 | C | C | C | C | C |
EB-2 | C | 01APR15 | 22MAY09 | C | C |
EB-3 | C | 01JAN16 | 01MAY09 | C | 01JUL17 |
MU Law Analysis (all references are to Table A unless noted)
All Other: The EB-2 has been current for many years. The EB-3 is also current and is expected to remain current for the foreseeable future. The EB-1 retrogression is temporary and is because of the reasons listed on the above-linked FAQ.
China (mainland-born): China EB-3 (Chart A) moved favorably by 18 months. This move was done to spur filings in this category before the end of the fiscal year.
India: As with China, the retrogression of India EB-1 probably means that there will not be a forward progression until after October 1, 2018. EB-3 continued its steady progress, improving by to months. India EB-3 should continue to steady progress into FY 2019.
Mexico: Mirrors All Other in analysis.
Philippines: Phils EB-3 improved by 6 months, which is terrific, but probably temporary. The DOS is trying to encourage filings in this category before the end of the fiscal year. The EB-1 retrogression is of no consequence, and is simply reflective of the fact that all countries' EB-1 demand was higher than expected in FY2018. It will be Current in October 2018.
TELECONFERENCE: STEM OPT AND THIRD-PARTY WORK-SITES
June 30, 2018
The USCIS has recentlyissued two new interpretations on the issue of STEM OPTs working at third-partyclient work-sites. These interpretations have dramatic implications forthose who continue to work at third-party client sites after August 9, 2018.
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Please join MU Law for a teleconference on this issue. The teleconference will be July 11, 2018 at 3PM ET.
Topics on the call will include:
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Please join MU Law for a teleconference on this issue. The teleconference will be July 11, 2018 at 3PM ET.
Topics on the call will include:
- STEM OPT v. non-STEM OPT
- Examination of the current rules and the new rules.
- USCIS interpretation of a third-party client site.
- Unlawful presence v. Failure to Maintain Status
REGISTER HERE
The teleconference isfree for MU Law clients and friends of the firm. We look forward to speakingwith you!
CAN STEM OPTs WORK AT THIRD PARTY WORKSITES?
June 25, 2018
Because of two recent USCISinterpretive changes, Musillo Unkenholt LLC (MU Law) advises that STEM OPTworkers do not work at third-party worksites under their SETM OPT workauthorization until the USCIS issues better and clearer guidance on theissue.
Working and training at third-partyworksites is probably legal. However, byworking at the third-party worksite the STEM OPT trainee puts himself at risk forenormous negative immigration consequences, including a ten-year bar fromentering or living in the United States.
USCIS’ APPARENT THIRD-PARTY WORKSITE PROHIBITION
Earlier this year, and without anywarning or notice, the USCISchanged its webpage to include this key change:
thetraining experience may not take place at the place of business or worksite ofthe employer’s clients or customers because ICE would lack authority to visitsuch sites.
The USCIS’ justification for thethird-party worksite prohibition is, apparently, because ICE (ImmigrationCustoms Enforcement) would lack the authority to investigate at the third-partyworksite.
Curiously, ICE has not produced anyguidance on this point. ICE likely wouldbe surprised to learn that they do not have the authority to investigate aworksite where it believed immigration fraud was being committed.
The website change alone isprobably not good law. There has been noregulatory change. There has been nonotice and comment period, something required for regulatory change. The “ICE lacks investigative authority”justification for the prohibition against third-party worksites is weak.
If the only thing that USCIS haddone was updated their webpage, then MU Law’s position might be that STEMworkers could continue to work at third-party worksites, provided that theother qualifications of the program were being met, however, this is not theonly change for F-1 students.
F-1 STUDENTS NOW ACCRUE UNLAWFUL PRESENCE FOR FAILURE TO MAINTAINSTATUS
A brand new USCIS policy, effectiveAugust 9, 2018, says that F-1students including STEM OPTs will now accrue “unlawful presence”“the day after he or she engages in an unauthorized activity.” Accordingly, after August 9, 2018, the USCISis expected to find that STEM OPTs working at third-party worksites areengaging in “unauthorized activity” and are therefore “unlawfully present”.
Even worse, a USCIS official can retroactivelyfind that an F-1 student engaged in “unauthorized activity”. A number of leadinguniversity administrators have made this point directly to USCISDirector James Cissna.
This is a massive change inlong-standing USCIS policy. Under theprior interpretation, an F-1 student or OPT did not accrue unlawful presenceuntil an immigration judge said so. Engaging in “unauthorized activity” meant thatan F-1 worker “failed to maintain status,” which is a lesser finding.
The distinction between “failing tomaintain status” and “unlawful presence” is enormous:
- When someone fails to “maintainstatus” they must immediately leave the US but can ordinarily immediatelyreenter the US.
- When someone is “unlawfullypresent” for more than 180 days, they must immediately leave the US and are barredfrom reentering the US for 3 years. When someone is “unlawfully present” for more than 365 days, they mustimmediately leave the US and are barred from reentering the US for 10 years.
Consider this hypotheticalscenario:
August 9, 2018 – STEM OPT continuesto work at a third-party worksite
April 1, 2019 – STEM OPT workerfiles an H-1B cap petition
May 1, 2019 – STEM OPT worker’sH-1B cap cases is selected in the H-1B lottery
August 10, 2019 – STEM OPT workerreceives an RFE from USCIS asking for proof that he has only engaged inauthorized activity.
September 20, 2019 - H-1B is denied. USCIS finds that STEM OPT worker’sthird-party work was “unauthorized activity”. USCIS also finds that the STEM OPT worker was “unlawfully present” fromAugust 9, 2018 until September 20, 2019, a period of more than 365 days. Consequently, the STEM OPT worker mustimmediately leave the US and cannot reenter the US for 10 years.
CONCLUSION
At this time, MU Law recommendsthat STEM OPT workers are not placed at third party worksites unless comprehensiveanalysis is done regarding the viability of the assignment. STEM OPT workers at third party worksites runthe risk of 3 and 10 year bars from reentry into the US. It is our hope that USCIS provides greatlyclarity on these points and engages the public on the issue, rather thancreating law by fiat.
JULY 2018 VISA BULLETIN: LATEST UPDATE AND ANALYSIS
June 18, 2018
The Department of State has just issued the July 2018 Visa Bulletin. This is the tenth Visa Bulletin of Fiscal Year 2018. This blog post analyzes this month's Visa Bulletin.
July 2018 Visa Bulletin
Table A: Final Action Dates -- Applications with these dates may be approved for their Green Card (Permanent Residency card) or Immigrant Visa appointment.
EB Class | All Other | CHINA | INDIA | MEXICO | PHIL'PNES |
EB-1 | C | 01JAN12 | 01JAN12 | C | C |
EB-2 | C | 01JAN15 | 01MAR09 | C | C |
EB-3 | C | 01JAN13 | 01NOV08 | C | 01JAN17 |
Table B: Dates for Filing -- The DOS may work on applications with these dates. But the Visa cannot be approved until the date is current per Table A.
EB Class | All Other | CHINA | INDIA | MEXICO | PHIL'PNES |
EB-1 | C | C | 01JAN12 | C | C |
EB-2 | C | 01APR15 | 22MAY09 | C | C |
EB-3 | C | 01JAN16 | 01MAY09 | C | 01JUL17 |
MU Law Analysis (all references are to Table A unless noted)
All Other: The EB-2 has been current for many years. The EB-3 is also current and is expected to remain current for the foreseeable future.
China (mainland-born): As often happens as we get closer to the end of the fiscal year, each categories moves with a higher variance than is usual. We expect that China EB-1 and EB-3 are essentially fully used, which means that there will be no numbers until after October 1, 2018. On the other hand, the China EB-2 number progressed about 6 months, reflecting than "downgrade" demand that has occurred in the last several years.
India: As with China, the retrogression of India EB-1 probably means that there will not be a forward progression until after October 1, 2018. EB-2 and EB-3 continued their steady progress. Rumors are flying around the internet about a massive progression of EB-3. We expect steady progressions for Indian EB-3, reflecting lower demand for these visas in 2008-09.
Mexico: Mirrors All Other in analysis.
Philippines: Phils EB-3 stayed the same. As with China EB-1 and EB-3, and India EB-1, this probably means no forward progression until October 1, 2018, when the new fiscal year begins. There is a minimal chance of a small progression in the next few months.
DID THE DOL ELIMINATE STAFFING COMPANY GREEN CARDS?
June 6, 2018
Thank goodness the answer isNO. Green cards are still viable forroving employees and for staffing company employees.
Nevertheless, the rumor that theDOL has “cancelled” the long-standing Farmer Memo has been flying around theinternet. A cancellation of the FarmerMemo could be seen a massive strike against the viability of “roving employee”green cards, which make up the bulk of IT and healthcare staffing company’sgreen cards.
Thankfully, AILAhas confirmed that the rumor is false. The Farmer Memo is still good guidance for PERM green cards. The recent"cancellation" notification of the Farmer Memo that appeared on theDOL website is “simply an administrative system update that does notreflect any policy change.”
The Farmer Memo, which has existedsince 1994, provides the basis for green cards where the employer does not knowwhere the employee will actually work, as is the case for most staffingcompanies. The Farmer Memo instructsstaffing company petitioners to use the employer’s headquarters as the“worksite”. The Memo has been citedby the DOL countless times as good law, notably in Matter of Amsol.
Relevant section of the Farmer Memo
10.LABOR CERTIFICATION APPLICATIONS WHERE ALIENS WILL BE WORKING AT VARIOUSUNANTICIPATED SITES Applications involving job opportunities which require thebeneficiary to work in various locations throughout the U.S. that cannot beanticipated should be filed with the local Employment Service office havingjurisdiction over the area in which the employer's main or headquarters officeis located.
InItem 7 (address where alien will work) of part A of the Application for AlienEmployment Certification, the employer should indicate that the alien will beworking at various unanticipated locations throughout the U.S. A shortstatement should also be included explaining why it is not possible to predictwhere the work sites will be at the time the application is filed.
No Impact on Schedule A cases
Even if the Farmer Memo had been cancelled,Schedule A cases would not have been impacted. Schedule A cases are green card petitions for Nurses and Physical Therapists. The DOL’s PERM FAQ website still containsthis FAQ (Notice of Filing FAQ #12), which allows roving employeesand provides guidance on how to prepare Schedule A green card petitions.
12. Where must I post a Notice of Filing for apermanent labor certification for roving employees?
If the employerknows where the Schedule A employee will be placed, the employer must post thenotice at that work-site(s) where the employee will perform the work andpublish the notice internally using in-house media--whether electronic orprint--in accordance with the normal internal procedures used by the employerto notify its employees of employment opportunities in the occupation inquestion. The prevailing wage indicated in the notice will be the wageapplicable to the area of intended employment where the worksite is located.
If the employer doesnot know where the Schedule A employee will be placed, the employer must postthe notice at that work-site(s) of all of its current clients, and publish thenotice of filing internally using electronic and print media according to thenormal internal procedures used by the employer to notify its employees ofemployment opportunities in the occupation in question. The prevailing wagewill be derived from the area of the staffing agencies' headquarters.
If the work-site(s) isunknown and the staffing agency has no clients, the application would be deniedbased on the fact that this circumstance indicates no bona-fide job opportunityexists. The employer cannot establish an actual job opportunity under thiscircumstance. A denial is consistent with established policy in other foreignlabor certification programs where certification is not granted for jobs thatdo not exist at the time of application.
DINNER AT AILA ANNUAL
May 23, 2018
For the last several years a groupof AILA lawyers who practice in healthcare have gotten together for a dinner onthe Thursday of AILA Annual week. Most years we have about 15 people. It is a great chance to catch up with oldfriends (and new ones!). It is a casual event.
If you are an AILA attorney who isinterested in attending this year’s dinner, please let me know how many willbe attending from your group. Thedeadline to register is June 1. Friends, spouses, etc. are also welcome.