07
Dec 2017
ESTA-300x207

Clients have encountered visa processing delays at consular posts around the world, which are being caused by technical glitches in the visa processing system. The AILA DOS Liaison Committee raised this issue with the Department of State Visa Office, and the Visa Office confirmed that the Bureau of Consular Affairs is in the process of resolving these technical problems with the visa processing systems. They noted that some progress has already been made, but processing has not been fully restored. Their experts continue to focus on this issue and are working to fully resolve it as quickly as possible.

It is important to note that, while this is a worldwide issue, the problem only delays visa issuances for about 15-20 percent of applicants who have been approved for visas. The majority of approved visas are being issued without technical errors. In addition, while the CEAC system will show these cases as being in “Administrative Processing,” this simply means that the cases are pending and does not denote that any further review is required.

3trs tbls1-immigrationandnationalitylaw location-san-diego

We are available to represent Employment Based Adjustment of Status Applicants in the following localities: San Diego County including San Diego, Carlsbad, and Escondido; Los Angeles County including Beverly Hills, Los Angeles, West Los Angeles, Burbank, Hollywood, Van Nuys, Whittier, Woodland Hills, and Long Beach; Santa Clara County including San Jose, Milpitas, Santa Clara, and Sunnyvale; Alameda County including Oakland, San Leandro, and Berkeley; Sacramento County including Sacramento, Elk Grove, and Folsom; and Orange County including Santa Ana and Anaheim.

 

06
Dec 2017
clinton-trump-economist

On December 4, 2017, the U.S. Supreme Court issued two orders staying the preliminary injunctions issued against President Trump’s September 24, 2017 Presidential Proclamation by the U.S. District Court for the District of Hawaii in the case Hawaii v. Trump and by the U.S. District Court for the District of Maryland in the case IRAP v. Trump, pending the disposition of the administration’s appeals of these District Court rulings to the U.S. Court of the Appeals for the Ninth Circuit and Fourth Circuit, and any subsequent writs of certiorari.
The Supreme Court’s December 4, 2017 ruling means that the administration may fully implement President Trump’s September 24, 2017 Presidential Proclamation. The proclamation imposes country-specific travel restrictions on eight countries: Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen. In addition, nationals of Iraq will be subject to extra screening measures.

The U.S. Department of Homeland Security provides a fact sheet on its website published on September 25, 2017, regarding the Presidential Proclamation and its implementation. The U.S. Department of State previously issued guidance on November 17, 2017, regarding the implementation of the proclamation and is anticipated to update this guidance in light of the Supreme Court’s December 4, 2017 ruling.

3trs tbls1-immigrationandnationalitylaw location-san-diego

We are available to represent Employment Based Adjustment of Status Applicants in the following localities: San Diego County including San Diego, Carlsbad, and Escondido; Los Angeles County including Beverly Hills, Los Angeles, West Los Angeles, Burbank, Hollywood, Van Nuys, Whittier, Woodland Hills, and Long Beach; Santa Clara County including San Jose, Milpitas, Santa Clara, and Sunnyvale; Alameda County including Oakland, San Leandro, and Berkeley; Sacramento County including Sacramento, Elk Grove, and Folsom; and Orange County including Santa Ana and Anaheim.

 

05
Dec 2017
Big ben and plane

 

As the Trump administration looks to curtail the ability of foreigners to live and work in the United States, many of the changes are happening through executive orders and policy memos, not legislation.

The latest shift affects holders of the H-1B visa favored by tech companies, as well as other work visas, who are seeking to extend their stays.

Under a new U.S. Citizenship and Immigration Services policy issued Monday, foreigners applying for a visa extension will no longer be given “deference” if their job descriptions haven’t significantly changed. This means that regardless of how long a foreigner has been in the country, immigration officers must review the application as if it were new.

Previously, if a foreigner’s job description was unchanged, immigration officials would approve the extension under a 2004 rule that instructed them to “defer to prior determinations of eligibility,” except in extreme circumstances.

3trs tbls1-immigrationandnationalitylaw location-san-diego

We are available to represent Employment Based Adjustment of Status Applicants in the following localities: San Diego County including San Diego, Carlsbad, and Escondido; Los Angeles County including Beverly Hills, Los Angeles, West Los Angeles, Burbank, Hollywood, Van Nuys, Whittier, Woodland Hills, and Long Beach; Santa Clara County including San Jose, Milpitas, Santa Clara, and Sunnyvale; Alameda County including Oakland, San Leandro, and Berkeley; Sacramento County including Sacramento, Elk Grove, and Folsom; and Orange County including Santa Ana and Anaheim.

 

04
Dec 2017
shutterstock_159118949-300x206

Elections have consequences. But when it comes to federal agencies, the Administrative Procedure Act shapes the contours of those consequences. This case involves the Department of Homeland Security’s decision to delay the implementation of an Obama-era immigration rule, the International Entrepreneur Rule, 82 Fed. Reg. 5,238 (Jan. 17, 2017). The Rule would have allowed certain foreign entrepreneurs to obtain immigration “parole” — that is, to temporarily enter the United States despite lacking a visa or green card. It was finalized in the waning hours of the Obama administration and was set to take effect 180 days later, on July 17, 2017. On the eve of that date, however, the Department issued a new rule (“the Delay Rule”) delaying the effective date of the original one for another eight months, until March 14, 2018. The agency did so, however, without providing notice or soliciting comment from the public, as the APA generally requires.

That leaves the question of remedy. When a court concludes that agency action is unlawful, “the practice of the court is ordinarily to vacate the rule.” Ill.Pub. Telecomms. Ass’n v. FCC, 123 F.3d 693, 693 (D.C. Cir. 1997); Reed v. Salazar, 744 F. Supp. 2d 98, 119 (D.D.C. 2010) (“[T]he default remedy is to set aside Defendants’ action.”); Sierra Club v. Van Antwerp, 719 F. Supp. 2d 77, 78 (D.D.C. 2010) (“[B]oth the Supreme Court and the D.C. Circuit Court have held that remand, along with vacatur, is the presumptively appropriate remedy for a violation of the APA.”). “[A]lthough vacatur is the normal remedy, [courts] sometimes decline to vacate an agency’s action.” Allina Health Servs. v. Sebelius, 746 F.3d 1102, 1110 (D.C. Cir. 2014).

 

3trs tbls1-immigrationandnationalitylaw location-san-diego

We are available to represent Employment Based Adjustment of Status Applicants in the following localities: San Diego County including San Diego, Carlsbad, and Escondido; Los Angeles County including Beverly Hills, Los Angeles, West Los Angeles, Burbank, Hollywood, Van Nuys, Whittier, Woodland Hills, and Long Beach; Santa Clara County including San Jose, Milpitas, Santa Clara, and Sunnyvale; Alameda County including Oakland, San Leandro, and Berkeley; Sacramento County including Sacramento, Elk Grove, and Folsom; and Orange County including Santa Ana and Anaheim.

 

19
Nov 2017
file0001989720291

 

USCIS issued a policy memo with guidance on the implementation of the AAO adopted decision in Matter of V-S-G- Inc. USCIS will now inform the beneficiary of petitions in certain circumstances including when a notice of intent to revoke is issued. Guidance is effective immediately, and supersedes any existing guidance on this issue.

On November 11, 2017, USCIS adopted as a matter of policy the AAO’s decision in Matter of V-S-G- Inc., which held that beneficiaries who have properly ported under AC21 are affected parties who are entitled to receive notices pertaining to the potential revocation of the approval of an immigrant visa petition due to their ability to port that petition to new employment and a new employer. Now, when USCIS sends a notice of intent to revoke (NOIR) an approval or notice of revocation (NOR) for a Form I-140 (Immigrant Petition for Alien Worker) to the original petitioning employer, we will also inform the beneficiary of that petition in certain circumstances. Beneficiaries will receive such notice in cases where they have filed a Form I- 485 (Application to Register Permanent Residence or Adjust Status) and that I-485 has been pending for 180 days or more and they have already properly requested to port to a new employer.

Under AC21, when the beneficiary of a valid Form I-140 employment-based immigration visa petition files an application to adjust his or her status to that of a lawful permanent resident, and that application remains pending for more than 180 days, the beneficiary may then “port” to a new job if that job is in the same or similar occupational classification as the original one. Codified at section 204(j) of the INA, 8 U.S.C. 1154(j), the provision reads: JOB FLEXIBILITY FOR LONG DELAYED APPLICANTS FOR ADJUSTMENT OF STATUS TO PERMANENT RESIDENCE A [employment-based] petition for an individual whose application for adjustment of status pursuant to section 245 has been filed and remained unadjudicated for 180 days or more shall remain valid with respect to a new job if the individual changes jobs or employers if the new job is in the same or a similar occupational classification as the job for which the petition was filed.

As of January 17, 2017, eligible beneficiaries must notify USCIS of their intent to port to new employment by filing a Supplement J to Form I-485, found at https://www.uscis.gov/i-485supj. If the beneficiary ported prior to the implementation of Supplement J, the beneficiary must have affirmatively and properly notified USCIS in writing. USCIS will adjudicate and must make a favorable determination concerning the beneficiary’s porting eligibility in order for the beneficiary to be eligible to receive notices of an intent to revoke or of a revocation. These beneficiaries may file an appeal of or a motion on an adverse decision as an affected party.

Regulations state that USCIS may require the beneficiary to inform USCIS if he or she intends to port and to submit evidence that the new job is in the same or a similar occupation before final action is taken on the pending Form I-485. See 8 C.F.R. 245.25. In light of recent litigation and AC21, USCIS is reinterpreting its regulations governing revocation on notice in 8 C.F.R. 205.2.

By comparison, in instances of automatic revocation based on withdrawal or business termination, an approved I-140 remains valid if at least 180 days have passed since approval prior to the withdrawal request or business termination or an associated adjustment of status application has been pending for 180 days or more at the time of the withdrawal request or business termination, unless the petition’s approval is revoked on other grounds. 8 C.F.R. 205.1(a)(3)(iii)(C) and (D). Additionally, beneficiaries of such petitions retain their priority dates. See Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers, 81 FR 82398 (Nov. 18, 2016).

This reinterpretation of the regulations concerning who may participate in visa petition adjudications will now include beneficiaries who have affirmatively and timely demonstrated porting eligibility to USCIS. This reinterpretation, however, is limited only to these beneficiaries.

3trs tbls1-immigrationandnationalitylaw location-san-diego

We are available to represent Employment Based Adjustment of Status Applicants in the following localities: San Diego County including San Diego, Carlsbad, and Escondido; Los Angeles County including Beverly Hills, Los Angeles, West Los Angeles, Burbank, Hollywood, Van Nuys, Whittier, Woodland Hills, and Long Beach; Santa Clara County including San Jose, Milpitas, Santa Clara, and Sunnyvale; Alameda County including Oakland, San Leandro, and Berkeley; Sacramento County including Sacramento, Elk Grove, and Folsom; and Orange County including Santa Ana and Anaheim.

 

18
Nov 2017
Freedom Tower

 

AILA’s DOS Liaison Committee is seeking examples of clients that been asked to complete Form DS-5535, Supplemental Questions for Visa Applicants. AILA is gathering data to evaluate which visa applicants have been determined to warrant additional scrutiny in connection with terrorism or other national security-related visa ineligibilities.

The Department proposes requesting the following information, if not already included in an application, from a subset of visa applicants worldwide, in order to more rigorously evaluate applicants for terrorism or other national security-related visa ineligibilities:

  • Travel history during the last fifteen years, including source of funding for travel;
  • Address history during the last fifteen years;
  • Employment history during the last fifteen years;
  • All passport numbers and country of issuance held by the applicant;
  • Names and dates of birth for all siblings;
  • Name and dates of birth for all children;
  • Names and dates of birth for all current and former spouses, or civil or domestic partners;
  • Social media platforms and identifiers, also known as handles, used during the last five years; and
  • Phone numbers and email addresses used during the last five years.

Most of this information is already collected on visa applications but for a shorter time period, e.g. five years rather than fifteen years. Requests for names and dates of birth of siblings and, for some applicants, children are new. The request for social media identifiers and associated platforms is new for the Department of State, although it is already collected on a voluntary basis by the Department of Homeland Security (DHS) for certain individuals. Regarding travel history, applicants may be requested to provide details of their international or domestic (within their country of nationality) travel, if it appears to the consular officer that the applicant has been in an area while the area was under the operational control of a terrorist organization as defined in section 212(a)(3)(B)(vi) of the Immigration and Nationality Act, 8 U.S.C. 1182(a)(3)(B)(vi). Applicants may be asked to recount or explain the details of their travel, and when possible, provide supporting documentation.

3trs tbls1-immigrationandnationalitylaw location-san-diego

We are available to represent Employment Based Adjustment of Status Applicants in the following localities: San Diego County including San Diego, Carlsbad, and Escondido; Los Angeles County including Beverly Hills, Los Angeles, West Los Angeles, Burbank, Hollywood, Van Nuys, Whittier, Woodland Hills, and Long Beach; Santa Clara County including San Jose, Milpitas, Santa Clara, and Sunnyvale; Alameda County including Oakland, San Leandro, and Berkeley; Sacramento County including Sacramento, Elk Grove, and Folsom; and Orange County including Santa Ana and Anaheim.

 

17
Nov 2017
21366674_10102601305859025_4887331314958698755_o

Where does the Attorney sit?

Adjudicators USCIS Field Manual: https://www.uscis.gov/ilink/docView/AFM/HTML/AFM/0-0-0-1.html

 

15.2     Interview Environment.

(a) Adjudications Environment

It is essential that the person being interviewed appreciate the importance and seriousness of the proceedings. To ensure this, the setting in which the interview takes place must be orderly and official in appearance. Desktops should be uncluttered and files should be housed in cabinets. Flags, USCIS and DHS seals and other official displays can enhance the official appearance. Excessive amounts of personal items should not be displayed in view of applicants, as these may be distracting or detract from the serious nature of the proceedings.

Because adjudications units in local USCIS offices are generally very busy with a high volume of applicants appearing for interviews, it is essential that adequate office space be provided for each district adjudications officer.

Sufficient seating for the officer and the person being interviewed, attorney or other representative and family members should be provided. The attorney or other representative should be seated directly next to the person being interviewed to facilitate appropriate participation unless this cannot be accommodated due to the physical layout of the interview space. If the officer has a concern that the seating arrangements may be inhibiting or negatively impacting the interview process, he or she should contact a supervisor for guidance.

3trs tbls1-immigrationandnationalitylaw location-san-diego

We are available to represent Employment Based Adjustment of Status Applicants in the following localities: San Diego County including San Diego, Carlsbad, and Escondido; Los Angeles County including Beverly Hills, Los Angeles, West Los Angeles, Burbank, Hollywood, Van Nuys, Whittier, Woodland Hills, and Long Beach; Santa Clara County including San Jose, Milpitas, Santa Clara, and Sunnyvale; Alameda County including Oakland, San Leandro, and Berkeley; Sacramento County including Sacramento, Elk Grove, and Folsom; and Orange County including Santa Ana and Anaheim.

 

16
Nov 2017
file0001318703631

 

Is it permissible to enroll in school while in B-1/B-2 status?
No, it is not.  The regulations, at 8 CFR 214.2(b)(7), specifically prohibit a course of study in the United States while in B-1 or B-2 status.
Before enrolling in a course of study, individuals who are in B-1 or B-2 status must first acquire F-1 (academic student) or M-1 (vocational student) status.  Enrolling in a course of study while in B-1/B-2 status will result in a status violation.  Individuals in B-1 or B-2 status, who have violated their nonimmigrant status by enrolling in a course of study, are not eligible to extend their B status or change to F-1 or M-1 status. These regulations provide no exceptions.
How can I obtain F-1 or M-1 status?
If you currently hold B-1 or B-2 nonimmigrant status and would like to enroll in a course of study,you may apply to change to either F-1 or M-1 student status if:
You have not yet enrolled in classes; Your current status has not expired; and You have not worked in the United States without employment authorization.
To change your nonimmigrant status from B-1 or B-2 to F-1 or M-1, you must file a Form I-539, Application to Extend/Change Nonimmigrant Status and include the required fee and documents listed in the instructions.

 

You must maintain your B-1 or B-2 status while your Form I-539 is pending. You will need to file a second Form I-539, with a separate fee, to request an extension of your B-1 or B-2 status if:
Your current status will expire more than 30 days before the initial F-1 or M-1 program start date. We may approve your Form I-539 change of status request only if you are maintaining your B-1/B-2 status up to 30 days before your program’s initial start date. If your status will expire more than 30 days before your F-1 or M-1 program’s initial start date, you must file a second Form I-539 requesting to extend your B-1 or B-2 status. If you do not file this extension request on time, we will deny your Form I-539 request to change to F-1 or M-1 status. Please check our processing times to determine if you need to file a request to extend your B-1/B-2 status. Your F-1 or M-1 program start date is deferred to the following academic term or semester because we did not make a decision on your Form I-539 change of status application before your originally intended F-1 program start date. You must file a second Form I-539 in order to bridge the gap in time between when your current status expires and the 30 day period before your new F-1 program start date.
Because extending your current stay in B-1 or B-2 status and changing from B-1 or B-2 to F-1 or M-1 status are two distinct benefits, you must pay a separate filing fee for each request. See the User Fee Statute, 31 U.S.C. 9701.

Please Note:

If you enroll in a course of study before we approve your Form I-539 change of status application, you will be ineligible to change your nonimmigrant status from B 1/B-2 to F-1 or M-1. If you apply to extend your B-1/B-2 status and you have already enrolled in a course of study, we will deny your extension request because you will have violated your status.
If You Are Not Eligible to Change Your Status
If you are not eligible to change your nonimmigrant status to F-1 or M-1 while in the United States, you may apply for an F-1 or M 1 visa at a U.S. consulate. For information about consular processing, please visit the Department of State’s website at www.state.gov/travel. For information about the Student and Exchange Visitor Program (SEVP), please visit the SEVP website at www.ice.gov/sevis or the Study in the States website at https://studyinthestates.dhs.gov/. We encourage all students and prospective students to work closely with their designated school official (DSO) to coordinate the timing of applying for change of status and enrolling in a course of study.

3trs tbls1-immigrationandnationalitylaw location-san-diego

We are available to represent Employment Based Adjustment of Status Applicants in the following localities: San Diego County including San Diego, Carlsbad, and Escondido; Los Angeles County including Beverly Hills, Los Angeles, West Los Angeles, Burbank, Hollywood, Van Nuys, Whittier, Woodland Hills, and Long Beach; Santa Clara County including San Jose, Milpitas, Santa Clara, and Sunnyvale; Alameda County including Oakland, San Leandro, and Berkeley; Sacramento County including Sacramento, Elk Grove, and Folsom; and Orange County including Santa Ana and Anaheim.

 

15
Nov 2017
file0002022362803

 

 

 

Call for Examples: Individuals Impacted by Delay of International Entrepreneur Rule

On July 11, 2017, the Trump Administration announced that it would delay implementation of the “International Entrepreneur Rule,” a final rule that was set to go into effect on July 17, 2017. The International Entrepreneur Rule would have provided temporary parole status to entrepreneurs who could demonstrate that their parole would provide a significant public benefit in the form of economic growth and the creation of U.S. jobs.

AILA is seeking examples of individuals who have taken steps to set up a business or obtain investor funding in reliance of the availability of the rule.

3trs

 

tbls1-immigrationandnationalitylaw location-san-diego

We are available to represent Employment Based Adjustment of Status Applicants in the following localities: San Diego County including San Diego, Carlsbad, and Escondido; Los Angeles County including Beverly Hills, Los Angeles, West Los Angeles, Burbank, Hollywood, Van Nuys, Whittier, Woodland Hills, and Long Beach; Santa Clara County including San Jose, Milpitas, Santa Clara, and Sunnyvale; Alameda County including Oakland, San Leandro, and Berkeley; Sacramento County including Sacramento, Elk Grove, and Folsom; and Orange County including Santa Ana and Anaheim.

 

15
Nov 2017
file000660800406

 

Beginning October 2, 2017, all I-140-based adjustment of status applicants will be required to appear for an in-person interview at a USCIS Field Office.  On September 28, 2017, the Office of the CIS Ombudsman held a stakeholder call featuring Daniel Renaud, Associate Director of the USCIS Field Operations Directorate, who explained the purpose of the new requirement and provided information that will be of assistance in preparing clients for interviews.

Who will be interviewed?

All individuals who filed I-140-based adjustment of status applications on or after March 6, 2017 (the date the President signed Executive Order 13780 “Protecting the Nation from Foreign Terrorist Entry in the United States”) will be interviewed. USCIS may waive the interview for children under the age of 14, but all family members will receive individualized interview notices regardless of age. Consistent with prior practice, approximately 5 to 10 percent of individuals who filed adjustment applications prior to March 6, 2017, will be interviewed.

Once the I-140 is approved, how will the adjustment application be routed?

Adjustment of status applications with approved I-140s will be sent to the National Benefits Center (NBC), which will prepare the file for interview at a USCIS field office. With the goal of ensuring the case is ready for favorable adjudication at the field office, the NBC will issue a Request for Evidence (RFE) on the I-485, if needed.

Will the field officer re-adjudicate the underlying I-140 at the interview?

Associate Director Renaud clearly stated on the Ombudsman’s stakeholder call that I-140 petitions will continue to be adjudicated by USCIS service centers, and that field offices are not to re-adjudicate the petition. Field offices are directed to assess the validity of the supporting documents upon which the Service Center relied in approving the I-140, and to evaluate whether the evidence submitted to support the petition was accurate, bona fide, and credible. The applicant will be asked to explain where they will work, what they are going to do, and their educational background and experience. USCIS will also confirm that the employer still intends to employ the applicant and that the applicant still intends to take up employment.  If the field officer finds the evidence does not support the approval, he or she must send it and all associated I-485s back to the Service Center with a recommendation to revoke the I-140.

How will USCIS field officers adjudicate the I-485?

USCIS asserts that all field officers have been trained to interview and adjudicate employment-based adjustment of status applications. On the Ombudsman’s stakeholder call, USCIS advised that adjustment applicants should expect to be asked any question relating to admissibility and adjustment eligibility. In addition, family members of the principal applicant should expect questions regarding their relationship to the principal and should be prepared to establish the bona fide nature of that relationship.

BrianJohnson_Logo_Black-01 tbls1-immigrationandnationalitylaw location-san-diego

We are available to represent Employment Based Adjustment of Status Applicants in the following localities: San Diego County including San Diego, Carlsbad, and Escondido; Los Angeles County including Beverly Hills, Los Angeles, West Los Angeles, Burbank, Hollywood, Van Nuys, Whittier, Woodland Hills, and Long Beach; Santa Clara County including San Jose, Milpitas, Santa Clara, and Sunnyvale; Alameda County including Oakland, San Leandro, and Berkeley; Sacramento County including Sacramento, Elk Grove, and Folsom; and Orange County including Santa Ana and Anaheim.