USCIS’ Change to How ‘Unlawful Presence’ Is Calculated Is Defeated in Court

By:Leslie Dellon

A federal district court stopped U.S. Citizenship and Immigration Services (USCIS) from drastically changing how the agency determines when a foreign student or exchange visitor is “unlawfully present” in the United States. “Unlawful presence” is defined by law as any time a foreign national spends in the United States after their authorized stay has ended.

Students and exchange visitors are often given “duration of status” while they’re in school or training. For years, USCIS’ policy for those admitted to the United States in duration of status was to begin counting unlawful presence from the day after an agency official determined they were out of status.

This way, the student or exchange visitor had a definite starting point to calculate the number of days they were unlawfully present. An individual who is unlawfully present in the United States for more than 180 days is subject to a penalty preventing them from returning to the United States for years.

More information https://www.inmigracionyvisas.com/a4753-Unlawful-Presence-Is-Defeated-in-Court.html

 

https://www.inmigracionyvisas.com/a4753-Unlawful-Presence-Is-Defeated-in-Court.html

USCIS Clarifies Special Immigrant Juvenile Classification To Better Ensure Victims Of Abuse

U.S. Citizenship and Immigration Services today clarified requirements regarding the Special Immigrant Juvenile (SIJ) classification.

To ensure consistency surrounding this classification, USCIS is issuing three Administrative Appeals Office (AAO) adopted decisions. Through these adopted decisions, USCIS clarifies that it requires evidence of a court’s intervention to provide relief from abuse, neglect or abandonment beyond a statement that the juvenile is dependent on the court. This level of intervention from the court serves as an indicator as to whether the SIJ classification is sought for its intended purpose of relief from parental abuse, neglect or abandonment and not primarily to obtain an immigration benefit. Many juvenile court orders already contain this level of detail.

USCIS also clarifies that it will consider qualifying orders from state courts, provided the petitioner met the applicable definition of a juvenile under state law when the order was issued and the court determined the juvenile was subject to parental abuse, neglect, abandonment or similar maltreatment. These clarifications will provide guidance to adjudicators in evaluating juvenile court orders issued under different state laws in the adjudication of petitions for federal SIJ classification.

Additionally, USCIS is no longer requiring evidence that a state court had the authority to place a petitioner in the custody of an unfit parent in order to make a qualifying determination regarding parental reunification for purposes of SIJ classification.

“Through these clarifications, USCIS adjudicators will help ensure those who are victims and truly need protection from abuse, neglect, abandonment or a similar basis under state law receive the assistance they need,” said USCIS Acting Director Ken Cuccinelli. “These new clarifications will better protect deserving juvenile immigrants while also promoting program integrity and upholding our laws. Congress needs to address loopholes in the SIJ program to better protect children.”

USCIS will also reopen the comment period for the proposed rule, Special Immigrant Juvenile Petitions, for 30 days to gather more information so it can clarify SIJ requirements by rulemaking. USCIS will accept comments through Nov. 15, 2019. In recent years, the SIJ classification has increasingly been sought by juvenile and young adult immigrants solely for the purposes of obtaining lawful immigration status and not due to abuse, neglect or abandonment by their parents. Through this rulemaking, USCIS seeks to realign the SIJ classification with congressional intent, implement statutorily mandated changes and address shortcomings in the regulations that threaten the integrity of the SIJ program.

USCIS acknowledges the potential for reliance interests; however, these three adopted AAO decisions do not create legally binding rights or change substantive requirements. They will go into effect on Oct. 15, 2019 and will apply to pending and future petitions. Related materials are available to the public: the three adopted AAO decisions, and the Special Immigrant Juvenile Petitions proposed rule, 76 FR 54978 (PDF).

The SIJ classification was established by Congress in 1990 to provide a pathway to legal status for children in the U.S. foster care system who required court intervention to protect them from parental abuse, abandonment or neglect. While there is no limit on the number of SIJ petitions that USCIS is able to approve each year, there is a limit to the number of SIJ-based adjustments that USCIS may approve due to visa availability. For the past several years, USCIS has granted approximately 5,000 SIJ adjustments each year.

Source: U.S. Citizenship and Immigration Services
https://www.inmigracionyvisas.com/a4541-Immigrant-Juvenile-Classification-to-Better-Ensure-Victims-of-Abuse.html

USCIS Issues Guidance On Discretionary Employment Authorization For Parolees

U.S. Citizenship and Immigration Services (USCIS) issued policy guidance in the USCIS Policy Manual to address its discretion to grant employment authorization to foreign nationals who are paroled into the United States, including those who are otherwise inadmissible.

Certain foreign nationals may be paroled into the United States for urgent humanitarian reasons or significant public benefit. Parolees are not entitled to employment authorization solely because they are paroled into the United States, but instead must establish eligibility and apply for employment authorization. USCIS will only consider employment authorization for parolees when, based on the facts and circumstances of each individual case, USCIS finds that a favorable exercise of discretion is warranted. 

“Directly addressing loopholes that encourage the exploitation of our immigration system is the only way forward,” said Acting Director Ken Cuccinelli. “Responsible stewardship of our discretionary authorities enhances our ability to provide relief to those who lawfully qualify for it. With that in mind, USCIS is taking action within its discretionary authority by only granting employment authorization to parolees after consideration of all relevant factors on a case-by-case basis. This decision is in response to the national emergency at the southern border where foreign nationals are entering the United States illegally, as well as based on a review of USCIS adjudicatory practices over the past few years.” 

USCIS is taking action to strengthen affected programs, such as parole, within its discretionary authority. Through this update, USCIS is providing adjudicators with guidance specific to parole-based employment authorization focusing on officers’ discretion and responsibility to grant employment authorization only after careful consideration of all relevant factors on a case-by-case basis. The policy update aligns USCIS’ guidelines for issuing discretionary employment authorization based on parole with current immigration enforcement priorities. 

USCIS continues to adjudicate all petitions, applications, and requests fairly, efficiently, and effectively on a case-by-case basis to determine if they meet all standards required under applicable laws and regulations. 

This policy update does not affect individuals paroled into the United States under the International Entrepreneur Rule. Such parolees are authorized to work based on their parole under current Department of Homeland Security regulations governing the International Entrepreneur parole program. 

Policy Alert 

SUBJECT: Employment Authorization for Parolees 

Purpose

U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual to address USCIS’ discretion to grant employment authorization to foreign nationals paroled into the United States, including those who are otherwise inadmissible. 

Background

Certain foreign nationals may be paroled into the United States under INA 212(d)(5) for urgent humanitarian reasons or significant public benefit. USCIS has discretion to grant these foreign nationals employment authorization. Applicants are not entitled to employment authorization. USCIS determines whether to grant discretionary employment authorization on a case-by-case basis, taking into account all factors and considering the totality of the circumstances of each individual case. 

USCIS has determined that it is necessary to issue this guidance at this time because there is a national emergency at the U.S. southern border where foreign nationals are entering the U.S. illegally. See Presidential Proclamation 9844 of February 15, 2019, Declaring a National Emergency Concerning the Southern Border of the United States, 84 FR 4949; Sec. 11 of E.O. 13767 of January 25, 2017, Border Security and Immigration Enforcement Improvements, 82 FR 8793. USCIS also has determined that officers may need more guidance on the use of discretion in employment authorization adjudications. 

This policy guidance provides officers with helpful tools based on existing policies to aid in their discretionary adjudications and to help ensure that requests for employment authorization based on parole are properly adjudicated. This guidance, contained in Volume 10 of the Policy Manual, replaces the guidance found in Chapter 55 of the Adjudicator’s Field Manual (AFM). The guidance contained in the Policy Manual is controlling and supersedes any related prior contradictory USCIS guidance. 

(Note: This policy update does not affect International Entrepreneur parolees. Such parolees are employment authorized incident to their parole pursuant to current DHS regulations governing the International Entrepreneur parole program.) 

Policy Highlights

Emphasizes the use of discretion when determining whether to grant employment authorization for foreign nationals paroled into the United States in keeping with existing policies. 

Provides a list of positive and negative factors that an officer may consider when balancing the totality of the circumstances and determining whether an applicant warrants a favorable exercise of discretion. 

Citation 

Volume 10: Employment Authorization, Part B, Specific Categories, Chapter 2, Parolees [10 USCIS-PM B.2].

Source: U.S. Citizenship and Immigration Services (USCIS)

https://www.inmigracionyvisas.com/a4403-Guidance-On-Discretionary-Employment-Authorization-For-Parolees.html

USCIS Rejecting Form I-129 Petitions That Lack Required Name and Address

Since August 5, USCIS will begin rejecting Form I-129, Petition for a Nonimmigrant Worker, petitions that do not include the petitioner’s or applicant’s name and primary U.S. office address in Part 1 of the form.

USCIS will subject all requests for nonimmigrant classifications filed on Form I-129 to this rejection criteria, including the time-sensitive H-2A visa classification for temporary agricultural workers. Those completing Form I-129, including agents and preparers who are not eligible to submit or are not otherwise recognized on a valid Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative, must ensure Part 1 contains the petitioner’s or applicant’s name and primary U.S. office address. 

USCIS recognizes that in certain circumstances, the person signing Part 8 of Form I-129 may be an employee of the petitioning entity and have the same address as that of the petitioner named in Part 1 of the form. In such a case, USCIS would not reject the Form I-129 because of the duplicate addresses. 

Because of the time-sensitive nature of the H-2A visa classification in particular, we remind H-2A petitioners that failure to follow this guidance may result in rejections of their petitions, adding time to the H-2A process. 

USCIS currently rejects Form I-129 for several reasons. These include, but are not limited to, lack of signature, incorrect fees, or unauthorized third party signing on behalf of the petitioner. 

DHS regulations require every form to be submitted in accordance with the form instructions, and allow USCIS to reject any benefit request that is not filed in compliance with the regulations governing the specific benefit request. See 8 CFR 103.2(a)(1) and 8 CFR 103.2(a)(7)(ii)(C). 

The petitioner’s or applicant’s primary U.S. office address in Part 1 of Form I-129 must not be the address of the petitioner’s or applicant’s outside counsel or clients. Failure to include the petitioner’s or applicant’s name or providing the address of the petitioner’s or applicant’s outside counsel or clients in Part 1 creates unnecessary delays in the adjudication of Form I-129 and may result in its rejection. 

The Instructions for Form I-129 (PDF) state, in relevant part: 

Petitioner Information
Complete the “Legal Name of Petitioner” field (if the petitioner is an individual person or a company or organization). For mailing address, list the address of the petitioner’s primary office within the United States. 

In many instances, the petitioner’s or applicant’s primary U.S. office address will determine the filing jurisdiction. Information about where to file Form I-129 is available on the Direct Filing Addresses for Form I-129, Petition for a Nonimmigrant Worker page. 

Form I-129 petitions that USCIS rejects due to missing information can generally be refiled with the required information and fee. However, there are instances when a refiled petition or application would be rejected, such as when a statutory cap-subject petition is resubmitted after USCIS has received a sufficient number of petitions projected as needed to reach the congressionally mandated numerical limit. 

Source: U.S. Citizenship and Immigration Services 

https://www.inmigracionyvisas.com/a4366-Form-I-129-requires-name-and-address.html

USCIS Announces Plan To Improve The Naturalization Test

U.S. Citizenship and Immigration Services (USCIS) is revising the current naturalization test with improvements to ensure it continues to serve as an accurate measure of a naturalization applicant’s civics knowledge and that it reflects best practices in adult education assessments. The goal is to create a meaningful, uniform, and efficient test that will assess applicants’ knowledge and understanding of U.S. history, government and values.

This spring, the former USCIS director signed the strong>Revision of the Naturalization Civics Test Memorandum (PDF, 202 KB). This memorandum announces the revision of the naturalization test and formalizes a decennial revision schedule of the naturalization test based on adult education best practices.

“Granting U. S. citizenship is the highest honor our nation bestows,” said USCIS Acting Director Ken Cuccinelli. “Updating, maintaining, and improving a test that is current and relevant is our responsibility as an agency in order to help potential new citizens fully understand the meaning of U.S. citizenship and the values that unite all Americans.”

In December 2018, USCIS formed a naturalization test revision working group with members from across the agency. The working group has been reviewing and updating the naturalization test questions. The working group will also assess potential changes to the speaking portion of the test. USCIS is soliciting the input of experts in the field of adult education to ensure that this process is fair and transparent. After careful analysis of the pilot, and thorough officer training, USCIS will set an implementation date in December 2020 or early 2021. 

Section 312 of the Immigration and Nationality Act outlines the English and civics requirements for naturalization. By law, candidates for naturalization must have “…an understanding of the English language, including an ability to read, write, and speak words in ordinary usage in the English language…” and “…knowledge and understanding of the fundamentals of the history, and of the principles and form of government, of the United States...” This test revision will comply with all statutory and regulatory requirements, and USCIS will pilot it this fall.

In Fiscal Year 2018, USCIS naturalized nearly 757,000 people, a five-year high in new oaths of citizenship. The naturalization test revision is a key part of preparing legal immigrants to fully exercise their rights and meet their responsibilities. 

Source: U.S. Citizenship and Immigration Services (USCIS)
https://www.inmigracionyvisas.com/a4329-USCIS-Improve-the-Naturalization-Test.html

USCIS Hits H-1B Cap Within Days, Showing America Needs Foreign Workers

Written by Walter Ewing

As another H-1B season comes to an end, one thing is clear: the demand for educated foreign workers is as high as ever. The annual H-1B cap was reached within a mere 5 business days. U.S. Citizenship and Immigration Services (USCIS) began accepting petitions for Fiscal Year 2020 on April 1. On April 12, the agency announced it’s received more petitions than the entire yearly cap allows.

There is a limit of 65,000 regular visas available each fiscal year for new hires. Another 20,000 visas are for foreign professionals who graduate with a master’s degree or Ph.D. from a U.S. university. In recent years, demand for H-1B visa numbers has far outpaced the supply. In fact, this is the seventh consecutive year that the regular H-1B visa cap was hit within a week.


USCIS issues H-1B policy changes

Beyond the inadequate number of visas, employers faced last-minute USCIS policy changes three years in a row. These policy announcements affected H-1B petitions submitted close to the first day of the filing season. 

USCIS announced a change in how petitions are processed only two short weeks before the start of this year’s filing deadline. Employers said it threw the whole program “into chaos.” 

The agency made another change in January 2019. USCIS reversed the order petitions are selected in. In the past, USCIS selected petitions for the 20,000 “master’s exemption” first. Now, the agency will first conduct a lottery using all H-1B petitions. After that lottery is complete, it will run a second lottery with all remaining “master’s exempt” petitions. 


How this may affect H-1B petition selection

This change will likely result in USCIS selecting more petitions for workers with U.S. master’s degrees or Ph.Ds. But that change doesn’t necessarily represent the best choice for every available position. 

Under the new system, some workers may slip through the cracks. 

For instance, a foreign national with a master’s degree from a U.S. university might have a better chance of getting an H-1B visa number than a scientist with a Ph.D. from a foreign university. 


H-1B workers will still be in high demand

Though these new policies may alter the H-1B selection process, the workers will continue to be in high demand. The inadequacy of the H-1B cap is one sign. But the fact that unemployment rates are low in occupations that use large numbers of workers with H-1B visas is another sign. 

For example, jobs in the science, technology, engineering, and math (STEM) field have low unemployment rates compared to the national average. H-1B workers are most commonly employed in STEM jobs. These low unemployment rates signal a demand for labor that exceeds supply. This means H-1B workers are not displacing native-born workers. 

H-1B workers also tend to earn higher wages than comparable U.S.-born workers, even after accounting for differences in age and occupation. This holds true across fields like information technology, engineering, healthcare, and post-secondary education. Employers aren’t saving money by hiring H-1B workers. This suggests these workers have skills which are in high demand. 

The arbitrary numerical cap on the number of new H-1B visas does not serve the interests of U.S. workers or the U.S. economy. Rather, the cap starves the labor force of talented foreign professionals who fuel economic growth and innovation. 

Source: www.immigrationimpact.com

https://www.inmigracionyvisas.com/a4109-America-Needs-Foreign-Workers.html

Re-Registration Period Now Open with Temporary Protected Status under South Sudan’s Designation

U.S. Citizenship and Immigration Services (USCIS) announced today that current beneficiaries of Temporary Protected Status (TPS) under South Sudan’s designation who want to maintain their status through the 18-month extension period ending on Nov. 2, 2020, must re-register between April 5, 2019 and June 4, 2019. 

Re-registration procedures, including how to renew employment authorization documents (EADs), have been published in the Federal Register and are available at uscis.gov/tps. 

All applicants must submit Form I-821, Application for Temporary Protected Status. Applicants may also request an EAD by submitting Form I-765, Application for Employment Authorization, when they file Form I-821 or separately at a later date. Like all USCIS forms, both forms are free for download from the USCIS website at uscis.gov/forms. 

USCIS will issue new EADs with a Nov. 2, 2020, expiration date to eligible beneficiaries under South Sudan’s TPS designation who timely re-register and apply for EADs. Given the timeframe involved with processing TPS re-registration applications, however, we recognize that not all re-registrants will receive new EADs before their current EADs expire on May 2, 2019. Accordingly, we have automatically extended the validity of those EADs for 180 days, through Oct.29, 2019. 

On March 8, Secretary of Homeland Security Kirstjen M. Nielsen announced that the statutory conditions supporting South Sudan’s TPS designation on the basis of ongoing armed conflict and extraordinary conditions continue to exist and that the designation should be extended by 18 months. Secretary Nielsen made her decision after reviewing country conditions and consulting with appropriate U.S. government agencies. As a result, South Sudan’s TPS designation has been extended through Nov. 2, 2020. 

 

Source: www.uscis.gov 

https://www.inmigracionyvisas.com/a4098-Open-TPS-under-South-Sudans.html

USCIS Reaches FY 2020 H-1B Regular Cap

U.S. Citizenship and Immigration Services (USCIS) has received a sufficient number of petitions projected as needed to reach the congressionally-mandated 65,000 H-1B visa regular cap for fiscal year 2020. USCIS will next determine if we have received a sufficient number of petitions to meet the 20,000 H-1B visa U.S. advanced degree exemption, known as the master’s cap. 

The agency will reject and return filing fees for all unselected cap-subject petitions that are not prohibited multiple filings (PDF, 119 KB) .

USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed for current H-1B workers who have been counted previously against the cap, and who still retain their cap number, are exempt from the FY 2020 H-1B cap. USCIS will continue to accept and process petitions filed to: 

• Extend the amount of time a current H-1B worker may remain in the United States;
• Change the terms of employment for current H-1B workers;
• Allow current H-1B workers to change employers; and
• Allow current H-1B workers to work concurrently in a second H-1B position.

U.S. businesses use the H-1B program to employ foreign workers in specialty occupations. We encourage H-1B applicants to subscribe to the H-1B Cap Season email updates located on the H-1B Fiscal Year (FY) 2020 Cap Season page. 

Source: www.uscis.gov

https://www.inmigracionyvisas.com/a4097-USCIS-Reaches-FY-2020-H1B-Regular-Cap.html

SAVE Goes Completely Paperless

Starting June 1, benefit-granting agencies using U.S. Citizenship and Immigration Services’ (USCIS) SAVE (Systematic Alien Verification for Entitlements) Program can no longer submit paper versions of Form G-845, Verification Request. Previously, agencies submitted paper forms to request immigration status verification and for additional verification requests. Now all agencies must submit their requests and institute additional verification electronically, drastically reducing case processing time. 

SAVE provides a fast, secure and efficient service for federal, state and local benefit-granting agencies to verify a benefit applicant’s immigration status. 

“Without the use of paper during the verification process, SAVE will improve its efficiencies by reducing mailroom workloads and the time spent receiving and reviewing paper documents,” said Tammy Meckley, associate director of the Immigration Records and Identity Services Directorate (IRIS) at USCIS. “As a result, we will see a faster resolution of cases for both the requesting agency and the intended benefit recipient.” 

The SAVE paperless initiative is part of a larger effort by USCIS to eliminate paper-based forms, as the agency transitions to online submission of benefit requests. The SAVE Paperless Initiative will eliminate 170,000 paper form submissions and returned responses annually, reducing resource costs and postal fees. Additionally, the transition to a paperless environment will reduce case completion time from 20 days to less than five days. 

Source: U.S. Citizenship and Immigration Services’ (USCIS) 

http://www.inmigracionyvisas.com/a3822-SAVE-Goes-Completely-Paperless.html

USCIS Changes to Asylum Interview Scheduling Allows Long-Pending Cases to Languish

 

Written by Royce Murray 

U.S. Citizenship and Immigration Services (USCIS) made abrupt and sweeping changes to how the agency will schedule interviews for affirmative asylum applications. Rather than interviewing those who have been waiting months or years for their interview, asylum offices will now prioritize brand new filings ahead of all others waiting in the queue. 

While scheduling asylum interviews in a timely manner is important to applicants, as well as the government, this decision will create additional obstacles for many worthy applicants looking to successfully claim asylum. Over the years while applicants wait for an interview, detailed memories fade, supporting documents get lost, corroborating witnesses become harder to find, and evidence grows stale. Long delays also prevent family members from reuniting in safety together, as spouses or children may be left in tenuous situations outside of the United States. 

Announced in late January and effective immediately, USCIS will schedule interviews following three priorities: 

1. Applications previously scheduled but the interview had to be rescheduled at the request of the applicant or USCIS; 
2. Applications pending 21 days or less since filing; 
3. All other pending asylum applications, starting with newer filings and working back toward older filings. 

The trigger of this scheduling shift is the lack of adequate resources for the asylum program. 

USCIS currently reports a backlog of 311,000 pending asylum cases, which has steadily grown in the past five years as violent conditions in the Northern Triangle of Central America sent many asylum seekers to the U.S. southern border. Subjected to a fast-track deportation process called “expedited removal,” asylum seekers are given a preliminary screening by an asylum officer to protect against wrongfully deporting people back to grave harm. Many asylum officers were tasked with handling these screening interviews rather than previously filed, affirmative asylum cases, and there were not enough new officers brought on board to meet operational needs. 

The workload challenges the asylum program is facing right now are not new. In the mid-1990s, when the asylum program was unable to handle the volume of applications, the asylum system saw numerous reforms, including staffing up the program and delaying issuance of a work permit only to those whose applications were pending for six months. 

Those changes had an impact but as caseloads ebb and flow, USCIS must continue to adapt. When the need for asylum grows, so too must our commitment to protecting those at risk. Rather than pitting old cases against new cases, the agency must set the asylum program up for success by staffing the program with a sufficient number of asylum officers to meet demand.

 

Source: www.immigrationimpact.com 

http://inmigracionyvisas.com/a3768-Changes-to-Asylum-Interview-Scheduling.html