In this issue
- USCIS Changes Direct Filing Addresses for Certain Nonimmigrant Worker Petitions
- USCIS Policy Guidance Changes Definition of "Residing in the United States" for Purposes of Acquiring Citizenship
- USCIS Issues Guidance on Discretionary Employment Authorization for Foreign Nationals Paroled Into the United States
- Controversial New Rule Allows Indefinite Detention of Minors, Families
- New Final Rule Expands Definition of 'Public Charge,' 'Public Benefit' for Inadmissibility Determinations
- September Visa Bulletin Shows Employment-Based Advances, Retrogressions
- ICE Is Conducting Site Visits to STEM OPT Employers
- USCIS Returns Unselected FY 2020 H-1B Cap-Subject Petitions
- USCIS Is Rejecting Nonimmigrant Worker Petitions That Lack Required Name and Address
- Court Grants Summary Judgment for Plaintiffs in LexisNexis H-1B Denial Case
- USCIS Plans to Close 13 International Field Offices and Three District Offices
- State Dept. Releases DV-2020 Results
- New Publications and Items of Interest
USCIS Changes Direct Filing Addresses for Certain Nonimmigrant Worker Petitions
U.S. Citizenship and Immigration Services (USCIS) has changed the direct filing addresses for certain petitioners filing Form I-129, Petition for a Nonimmigrant Worker, as of September 1, 2019. USCIS said that starting October 1, 2019, "we may reject Forms I-129 that are filed at the wrong service center."
The changes apply to the following cap-exempt H-1B petitions:
- Continuing previously approved employment from the same employer
- Changing previously approved employment
- New concurrent employment
- Changing an employer
- Changing status to H-1B
- Notifying a U.S. consulate, port of entry, or pre-flight inspection
- Amending a petition
The announcement excludes petitions:
- Filed by cap-exempt petitioners or for cap-exempt entities
- That are cap-exempt based on a Conrad/Interested Government Agency waiver
- Where the employer is located in Guam or the beneficiary will be performing services in Guam. This also excludes all H-1B1, H-1B2, and H-1B3 petitions
USCIS Policy Guidance Changes Definition of "Residing in the United States" for Purposes of Acquiring Citizenship
U.S. Citizenship and Immigration Service (USCIS) has issued policy guidance, effective October 29, 2019, and applicable prospectively to applications filed on or after that date, that defines "residence" and clarifies distinctions between U.S. residence and physical presence. USCIS is changing its policy regarding eligibility for U.S. citizenship of children born to U.S. government employees and U.S. armed forces members employed or stationed outside the United States.
Specifically, the guidance:
- Clarifies that temporary visits to the United States do not establish U.S. residence and explains the distinction between residence and physical presence in the United States
- Explains that USCIS no longer considers children of U.S. government employees and U.S. armed forces members residing outside the United States as "residing in the United States" for purposes of acquiring U.S. citizenship under INA 320.
USCIS said it is rescinding the prior USCIS policy permitting children of U.S. government employees and U.S. armed forces members stationed outside of the United States to be considered "residing in" the United States. The changes also will affect the ability of U.S.-born citizens to transmit citizenship to children if they do not meet the more restrictive test for residing in the United States.
Read the USCIS Policy Alert
Read the USCIS announcement
Read the statement from Acting USCIS Director Ken Cuccinelli
USCIS Issues Guidance on Discretionary Employment Authorization for Foreign Nationals Paroled Into the United States
U.S. Citizenship and Immigration Service (USCIS) recently issued policy guidance on its discretion to grant employment authorization to foreign nationals paroled into the United States, including those who are otherwise inadmissible.
The agency noted that employment authorization for such parolees is not automatic and that the agency "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." The policy guidance includes a list of positive and negative factors an officer may consider when "balancing the totality of the circumstances and determining whether an applicant warrants a favorable exercise of discretion."
USCIS said the 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.
Read the USCIS announcement
Read the USCIS policy alert
Read the USCIS policy manual, Chapter 2—Parolees
Controversial New Rule Allows Indefinite Detention of Minors, Families
The Departments of Homeland Security (DHS) and Health and Human Services announced a final rule, effective October 22, 2019, to terminate the Flores settlement agreement and "ensure the humane detention of families."
Many advocates and others have expressed concern. Among other things, in addition to concerns about potentially lengthy detentions of noncriminal immigrants, including children, commenters said DHS should not be allowed to self-license detention facilities because current facilities do not have adequate oversight and, as a result, DHS is not currently capable of maintaining clean, humane, and safe detention centers. Legal advocates have filed a notice to challenge the rule in court.
Click here for the Joint agency rule
Read the DHS press conference
Click here for the Flores settlement agreement
Read the Human Rights Watch comments on related proposed rule
Click here to read the notice to challenge rule
New Final Rule Expands Definition of 'Public Charge,' 'Public Benefit' for Inadmissibility Determinations
A new U.S. Citizenship and Immigration Services (USCIS) final rule prescribes how the Department of Homeland Security (DHS) will determine ineligibility for admission or adjustment of status based on whether an individual is likely to become a "public charge," which relates to the use of various forms of public assistance.
The 217-page final rule defines certain terms critical to the public charge determination, such as "public charge" and "public benefit," and explains the factors DHS will consider in the totality of the circumstances when making a public charge inadmissibility determination. The final rule also addresses USCIS's authority to issue public charge bonds in the context of applications for adjustment of status. Finally, the rule includes a requirement that those seeking an extension of stay or change of status demonstrate that they have not, since obtaining the nonimmigrant status they seek to extend or change, received public benefits over the designated threshold, as defined in the rule.
Among other things, the final rule notes that DHS is revising its interpretation of "public charge" to "incorporate consideration" of an individual's "reliance on or receipt of non-cash benefits such as the Supplemental Nutrition Assistance Program (SNAP), or food stamps, Medicaid; and housing vouchers and other housing subsidies." DHS said the intent is "to better ensure that aliens subject to the public charge inadmissibility ground are self-sufficient, i.e., do not depend on public resources to meet their needs, but rather rely on their own capabilities, as well as the resources of family members, sponsors, and private organizations."
The rule does not apply to those whom Congress exempted from the public charge ground of inadmissibility, such as asylees, refugees, or other vulnerable populations listed as exempt in the final rule, or to those for whom DHS has exercised its discretion to waive the ground of inadmissibility.
The state of California and advocacy groups have filed several lawsuits challenging the final rule.
Read the USCIS announcement
Click here for the Federal Register final rule at 84 Fed. Reg. 41292 (Aug. 14, 2019)
Read the news reports, NBC News, LA Times, Politico, BBC
September Visa Bulletin Shows Employment-Based Advances, Retrogressions
The Department of State's Visa Bulletin for September 2019 shows both advances and retrogressions in employment-based categories.
The bulletin notes a combination of a dramatic change in the U.S. Citizenship and Immigration Services (USCIS) demand pattern for adjustment-of-status applicants during July and a larger-than-anticipated return of unused numbers that had been provided to consular offices for July use. As a result, the bulletin notes, it has been possible to advance the employment first and second preference September final action dates for most countries, as well as the India employment fifth preference.
On the other hand, several employment-based preference categories have retrogressed or become "Unavailable" for the remainder of fiscal year (FY) 2019, including the Worldwide employment fourth preference, and the China and India employment first and third preferences.
The bulletin notes that it is "likely that corrective action will also be required for other preferences prior to the end of the fiscal year." Numbers will once again be available for applicants in these preference categories beginning October 1, 2019, under the FY 2020 annual numerical limitations.
The bulletin also notes that the employment-based preference numerical limit for FY 2019 is 141,918.
Read the Visa Bulletin for September 2019
ICE Is Conducting Site Visits to STEM OPT Employers
According to reports, new site visits are underway by U.S. Immigration and Customs Enforcement (ICE) to question foreign students and company managers on optional practical training (OPT) in the fields of science, technology, engineering, and mathematics (STEM). The site visits are pursuant to a rule on STEM OPT published in May 2016.
The Department of Homeland Security (DHS) noted that the new provision allows DHS to perform site visits to employer locations that train STEM OPT students. DHS said its intent during such site visits is "to confirm that information reported on the student's Form I-983 concerning the training opportunity is accurate, while not placing an unnecessary burden on employers." DHS will provide notice to an employer at least 48 hours before any site visit "unless the visit is triggered by a complaint or other evidence of noncompliance with the STEM OPT extension regulations. In these cases, DHS reserves the right to conduct a site visit without notice."
Among other things, DHS said that as part of a site visit, it may confirm that the employer has sufficient resources and supervisory personnel to effectively maintain the program, and ask the employer to provide the evidence used to assess wages of similarly situated U.S. workers.
Read the DHS information on STEM OPT employer site visits
Click here for the May 2016 STEM OPT regulation
Read the Forbes news report
USCIS Returns Unselected FY 2020 H-1B Cap-Subject Petitions
U.S. Citizenship and Immigration Services (USCIS) said it has returned all fiscal year (FY) 2020 H-1B cap-subject petitions that were not selected in its computer-generated random process. On May 17, 2019, USCIS announced that it had completed data entry of all selected H-1B cap-subject petitions for FY 2020.
Read the latest USCIS notice
Read the May announcement
USCIS Is Rejecting Nonimmigrant Worker Petitions That Lack Required Name and Address
U.S. Citizenship and Immigration Services (USCIS) recently issued a reminder that as of August 5, 2019, it is rejecting Form I-129 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 is subjecting 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. USCIS said it 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 I-129 because of the duplicate addresses.
Read the USCIS notice
Court Grants Summary Judgment for Plaintiffs in LexisNexis H-1B Denial Case
The U.S. District Court for the District of Columbia recently granted summary judgment for plaintiffs and denied defendants' motion to dismiss in an H-1B case, RELX, Inc. v. Baran. The plaintiffs, RELX, Inc., d/b/a LexisNexis USA, and a data analyst for Lexis Nexis in F-1 student status, alleged that the California Service Center, U.S. Citizenship and Immigration Services (USCIS); the Department of Homeland Security; and others violated the Administrative Procedure Act when they denied LexisNexis' H-1B petition on behalf of the data analyst.
The government responded to the H-1B petition with a request for evidence (RFE) related to whether the data analyst position was a specialty occupation, finally denying the petition after LexisNexis sent documentation. Plaintiffs filed suit, but shortly before they filed their opening motion, the government reopened the petition without notifying defendants or providing a reason. Plaintiffs then moved for summary judgment, seeking an order from the court directing USCIS to grant the H-1B petition, but the government filed a motion to dismiss in light of the fact that it had reopened the case.
Among other things, the court noted that an agency's failure to set forth its reasons for a decision constitutes arbitrary and capricious action, and the court must undo the agency action. The court also noted that the government issued an RFE requesting nearly identical information as it did when it last reviewed the petition. Also, upon imminent expiration of the data analyst's F-1 visa, she would have lost her job and been required to leave the United States for an extended period of time, thus causing "significant hardship," the court observed. Because the agency failed to request any new information when it attempted to reopen the petition, the court found the circumstances of the reopening "highly suspect and contrary to the regulations." Finding that the LexisNexis position was "a distinct occupation which required a specialized course of study," as supported by a "mountain of evidence" that "more than meets the preponderance of the evidence standard," the court concluded that the agency's decision to deny the H-1B petition was not based on a consideration of the relevant factors, was a clear error of judgment, and that USCIS "acted arbitrarily, capriciously, and abused its discretion in denying employer's petition for H-1B visa status" on behalf of the data analyst.
USCIS Plans to Close 13 International Field Offices and Three District Offices
U.S. Citizenship and Immigration Services (USCIS) has announced plans to close 13 international field offices and three district offices between now and August 2020. The first planned closures are the field offices in Monterrey, Mexico, and Seoul, South Korea, at the end of September 2019.
USCIS said that many functions currently performed at international offices "will be handled domestically or by USCIS domestic staff on temporary assignments abroad." As part of this shift, the Department of State (DOS) will assume responsibility for certain in-person services that USCIS currently provides at international field offices. USCIS said it is working closely with DOS "to minimize interruptions in immigration services to affected applicants and petitioners."
USCIS said it plans to maintain operations at its international field offices in Beijing and Guangzhou, China; Nairobi, Kenya; New Delhi, India; Guatemala City, Guatemala; Mexico City, Mexico; and San Salvador, El Salvador.
Read the USCIS notice
State Dept. Releases DV-2020 Results
The Department of State's (DOS) Kentucky Consular Center in Williamsburg, Kentucky, has registered and notified the winners of the DV-2020 diversity lottery. Approximately 83,884 applicants have been registered and notified and may now make an application for an immigrant visa. Since it is likely that some of the persons registered will not pursue their cases to visa issuance, DOS said this larger figure should ensure that all DV-2020 numbers will be used during fiscal year 2020 (October 1, 2019, to September 30, 2020).
Applicants registered for the DV-2020 program were selected at random from 14,722,798 qualified entries (23,182,554 with derivatives) received during the 34-day application period that ran in late 2018. The visas were apportioned among six geographic regions with a maximum of seven percent available to persons born in any single country.
During the visa interview, principal applicants must provide proof of a high school education or its equivalent, or show two years of work experience in an occupation that requires at least two years of training or experience within the past five years. Those selected will need to act on their immigrant visa applications quickly, DOS said. Applicants should follow the instructions in their notification letters.
Read the Visa Bulletin for August 2019, including the country-by-country breakdown.
New Publications and Items of Interest
Advisories and tips:
- Community Advisory: Social Media, Criminalization, and Immigration has been published by the National Lawyers Guild's National Immigration Project. This advisory summarizes ways in which immigration agents may use social media against those in removal proceedings or involved in criminal cases.
- How to safeguard your data from searches at the border is the topic of several recent articles and blogs. See examples here and here.
- Listings and links to cases challenging executive orders, and related available pleadings