Registration Information for Diversity Green Card Lottery

The annual Diversity Immigrant Visa Lottery, which makes available 50,000 permanent resident visas ("green cards") to natives of countries deemed to have low rates of immigration to the U.S., is now open for online registration until November 6, 2018.  The Diversity Lottery is FREE and applications must be filed online through the official Department of State Diversity Lottery website.  Please visit the State Department Diversity Immigrant visa information site for eligibility information and to apply.  

Only applicants from certain eligible countries can apply in the Diversity Lottery, and must meet certain educational or work requirements (i.e. having a high school education or having worked in 2 of the last 5 years in a qualifying occupation).  

Lottery winners will be selected at random next year and can check whether they have been selected starting May 1, 2019.

New Immigration Policy to Deny Cases Without Issuing RFE or NOID

U.S. Citizenship and Immigration Services (USCIS) has released a new policy that gives immigration adjudicators discretion to deny any and all visa applications or petitions without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) in cases where initial evidence is missing or does not establish eligibility. This new guidance, which becomes effective September 11, 2018, replaces a prior policy which instructed adjudicators to request additional evidence in a case, unless there was no possible way that additional evidence could fix a deficiency in the case.

The intent of this guidance is to provide immigration officers with more discretion to deny a visa application without requesting further information first. This policy has even greater implications in light of USCIS’ other recent announcement instructing officers to initiate removal (deportation) proceedings if, upon denial of an application or petition an individual is unlawfully present in the United States. 

As USCIS continues to shift away from a focus on immigration benefits to a focus on immigration enforcement and stricter standards for approval of visa petitions, employers and foreign nationals should consider the following strategies to avoid consequences imposed by these new rules:

  • Take all precautions to ensure visa petitions and applications are filed with the requisite documentation and evidence. This includes overdocumenting how the employer and employee meet all of the visa eligibility requirements.
  • Applications to extend nonimmigrant visa status (including H-1B, L-1, O-1, and others) should be filed as early as possible (up to 6 months before expiration) to avoid any lapses in nonimmigrant status.
  • Employer’s should continue to extend the nonimmigrant status of their foreign national employees until their applications for lawful permanent residence are approved, in order to avoid situations where the employee is in unlawful presence and could be deported.
  • Employer’s should consider utilizing USCIS’s “premium processing” program when filing “change of employer” visa petitions to quickly obtain work authorization for a candidate and not have a candidate risk changing employers without an approval.

These new USCIS policies reinforce the importance of ensuring all visa petitions and applications include the required evidence to show the applicant meets the visa eligibility requirements. The chances of having a family or employment-based visa petition or application denied are significantly reduced when working with qualified immigration counsel to prepare a comprehensive application.

For more information or advice on how to navigate these or any other immigration policy changes, please don’t hesitate to contact me.

USCIS Policy Change Regarding Deportation Proceedings for Visa Applicants

U.S. Citizenship and Immigration Services (USCIS) has announced a sweeping new policy, effective immediately, that instructs USCIS officers to initiate removal (deportation) proceedings if, upon denial of an application or petition, an individual is unlawfully present in the United States. This new policy requires USCIS to issue a Notice to Appear (NTA) – a document issued to a foreign national instructing them to appear before an immigration judge for removal proceedings – in the following circumstances:

  • Where fraud or misrepresentation are substantiated or where an applicant abused any program related to the receipt of public benefits;
  • 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;
  • Where USCIS denies an Application for Naturalization on good moral character grounds because of a criminal offense;
  • Upon the denial of an application or petition, when an applicant is unlawfully present in the U.S.

This new policy is expected to dramatically impact a wide range of foreign workers, students, and U.S. employers. While historically NTAs have rarely been issued to employment-based visa applicant’s after the denial of an application, this policy shift appears to fall in line with President Trump’s executive orders focused on immigration enforcement and prosecution

Examples of employer-sponsored foreign nationals who may now be subject to removal proceedings include:

  • Individuals who have their application to extend or change to H-1B, L-1, or other nonimmigrant visa status denied, and whose visa status has expired while waiting for USCIS to adjudicate their application.
  • Individuals who have their application to change employers denied, and whose visa status has expired while waiting for USCIS to adjudicate their application.
  • Students who have their applications to extend their F-1 status or applications to change status to H-1B denied, and who have now fallen out of status under their student visa.
  • Individuals who have their application for either employment-based or family-based adjustment of status to permanent residence denied, and who now no longer have any nonimmigrant status.

While it is not clear how USCIS will implement these new guidelines, this change will nevertheless likely affect the lives of many individuals who have lived and worked in the U.S. lawfully for years. Foreign nationals that receive an NTA are advised to speak to qualified counsel to handle this sensitive matter. For questions on this or any immigration matter, please feel free to contact me.

Diversity Visa Green Card Lottery Is Accepting Applications

The annual Diversity Immigrant Visa Lottery, which makes available 50,000 permanent resident visas ("green cards") to natives of countries deemed to have low rates of immigration to the U.S., is now open for online registration until November 7, 2017.  The Diversity Lottery is FREE and applications must be filed online through the official Department of State Diversity Lottery website.  Please visit the State Department Diversity Immigrant visa information site for eligibility information and to apply.  

Only applicants from certain eligible countries can apply in the Diversity Lottery, and must meet certain educational or work requirements (i.e. having a high school education or having worked in 2 of the last 5 years in a qualifying occupation).  

Lottery winners will be selected at random next year and can check whether they have been selected starting May 1, 2018.

New Immigration Interviews for Employment-Based Green Cards

U.S. Citizenship and Immigration Services (USCIS) has announced that beginning October 1st in-person interviews will be required for individuals seeking to adjust from an employment-based nonimmigrant status (i.e. H-1B, L-1, O-1, etc.) to lawful permanent residence (or “green card”) status in the United States.  Interviews will also be required for family members of refugees or asylees who are seeking to join a principal asylee/refugee applicant.  While current policy generally waives interviews for employment-based adjustment of status applications, the new change is part of President Trump’s “extreme vetting” immigration policies.  

According to the USCIS announcement, immigration officers will interview employment-based green card candidates to verify the information provided in their I-140 applications and/or to discover new information and assess the credibility of the applicant in the interview.  In cases where an applicant may have ported his/her employment to a new employer, an immigration officer may seek to confirm whether the new employment is in the same or similar occupational category.

Employers and applicants should prepare for substantial delays in the adjudication of I-485 Applications to Adjust Status as local USCIS offices brace for the surge of now mandatory interviews.  Moreover, employers and applicants may soon see an increase in the costs associated with the permanent residency process, either in the form of increased application fees to cover the costs of hiring more USCIS officers to handle interviews, or through increased legal fees or employees needing to take leaves of absences to handle immigration processing issues.  

Applicants with pending I-485 or I-730 applications should anticipate being called into a local USCIS office for an in-person interview.  Applicants should be prepared in the interview to discuss the immigration benefit they are applying for and should have a complete understanding of the application that was filed on their behalf.  Employment-based green card applicants should be able to discuss the position they are working in, including where they work, what their pay is, and what their specific job duties are.  Family members of refugees/asylees should be prepared to prove their family relationship.  

This new change to the permanent residency process is expected to be onerous.  Employers and applicants should work closely with counsel to prepare for this interview process.  Our office will continue to monitor the rollout of this new policy.  For questions or help in preparing for these interviews, please contact us.

New Requirements for EB-2 National Interest Waiver Green Card

Last month, U.S. Citizenship & Immigration Services (USCIS) announced new, less subjective, requirements for foreign individuals seeking U.S. lawful permanent residence (“green card”) under the EB-2 National Interest Waiver (NIW) category.  The NIW category allows foreign nationals in the second employment-based immigration category to bypass the lengthy and sometimes difficult “labor certification” process, if they can show that their immigration to the U.S. is in America’s “national interest.”  

In order for a foreign national to prove “national interest” under the new criteria, he or she must demonstrate that:

  1. the proposed endeavor has both substantial merit and national importance;
  2. he/she is well positioned to advance the proposed endeavor; and
  3. on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.

In order to prove these criteria, the foreign national will have to show their work has national or global implications.  One example of this can be proof that the foreign national’s work “has significant potential to employ U.S. workers or has other substantial positive economic effects, particularly in an economically depressed area…”.  The applicant will also have to show that he/she is able to succeed with their plan by demonstrating that they have the ”education, skills, knowledge and record of success in related or similar efforts; a model or plan for future activities; any progress towards achieving the proposed endeavor; and the interest of potential customers, users, investors, or other relevant entities or individuals."  Lastly, the foreign national will have to prove that “in light of the nature of [their] qualifications or proposed endeavor, it would be impractical either for the foreign national to secure a job offer or for the petitioner to obtain a labor certification."  

This decision is fantastic news for U.S. employers, international entrepreneurs, startups, and professionals, and provides greater flexibility for foreign nationals seeking to qualify for EB-2 National Interest Waivers.

For more information, feel free to contact us.

New Rules For Employment-based Immigrant & Nonimmigrant Visa Programs

The Department of Homeland Security (DHS) has published new regulations to provide greater flexibility for high-skilled foreign workers who have an approved employment-based immigrant visa petition, while they wait for a green card.  The intent of these new rules will better enable U.S. employers to sponsor and retain high-skilled foreign workers, increase the ability of such workers to seek promotions, accept lateral positions, change employers, or pursue other employment options.  

The highlights of this rule change, include:

  • Retention of Approved Immigration Visa (I-140) Petitions:  Immigrant petitions submitted by U.S. employers to request permanent employment on behalf of a foreign national (Form I-140) may no longer be automatically revoked based on a request by the employer to withdraw the petition.  Additionally, the immigrant petition will not be revoked if the the request to withdraw is based on the termination of the employer’s business 180 days after either the I-140’s approval or the filing of an I-485 application for adjustment of status.  While the I-140 would remain valid, the foreign national would need a new job offer or new petition in order to apply for a green card.
  • Nonimmigrant Visa Grace Periods:  A one-time grace period of up to 60 days whenever employment ends, will allow for greater job portability for nonimmigrant workers (especially H-1B, E-1, E-2, E-3, L-1, O-1 and TN visa holders).  During the grace period the nonimmigrant worker may apply for an extension of stay or change of status.  While the nonimmigrant will not be authorized for employment during the grace period, it will provide flexibility to allow for new employment in case of sudden termination.
  • Employment Authorization in Compelling Circumstances:  In compelling circumstances, DHS will allow certain individuals with an approved I-140 petition, who are unable to obtain an immigrant visa because of numerical limits, to apply for a one-year employment authorization document (EAD).  This new rule would only apply to individuals in E-3, H-1B, H-1B1, L-1 or O-1 status.  DHS has identified “compelling circumstances” as serious illness or disabilities, employer retaliation, other substantial harm to the applicant, or significant disruption to the employer.
  • Employment Authorization Document Processing:  Certain individuals may be granted automatic EAD extensions for up to 180 days, so long as they timely renew their EAD and it is based on the same employment authorization category as the existing EAD.  The extension is available only to certain foreign nationals, including adjustment of status applicants and individuals filing for renewal of Optional Practical Training (OPT) based on a degree in a Science, Technology, Engineering, or Math (STEM) field. This provision does not apply to H-4, L-2, or E nonimmigrant spouses seeking an EAD renewal.

The new regulation will become effective January 17, 2017, three days before Donald Trump takes office.  These regulations should remain in place, unless Congress acts to cancel them.  Please contact our office for further questions or clarification.

Immigration Filing Fees Increasing

The Department of Homeland Security (DHS) has annouced that starting on December 23, 2016, U.S. Citizenship and Immigration Services (USCIS) filing fees for temporary visa petitions, family and employment-based visa petitions for lawful permanent residence (“Green Cards”), and applications for adjustment of status, naturalization, and waivers will increase.

The key employment-based petitions and applications that will see fee increases are as follows:

  • Petitions filed on behalf of non-immigrant workers, such as H-1B, L-1, O-1, E-2, P-1, TN, etc. (Form I-129): increase from $325 to $460.
  • Immigrant petitions filed on behalf of alien relatives (Form I-130): increase from $420 to $535.
  • Fiance(e) petitions (Form I-129F): increase from $340 to $535.
  • Immigrant petitions on behalf of alien workers (Form I-140): increase from $580 to $700.
  • Immigrant petition by alien entrepreneur under the EB-5 program (Form I-526): increase from $1,500 to $3,675.
  • Application for Regional Center Designation under the EB-5 program (Form I-924): increase from $6,230 to $17,795.
  • A new filing fee of $3,035 for the Form I-924A, which is used for applications under the EB-5 Regional Center program.
  • Application for adjustment of status (Form I-485): increase from $985 to $1140 (plus $85 biometrics fee).
  • Application for Employment Authorization Document (EAD) (Form I-765): increase from $380 to $410.
  • Application for naturalization/U.S. Citizenship (Form N-400): increase from $595 to $640 (plus $85 biometrics fee), but USCIS will reduce the fee to $320 for certain applicants with low income. 
  • Application for a certificate of citizenship (Form N-600): increase from $600 to $1,170
  • USCIS Immigrant Fee for individuals entering the U.S. on immigrant visas issued by a U.S. Embassy or Consulate abroad: increase from $165 to $220.

To view all of the USCIS filing fee increases, please visit https://www.uscis.gov/forms/our-fees

Those wishing to apply for immigration benefits should therefore submit petitions and applications as soon as possible to take advantage of the current fees.  Employers should also take these changes into consideration when budgeting for the immigration costs of their employees.

USCIS Announces New Visa Bulletin System for Employment-Based and Family-Sponsored Permanent Residence

U.S. Citizenship and Immigration Services (USCIS) and the Department of State (DOS) have announced that beginning with the October 1, 2015 Visa Bulletin, USCIS will be following a new system for determining immigrant visa availability for applicants waiting to file for employment-based or family-sponsored permanent residence.  This new system will allow eligible foreign nationals to file an application for adjustment of status to permanent residence before an immigrant visa becomes available to them; however, the application for adjustment of status still cannot be approved until an immigrant visa becomes available (i.e. the "priority date" becomes current).

Previously, in order for foreign nationals to apply for adjustment of status to permanent residence, individuals would have to wait until their priority date was listed as current in the monthly Visa Bulletin, which for most employment-based applicants would be the filing date of their PERM labor certification application.  That date would be considered current if it was prior to the cut-off date listed in the monthly Visa Bulletin for the individuals country of chargeability and employment-based preference category.

Under this new system, USCIS will begin accepting applications to adjust status to permanent resident according to a new Visa Bulletin filing date chart, which will establish two separate cut-off dates: 

  • “Application Final Action Dates” (the date when visas may finally be issued); and 
  • “Dates for Filing Applications” (the earliest date when an applicant may be able to apply).

Foreign nationals with qualifying priority dates according to the “Dates for Filing Applications” chart will be able to file their applications to adjust to permanent resident status.  While the foreign national will not yet be eligible to receive permanent residence until an immigrant visa becomes available according to the “Application Final Actions Dates” chart, this new ability to actually file the adjustment application will allow qualifying individuals and their dependents to be eligible to apply for employment authorization (EAD card) and travel documents (Advance Parole), while waiting for their “Application Final Actions Date” to become current.  Additionally, certain individuals may be eligible for I-140 Immigrant Visa Petition “portability” once their adjustment of status application has been pending for more than 6 months, which will provide many individuals with greater employment mobility.  

While the adjudication of all I-485 applications to adjust status will still be subject to the same per-country and per-category quotas, and respective visa backlogs (especially for immigrants from India and China waiting under the employment-based categories), this new policy will provide immigrants with benefits while they wait for their immigrant visa “Application Final Actions Date.” 

This Visa Bulletin change acts upon the recent White House report on “Modernizing & Streamlining Our Legal Immigration System for the 21st Century” to provide greater certainty to foreign nationals and their families seeking permanent residency.