A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Saturday, September 23, 2017

U.S. Visa Holders Presumed Lying If They Engage in Disallowed Activities Within 90 Days of Entry

Foreign visitors need to watch out for they do within the first 90 days of their entry, or else, their visas could be cancelled and they might not be able to return to the U.S. again. 

New 90-Day Policy
Under the U.S. immigration laws, a person who has made misrepresentations to an American official is not allowed to enter the country.   Under Section 212(a)(6)(C)(i) if the Immigration Act, a foreigner who uses fraud or willful misrepresentation to apply for a visa, gain admission into the U.S., or to obtain other immigration benefit is inadmissible. Under a new State Department policy, it is easier now for a visa applicant to be found inadmissible based on false statements made during the visa application process. 

Specifically, the policy requires U.S. consular officers to presume that visa holders made material misrepresentations (false statements) in their visa applications, if within 90 days of their entry, their actions or behavior are inconsistent with, or in violation of, the visitors' visa status.  

When Harry Met Sally
For example, Harry applied for a B-2 visitor visa to enter the U.S. to visit his friends. However, one month after his entry, while visiting the Empire State Building in NY, he met Sally and fell madly in love with her. Unable to be separated from Sally, Harry proposed to her. After their marriage, Harry submitted applications to apply for a U.S. green card based his marriage to Sally, a U.S. citizen.  If the applications were filed within three months of his entry to the U.S., then Harry will be presumed to have made false statements when he applied for his B-2 visa.

Other examples of "bad" behavior that violates a foreigner's visa status include: working without authorization; enrolling in an unauthorized course of academic study; and engaging in activities that are not allowed by the visa status.
  
In general, a foreigner's immigration history, including any violations at any time, can be considered by consular and immigration officers when reviewing discretionary applications such as nonimmigrant visa applications and applications for green cards.

The new policy issued by the new State Department Secretary is another example of further tightening of the U.S. immigration policy under the Trump Administration.  Previously, nonimmigrant visa holders' behavior was scrutinized mostly during the first 30 or 60 days of entry. 

"I am innocent!"
Even under the new policy, applicants are allowed to have an opportunity to present evidence to rebut any presumption of fraud.  Take the above case as an example, if Harry can provide convincing evidence to show that he did not know Sally beforehand, their meeting was accidental, and their relationship blossomed explosively during a short time, then chances are good that he can overcome of presumption of fraud. 

The policy is imposed on all State Department employees and overseas consular officers.  USCIS has not yet formally adopted this policy.  However, individual immigration officers anecdotally have focused more on visa holders' activities after their initial admission, when reviewing applications to change or adjust status within the U.S.   Therefore, foreign visitors should be extremely cautious about their actions after arrival.  Since the new policy just came down recently without advance notice, foreigners who think they might have taken questionable actions should proceed even more cautiously to avoid visa cancellation and other negative consequences.  

Honesty is the best policy
On the flip side, foreigners should also be careful when applying for an America visa  It is important to be as accurate and complete as possible in their visa applications. Avoid making false statements or providing untruthful information about their biographic information such as marital status.  Be sure to disclose any family members that are living in the U.S. Review all information carefully before submitting the application. When in doubt, seek help from professional immigration attorneys.

Finally, although the new policy focuses on behavior within the first 90 days, foreign visitors should not assume that it is okay to engage in disallowed activities after 90 days of their entry. 

Visa Bulletin Predictions by Charles Oppenheim - October 2017 and Onward



Every month after the release of the monthly visa bulletin, DOS Visa Office Chief Mr. Charlie Oppenheim would provide his insights on the trends, movements, predictions, etc., regarding the usage of immigrant visa numbers.  The following are his most important insights following the publication of the October 2017 Visa Bulletin:  


EB-1 China and EB-1 India. These categories will become current again in October. USCIS has reported a significant amount of pre-adjudicated demand for these categories which will be eligible for final processing in October. These categories are expected to remain current for the foreseeable future, although a final action date will likely again be imposed at some point later in the fiscal year.

EB-2 Worldwide. As anticipated, this category becomes current again on October 1, and should remain current for the foreseeable future.

EB-2 India. The fiscal year starts with a final action date of September 15, 2008 for EB-2 India and is expected to advance at a pace of up to one month at a time. It is hoped that the final action date will reach early 2009 at some point in the next calendar year. The biggest factor impacting forward movement for EB-2 India will continue to be demand for EB-3 to EB-2 upgrades. Recently, up to half of the monthly target has been used by these upgrades.

EB-3 India. The final action date for EB-3 India remains at October 15, 2006 as we start the fiscal year, and is likely to hold steady in November, with some movement possible in December. The reason this date is holding steady despite the influx of new visa numbers at the start of the fiscal year is that the date has already been advanced knowing that many September cases would likely require updates which may not allow final action to occur prior to September 30. Such cases would then be identified and returned to the Visa Office, so that they could be available for October use, by which time the required information should be received. The numbers that were "reallocated" to October exceeded the desired target, preventing any forward movement of the date.

EB-2 China and EB-3 China. EB-3 China will start the fiscal year with a final action date of January 1, 2014, which is almost eight months ahead of EB-2 China's final action date of May 22, 2013. Even with the advancement of EB-3 China, Charlie is not fully utilizing the monthly target in an effort to avoid a drastic retrogression later this fiscal year as a result of increased demand. This situation is once again ripe for EB-2 to EB-3 downgrades resulting in the demand Charlie is expecting. EB-2 China's modest advancement is attributable to material demand and a desire to maintain steady though limited forward movement through the fiscal year.

EB-3 Worldwide. EB-3 Worldwide's final action date, which became current in August, continues to remain current in October and is expected to remain so for the foreseeable future.

EB-3 Philippines. The final action date for EB-3 Philippines advances one month to December 1, 2015 in October and may advance up to two months at a time as we enter the new fiscal year.

EB-5 China. The final action date for EB-5 China advances one week to June 22, 2014 in October and will continue to advance at a pace of up to one week at a time.

Family-Based Categories. The final action dates for Mexico will advance more quickly if demand does not start to materialize. There is also a low response rate in the Philippines family-based categories which may prompt more rapid advancement in order to generate demand.

Special Immigrants. As predicted, due to lower demand relative to the other countries, EB-4 Mexico has its own final action date of March 1, 2016, as compared to the November 1, 2015 final action date for EB-4 El Salvador, Guatemala and Honduras. Charlie anticipates that EB-4 Mexico will continue to advance with only limited forward movement until demand picks up and approaches the per-country annual limit. EB-4 El Salvador, Guatemala and Honduras could advance at a pace of up to three weeks at a time. Also as predicted, EB-4 India becomes current in October and will remain so until next spring or summer.

Would the new interview requirement result in fewer EB green cards being approved each year?
Charlie does not have a definite answer for this question.  He noted that 85 percent of the visa numbers used in most employment-based categories can be attributed to adjustment of status cases processed by USCIS. The State Department will continue to work closely with USCIS throughout the year to help ensure that the maximum numbers of visas that are available are utilized.

Have Diversity Visa (DV) numbers been exhausted? 
As long as a visa number had been requested by the processing office and allocated to the individual case, the case can proceed, notwithstanding a later determination that the annual limit has been reached. Once we estimate that all of the numbers available for use under the annual limit for a specific visa category will be used, no additional numbers may be provided for subsequent requests for numbers.



(AILA Doc. No. 14071401, 09/21/17)

October 2017 Visa Bulletin: EB-1 Becomes Current Again for India and China

 

The first Visa Bulletin of FY2018 brings new visa numbers and good news.  The cutoff dates for the EB-1 visa categories (extraordinary ability aliens, outstanding professors/researchers & multinational transferees) become current again for all countries, including India, China, Mexico, Philippines and Other Countries. 

Another positive development is the significant advancement of EB-3 China for 2 years to January 1, 2014, which is once again ahead of EB-2 China.  EB-2 applicants born in China may once again downgrade their petitions to EB-3 based on this development.  

Many family visa categories also move forward nicely. For example, Family First advances 7 months for China, India and Other Countries. 

AD: Dates for Final Action (Approval)
FD : Dates for Filing Applications
      Family
Other Coountries
      China
India
Mexico
Philippines
F1
AD
12/22/2010
12/22/2010
12/22/2010
03/01/1996
01/01/2007
FD
01/01/2012
01/01/2012
01/01/2012
11/01/1996
10/01/2007
F2A
AD
10/22/2015
10/22/2015
10/22/2015
10/15/2015
10/22/2015
FD
11/01/2016
11/01/2016
11/01/2016
11/01/2016
11/01/2016
F2B
AD
11/08/2010
11/08/2010
11/08/2010
07/15/1996
01/01/2007
FD
09/01/2011
09/01/2011
09/01/2011
01/01/1997
09/01/2007
F3
AD
07/22/2005
07/22/2005
07/22/2005
04/22/1995
02/22/1995
FD
12/01/2005
12/01/2005
12/01/2005
10/01/1995
06/15/1995
F4
AD
05/08/2004
05/08/2004
10/01/2003
10/01/1997
06/01/1994
FD
11/15/2004
11/15/2004
06/22/2004
02/08/1998
03/01/1995
1st: Unmarried Sons and Daughters of Citizens (about 23,000 per year).
2A: The 2 "A" preference is for Spouses and Children (under 21 & unmarried) of LPR's.
2B: The 2 "B" Preference is for Unmarried Sons and Daughters (21 or older) of LPR's.
3rd: Married Sons and Daughters of Citizens.(about 23,000 per year)
4th: Brothers and Sisters of Adult Citizens.(about 65,000 per year)

Employment
Other Counties
China

El Salvador
Guatemala
Honduras
India
Mexico
Philippines
EB1
AD
C
         C
C
          C
C
C
FD
C
C
C
C
C
C
EB2
AD
 C
05/22/2013
C
  09/15/2008
C
C
FD
C
11/15/2013
C
02/08/2009
C
C
EB3
AD
C
01/01/2014
C
10/15/2006
C
12/01/2015
FD
C
09/01/2015
C
01/01/2008
C
08/01/2016
Other Workers
AD
C
01/01/2006
C
10/15/2006
C
12/01/2015
FD
C
06/01/2008
C
01/01/2008
C
08/01/2016
EB4
AD
C
C
11/01/2015
C
03/01/2016
C
FD
C
C
04/15/2016
C
C
C
EB5
AD
C
06/22/2014
C
C
C
C
FD
C
10/01/2014
C
C
C
C
1st: Priority Workers (Extraordinary ability aliens, multinational companies executives/managers, outstanding prof./researchers)
2nd: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability.
3rd: Skilled Workers, Professionals, and Other Workers (Unskilled.)
4th: "Special Immigrants" (Religious & others)
5th: Employment Creation (Investors)





Current Month’s (October 2017) Adjustment of Status Filing Charts - by USCIS
For Family-Sponsored Filings:
You must use the Dates for Filing chart in the Department of State Visa Bulletin for October 2017.


    For Employment-Based Preference Filings:
    You must use the Final Action Dates chart in the Department of State Visa Bulletin for October 2017.

    Monday, September 18, 2017

    Premium Processing Resumed for FY2018 H-1B CAP Cases!

    Today (9/18/2017), U.S. Citizenship and Immigration Services (USCIS) announced that the agency has resumed premium processing services for all H-1B visa petitions subject to the Fiscal Year (FY) 2018 cap. Both regular CAP and master's degree CAP cases are eligible for premium processing services. 

    The agency suspended the use premium processing services at the beginning of the H-1B filing season. 

    USCIS also plans to resume premium processing for all other remaining H‑1B petitions, "as agency workloads permit." 

    USCIS reminds applicants that the agency will also entertain requests for expedited services on a case-by-case basis in the exercise of its discretionary authority.​

    Tuesday, September 5, 2017

    DACA is officially ended but limited extensions permitted

    The word is finally out.  

    The Attorney General and Department of Homeland Security today announced the official termination of DACA (Deferred Action for Childhood Arrivals) program after much anticipation and opposition. 

    Effective immediately, no new DACA applications will be accepted. Applications that have already been submitted as of September 5, 2017 will continue to be adjudicated on a case-by-case basis.

    DACA beneficiaries with valid Employment Authorization Document (EAD) will be allowed to continue working until expiration.

    DACA beneficiaries whose EAD expires on or before March 5, 2018 will be allowed to apply for two-year extensions but applications must be filed on or before October 5, 2017.  

    DACA beneficiaries with valid approved Advance Parole travel documents may continue to use them.  No new Advance Parole will be accepted or approved.  Pending applications will be closed and application fees refunded.  

    DACA beneficiaries who fall out of status are subject to removal from the United States, although the Trump Administration is not targeting them for removal at the present time.  Individual DACA beneficiaries may be eligible for other forms of immigration relief.  They should consult a qualified immigration attorney as soon as possible. 


    Friday, September 1, 2017

    Speaker Asks President Trump to Re-Consider Killing DACA

    Today, CNN reports that House Speaker Paul Ryan has asked the President to hold off his plan to complete cancel DACA (Deferred Action for Childhood Arrivals program).  Reportedly the President is still "mulling" the idea. 

    Ryan has long been sympathetic to the plight of Dreamers. At a CNN town hall at the beginning of the year, Ryan was asked by a young woman protected under DACA whether he wanted her deported. He said he was working with the Trump administration and seeking a "humane solution."   "What we have to do is find a way to ensure that you can get right with the law," the speaker told the young woman.


    Monday, August 28, 2017

    Breaking News - Adjustment Applicants Based on Employment Must be Interviewed!


    If you are applying for adjustment of status based on an offer of employment or other employment visa categories, you will be required to attend an in-person interview before your green card can be approved, according to an announcement by U.S. Citizenship and Immigration Services (USCIS) today.  The new policy will be effective October 1, 2017.  

    Dependents and family members of asylees and refugees will also be subject to the in-person interview requirement, when they petition to join the  principal  asylees and refugees by submitting the Form I-730, Refugee/Asylee Relative Petition. 

    For many years, employment-based applicants for adjustment of status were not required to attend in-person interviews, and their petitions were approved based on documentary evidence.  Only a handful of applications are selected for interviews for quality control and suspicion of fraud.   

    According to USCIS, this change in policy is based on Executive Order 13780, “Protecting the Nation From Foreign Terrorist Entry Into the United States,” and is part of the agency’s comprehensive strategy to further improve the detection and prevention of fraud and further enhance the integrity of the immigration system. USCIS is also planning to expand the interview requirement to other categories of visa applications such as students. 

    According to USCIS, in-person interviews will provide immigration officers with the opportunity "to verify the information provided in an individual’s application, to discover new information that may be relevant to the adjudication process, and to determine the credibility of the individual seeking permanent residence in the United States."   When a person is interviewed, he or she is first placed under oath before testifying under penalty of perjury.  

    It appears that the new policy will apply to all employment-based I-485 applications and refugee relatives I-730 petitions, without exception.  If so, substantial delay is expected, making the processing times of these cases even longer.  The agency is adding resources and beefing up technologies to accommodate this new requirement. 

    October 1st is just a month away.  Applicants with such pending applications should get ready for these interviews.  Original and certified documents should be obtained as soon as possible.  These documents include birth certificates, marriage certificates, divorce judgments, passports, income tax returns, employment verification letters, etc. 





    Sunday, August 27, 2017

    Side Effects of the New Immigration Policies: Longer Processing Time and Tighter Adjudication Standards

    Under the new administration, the U.S. immigration policy has focused on enforcement and restriction.  Immigration and Customs Enforcement (ICE), the enforcement arm of the Department of Homeland Security, has been making record number of arrests of foreigners in the United States. Customs and Border Patrol (CBP), the agency that is responsible for securing our borders, is also tightening up admission standards at the airports and other ports of entry.

    Tighter Adjudication Standards 
    Even the United States Citizenship and Immigration Services (USCIS), supposedly the nice guys, are also making some significant policy changes in various aspects of the immigration process.  Most noticeably, USCIS is applying much tighter adjudication standards when reviewing nonimmigrant visa petitions such as H-1B and L-1 petitions.  Immigration practitioners are complaining about getting lengthy Requests for Evidence and denials on cases that would have been approved without further inquiries before. 

    Preconceived Immigrant Intent
    Regarding immigrant visa petitions, some offices of USCIS are also bringing up issue of "preconceived immigrant intent" during the adjudication of adjustment applications.  Applicants who came here on temporary visitor visas such as B-1 (for business) or B-2 (for pleasure) are heavily scrutinized.  Questions are asked during the adjustment interview to ascertain whether they had immigrant intent at the time of entry: Did they apply for extensions of status? What were the nature and purposes of their initial visits? Did they work without authorization? 

    Longer Processing Times
    Another side effect of the new policies are slower processing times.  For instance, in the NY/NJ area, the processing time of a family adjustment application used to be about 4 to 6 months.  Since 2016, the processing time has become much longer.  Family adjustment in NJ is now taking about 8 months or longer to process.  The N-400 Naturalization applications are also taking much longer to process. 

    The employment petitions are also taking longer to process.  While the Texas Service Center (TSC) still has reasonable processing times, the Nebraska Service Center (NSC)'s processing time are much slower.  For instance, NSC is taking one year or longer to process an I-140 petition based on the multinational manager category or with a national interest waiver.  Change of status applications (I-539) is taking about 6 months to process at the Vermont Service Center (VSC).  H-1B petitions are also taking longer to adjudicate; premium processing has been suspended for most cases.  Many of the FY2018 CAP H-1B petitions submitted in April are still pending. 

    There has also been reports that the Trump Administration is implementing a policy to interview about 130,000 employment-based visa applicants in connection with their adjustment applications. Green card holders and students may also be included under this new policy when they apply for change or extension of status. 

    Conclusion
    Under the current processing schedule, applicants of immigration benefits are encouraged to submit the applications as soon as possible.  Procrastination is no longer an option. In many situations, failure to submit a timely application means that one would have the depart the country. Time is of the essence is truer than ever. 

    Friday, August 11, 2017

    September 2017 Visa Bulletin: Employment Categories Advance / Family 1st Went Backward



    For September, several employment visa categories advance:  EB-2 China advances 3 weeks; EB-2 India advances 1 month; EB-2 Mexico, Philippines and Other Countries advance 8 months!  EB-3 India moves forward by 3 months; EB-3 Philippines advances 5 months.

    For Family 1st (unmarried sons and daughters of U.S. citizens), China, India and Other Countries retrogress by more than 7 months to May 1, 2010, while Philippines advances 2.5 months.

    This is the last Visa Bulletin of the fiscal year.  In October, a new batch of visa numbers will be available.  It is expected that certain EB-2 categories (Mexico, Philippines and Other Countries) will become current again.


    AD: Dates for Final Action (Approval)
    FD : Dates for Filing Applications
          Family
    Other Coountries
          China
    India
    Mexico
    Philippines
    F1
    AD
    05/01/2010
    05/01/2010
    05/01/2010
    02/01/1996
    01/01/2007
    FD
    07/22/2011
    07/22/2011
    07/22/2011
    04/01/1996
    09/08/2007
    F2A
    AD
    10/01/2015
    10/01/2015
    10/01/2015
    09/22/2015
    10/01/2015
    FD
    04/08/2016
    04/08/2016
    04/08/2016
    04/08/2016
    04/08/2016
    F2B
    AD
    11/01/2010
    11/01/2010
    11/01/2010
    07/01/1996
    01/01/2007
    FD
    09/01/2011
    09/01/2011
    09/01/2011
    08/08/1996
    07/22/2007
    F3
    AD
    07/08/2005
    07/08/2005
    07/08/2005
    04/08/1995
    02/15/1995
    FD
    12/01/2005
    12/01/2005
    12/01/2005
    05/01/1995
    03/01/1995
    F4
    AD
    01/01/2002
    01/01/2002/
    01/01/2002
    09/15/1997
    06/01/1994
    FD
    11/15/2004
    11/15/2004
    06/22/2004
    01/08/1998
    02/08/1995
    1st: Unmarried Sons and Daughters of Citizens (about 23,000 per year).
    2A: The 2 "A" preference is for Spouses and Children (under 21 & unmarried) of LPR's.
    2B: The 2 "B" Preference is for Unmarried Sons and Daughters (21 or older) of LPR's.
    3rd: Married Sons and Daughters of Citizens.(about 23,000 per year)
    4th: Brothers and Sisters of Adult Citizens.(about 65,000 per year)

    Employment
    Other Counties
    China

    El Salvador
    Guatemala
    Honduras
    India
    Mexico
    Philippines
    EB1
    AD
    C
    01/01/2012
    C
      01/01/2012
    C
    C
    FD
    C
    C
    N/A
    C
    C
    C
    EB2
    AD
    01/01/2016
    05/15/2013
    01/01/2016
      08/22/2008
    01/01/2016
    01/01/2016
    FD
    C
    10/01/2013
    N/A
    02/01/2009
    C
    C
    EB3
    AD
    C
    01/01/2012
    C
    10/15/2006
    C
    11/01/2015
    FD
    C
    09/01/2015
    N/A
    01/01/2007
    C
    01/01/2016
    Other Workers
    AD
    C
    01/01/2004
    C
    10/15/2006
    C
    11/01/2015
    FD
    C
    06/01/2008
    N/A
    01/01/2007
    C
    01/01/2016
    EB4
    AD
    C
    C
    10/22/2015
    10/22/2015
    10/22/2015
    C
    FD
    C
    C
    N/A
    C
    C
    C
    EB5
    AD
    C
    06/15/2014
    C
    C
    C
    C
    FD
    C
    09/01/2014
    N/A
    C
    C
    C
    1st: Priority Workers (Extraordinary ability aliens, multinational companies executives/managers,outstanding prof./researchers)
    2nd: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability.
    3rd: Skilled Workers, Professionals, and Other Workers (Unskilled.)
    4th: "Special Immigrants" (Religious & others)
    5th: Employment Creation (Investors)