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, May 19, 2018

OPT Terminated If Student Changes School or Starts New Study Program

USCIS issued a reminder to F-1 foreign students that their OPT may end under two conditions. First, if they transfer to another school to study, their OPT will terminate.  Second, if they begin a study program at another educational level, then their OPT will also terminate.  The general rule is that a foreign student may only obtain one OPT employment for each educational level. For example, when a student completed her bachelor's degree, she is entitled to 12 months of OPT employment.  She must complete a new academic program (e.g., a master's degree) before she may apply for OPT employment again.   However, this policy should not stop foreign students from pursuing a higher degree if it makes sense to do so otherwise.

Thursday, May 10, 2018

Guidelines for DNA Evidence of Siblings to Prove Relations

When U.S. citizens or lawful permanent residents petition for a family member, the proper relationship must be proven to USCIS. Absent primary evidence such as birth and marriage certificates, the parties may submit secondary evidence like affidavits, school records, and medical records. DNA testing can also supplement evidence, usually through establishing parent-child relationships. If someone petitions for their sibling, their familial relationship must be proven to USCIS.

A sibling relationship is defined in INA §§ 101(b)(1) and (2) as two people who are “children of at least one common parent”. Full siblings share both parents while half siblings share one parent. When it is not possible to test common parents, sibling DNA tests can be used. A newly released USCIS policy memo allows for use of DNA testing for sibling relationships and explains the guidelines.

Results are interpreted through percentage probability of a true relation. The accepted standard is 90 percent probability of familial relationship for both full and half siblings. Both half and full sibling tests are inconclusive when between 9 and 89 percent probability. Below 9 percent means the full-sibling relationship does not exist. For a half sibling test, below 9 percent is inconclusive. 

Test Result - percent probability of true relationship
Full Sibling Relationship
Half Sibling Relationship
90% and higher
Relationship Exists
Relationship Exists
9% – 89%
Inconclusive
Inconclusive
Below 9%
Relationship Does Not Exist
Inconclusive

Source: DNA Evidence of Sibling Relationships. Policy Memorandum. USCIS. April 17, 2018.


Inconclusive and exclusionary results do not mean the petition will be denied. It means that the relationship hasn’t been established but can still be accepted if sufficiently supported with other forms of evidence. If other submitted evidence is sufficient, the relationship can be accepted as true by USCIS anyway.

The type of test used can affect results and how they are judged. The above standards are based on testing 20 loci (genetic markers). Officers must tell petitioners that they can test more loci if the result was below 90 percent probability but tested less than 20 loci. AABB labs also updated their standards to test at least 20 loci when previous results were below 90 percent probability.

Testing against other relatives is also used to provide evidence of sibling relationships. The tested people do not have to be named on the petition. This provides more information to work with and is encouraged by AABB standards.

While DNA tests are powerful evidence, the results are not sole determinants in an application. Half and full sibling tests are suggested by USCIS as an alternative to unavailable primary evidence. Adjudicators look at the petition and all supporting documents as a whole. It is important that the petitioner prepare each part of the application carefully.

Tuesday, May 8, 2018

Offsite STEM OPT Employment Severely Limited by New Restrictions

Consulting and staffing firms using STEM OPT workers are now faced with heavy restrictions. USCIS has inconspicuously updated the its STEM OPT web page with rules that make it much harder to legally employ STEM OPT workers offsite.

STEM OPT refers to the optional practical training (OPT) 24-month extension that STEM subject F-1 students can take. This is available to them after completion of their initial 12-month OPT. Employers that hire these students must follow certain rules themselves. They must enter the company information to the E-Verify database, allowing USCIS to keep track of employee immigration status. They also have to create and show an individualized training plan (form I-983) for the student, reporting any material changes to their designated school official (DSO).

Some companies, most notably IT consulting firms, hire these workers and assign them to work at offsite client locations. The recent changes strongly discourage this. They include:
  1. Training must be done in person, not through phone calls or e-mails.
  2. The mentor cannot be a third-party person (client of employer, employees or contractor of client)
  3. The mentor must be a senior employee (not another STEM OPT employee) in the same training location denoted in the I-983 plan.
  4. Training must take place where Immigration and Customs Enforcement (ICE) can access for site visits. This usually does not include third-party client work sites and places of business.   
  5. Training does not count if the trainee is assigned at work at an offsite location and visits the employer's site for training.
This makes it very difficult for companies that dispatch their employees to client locations to employ STEM OPT workers. Consulting and staffing companies are especially affected. STEM students should be careful when they apply for positions that would require them to work off-site at client locations. Prior consultation with an experienced employment immigration attorney is strongly recommended.

For example, when an employer located in New York assigns an employee to work at a client site in California, it would be impracticable for the employee to return to New York for training.  Similarly, ICE's authority to conduct onsite visits originates from the terms of the STEM OPT employment program. Third-party client businesses are not covered by the terms of the program.  Further, unless an employer happens to have more senior employee working at the same client job site as the STEM OPT employee, it would be very difficult if not impossible to comply with the supervision requirement under the I-983 training plan. 

Friday, May 4, 2018

Extra Steps for Picking Up New Green Card and EAD

In order to more securely send sensitive documents out, USCIS will be switching to a new delivery system on April 30th. The system is called the Signature Confirmation Restricted Delivery service through the United States Postal Service (USPS). These documents include original documents such as Permanent Resident Cards (Green Cards) and Employment Authorization Cards (EAD). The transition will first be applied to documents that have been sent back to USCIS. The changes should be completed by late 2019. 


The most notable changes are in having to present proper I.D. to sign for the mail. The applicant must show their I.D. to receive their delivered document. A designated person can also sign and receive the delivery for the applicant through the PS Form 3801. The applicant or the representing attorney would have to go to the office to fill out the form beforehand. If the delivery address is the attorney’s office, only the attorney can show I.D. and sign for the document.  However, the attorney may designate another person to pick up the document at the post office.

Missed deliveries will result in the document being held in the post office for 15 days before being sent back to USCIS. The applicant can go to the USPS website and set a date and time to pick their document up from the post office. USPS also offers a tracking service applicants can sign up for to get notifications. 

Adding these conditions to document pick-up does provide more security. However, it also complicates matters for the applicant. Some do not have proper I.D. such as a driver license. In fact, they are trying to apply for I.D. documents such as an EAD from the Department of Homeland Security.  Hence, the new policy indirectly created a chicken-and-egg-problem which could make it hard for some applicants to receive their document.

Also, many applicants are new immigrants that tend to move around a lot for employment opportunities and other reasons.  When they move, they need to properly change their address with the USCIS and also the USPS.  If the change of address has not been processed timely and correctly, it is very possible that these applicants may miss these important original documents from USCIS. 

Because of this new policy, it is now more important than ever for immigrants to properly report their change of address with Department of Homeland Security and the U.S. Postal Service.  In fact, by law, if any non-citizen knowingly failed to change his or her address by filing the AR-11 form, the person could be found deportable from the United States. The intent of this law was to catch the ill-intentioned foreigners such as terrorists.  But it applies to all non-citizens present in the U.S.  However, a lot of new immigrants do not know about this requirement at all.

Understandably, there are worries that this process will be more complicated than it is secure. Applicants for these important immigration documents should pay close attention to the requirements and follow the advice of their attorneys. 

Monday, April 30, 2018

Multinational Manager Green Card "1-in-3" Rule Tightened

Multinational managers seeking a green card under the EB-1C classification will fail if there is a gap in employment in excess of two years with the petitioning company after entering the U.S., according to a recent Policy Memo issued by USCIS dated March 19, 2018.

What is the EB-1C immigrant visa status? It can be used by a multinational company seeking to bring a high-ranking executive or managerial employee to work permanently in the United States. The employee would normally be transferred from their position in a foreign affiliate to the U.S., although he or she could already been working for the U.S. company in an nonimmigrant visa status. Approval of the EB-1C visa status would make the employee eligible for a U.S. green card. But don't confuse EB-1C with the related non-immigrant L-1A employment visa status, which is temporary in nature.

Aside from proving the employee's eligibility as an executive or managerial worker, there are further requirements to attain the EB-1C visa status. The "one-in-three" rule imposes strict guidelines on the beneficiary's employment time frame. The rule requires that the beneficiary must have worked at least a year for the petitioning company's foreign affiliate within the last three years prior to admission to the United States.  USCIS has interpreted this rule to mean that the three-year reference period is the three years immediately prior to the date of admission of the worker.  Hence, the employee could already be working for the U.S. company for three years and still be eligible for an EB-1C visa. 

A recent USCIS AAO decision, Matter of S-P-, Inc.(adopted as policy memo) further clarifies that any periods of employment under a different company or even unemployment after the date of admission could break the "1-in-3" rule for EB-1C petitions.  Specifically, this means that once the transferee worker arrives the U.S., if he or she stops working for the affiliated U.S. petitioning company for longer than two years, the worker will no longer be eligible for EB-1C status.

It is important to note that the old rule still applies. In other words, if there is no discontinuity between working for the foreign affiliate and the petitioning company, there is no need to worry about the one-in-three rule when applying for EB-1C. Also, the date of entry looked at has to be for the purpose of working for the multinational company. Other date of entries do not qualify. Claiming an older date of entry as the starting point for counting one-in-three years of employment does not work. This is regardless of whether or not the beneficiary worked the year before the date of entry -- once there is an interruption of employment, only the time frame of the most recent three years is looked at.

This may seem complicated at first, but it makes sense when looking at the purpose of EB-1C status. It is meant to help U.S. companies bring in key employees from their foreign affiliates to support the business. Having large gaps between working for the two associated companies detracts from the employee's credibility as a long-term and high-level executive or manager. 

Those seeking the similar L-1A nonimmigrant visa could also face the same restrictions. Although not specifically mentioned, USCIS will likely apply the same rationale when dealing with employment interruptions in adjudicating the L-1A applications. This ruling reminds multinational companies to plan on a longer time scale when it comes to moving their key employees to the U.S. 

Saturday, April 28, 2018

TPS for Nepalese will end on June 24, 2019

Temporary Protected Status (TPS) designation for Nepal will be terminated on June 24, 2019, as announced by DHS recently.  The agency has determined that Nepal's country conditions have improved since the 2015 earthquake and TPS is no longer warranted. It means that thousands of Nepalese must leave the country by June 24, 2019, unless they have other legal status to stay in America.

Saturday, April 21, 2018

More Long-Term Residents Targeted for Deportation

There are a few ways one becomes an "illegal immigrant" in the United States. The most common are either entering illegally, staying past an authorized period of time, or losing immigrant status because of illegal actions. A major consideration in dealing with illegal immigration is where the government decides to focus its resources.

The Obama administration chose to tackle the current immigration case backlog by stemming the inward flow of foreign nationals. Immigration politics have noticeably shifted to stricter and less forgiving enforcement under the Trump administration, whose strategy seems to be expediting the deportation process.


Recent data released by third-party research center TRAC shows the disparity between how the Trump and Obama administrations handle immigration cases. Immigration court cases during the Obama presidency were 72% to do with newly arrived foreign nationals and only 6% to do with those that had been in the United States for at least 2 years. Recent numbers show a reversed trend, with only 10% of cases being for new arrivals while 43% involved longer term residents. 


While the Obama administration's "last-in-first-out" strategy was aimed at reducing the number of illegal entrants, the Trump administration decided to focus on those who had already entered and begun to assimilate into the country. The change is apparent in TRAC's report: the average length of stay in the country before immigration court cases was 12 years in 2006. The number hovered between 2 and 4 years from 2017-2018.

This administration has also been pushing for deportation through the authority of the Attorney General. Immigration court falls under the jurisdiction of the Department of Justice, thereby giving the Attorney General authority over the Executive Office for Immigration Review (EOIR) and the immigration court system. Immigration judges are allowed to grant continuation, delaying a case and allowing the foreign national in question a longer stay. But a recent memorandum by the Chief Immigration Judge discouraged continuances, blaming them for the over 600,000 immigration case backlog. New case quotas also encourage judges to choose deportation over continuation, regardless of the alternate possibility of a new visa. The objective is to quicken the deportation process.

The immigration judges, already carrying an extraordinary caseload, find this shift in policy unacceptable. For example, 18 retired immigration judges issued a statement to Congress arguing that immigration judges should be evaluated based on the quality of their decisions, not the quantity, as hasty decisions are prone to errors.  Ultimately, they advocate for an independent immigration court to be free from political influences. 

Tuesday, April 17, 2018

New Portal for Foreign Students to Update SEVIS

Many students come to America seeking quality education and employment opportunities. To keep track of all this movement, the Student and Exchange Visitor Information System (SEVIS) maintains an immense amount of data. A newly implemented portal system alleviates some of this administrative strain.

The Student and Exchange Visitor Program (SEVP) portal allows for a more direct approach for optional practical training (OPT) students to manage their personal information. OPT refers to the post-study status an F-1 student can hold to allow them to work for one year for the purpose of gaining experience (STEM OPT status holders get two years).

Basically, with the SEVP portal, they can modify their phone number, address, mailing address, and employer information on file directly instead of through their school officials. The information is more accurate and quickly updated. Also, this eliminates mix-ups regarding the rule on reporting address changes within 10 days in order to maintain nonimmigrant status.

All students need to gain access to the portal is a valid e-mail address with SEVIS and their SEVIS identification number, found on the top of their I-20 forms.

It is very important for foreign students to report any changes in their address and personal information.  

Pilot Program for Canadian L-1 Multinational Executives and Managers

Applying for nonimmigrant statuses can be a lengthy process with long wait times coming one after another. A recent program exclusive to Canadians seeking L-1 status seeks to mitigate this. A temporary joint program exclusively for Canadian citizens applying for L-1 status under NAFTA will span from April 30, 2018 to October 31, 2018. USCIS California and Customs and Border Protection in Blaine, Washington are coordinating L-1 nonimmigrant status processing and admission to the United States to allow Canadians to enter the country under L-1 status.

What is "L-1 status"? It is a visa category for foreign executives and high-level managers of multinational companies. It allows the company to bring an executive or manager to an office in the States. The employee can stay an initial three years, with two-year extensions capping at seven total years.  The pilot program aims to encourage U.S. employees to move their executive employees in by expediting the total process.

Participation in this program allows an employer to file I-129 (L-1) forms ahead of time. When the employee goes to the port of entry (POE) for admission, they can have the application adjudicated and enter under L-1 status following approval. 

Outside of the program, adjudication can also happen at Class A POEs or pre-clearance airports (PC). Bringing an unprocessed I-129 (L-1) form to Blaine POE would then commence the adjudication process, with results coming out at a later date (at Class A POEs or PC). Stations nearest to Blaine are Class A POEs Point Roberts, Washington, and Sumas, Washington, and the Vancouver, Washington, PC. Applicants should remember that bringing an I-129 application still under processing to a POE could cause delays.

Sunday, April 15, 2018

May 2018 Visa Bulletin



May's Visa Bulletin has no notable movements.   EB-2 China continues to be significantly ahead of EB-3 China, allowing many Chinese applicants to continue"downgrading" their applicants to EB-3 and filing their I-485 applicants a lot sooner.

  • EB-1 continues to retrogress (not current) for EB-1 China and India
  • EB-2 China advances one month
  • EB-3 India advances 3 months

Filing Dates:  (May not apply to U.S. filings)

  • EB-2 India advances 7 weeks
  • EB-3 India advances 5 months

AD: Dates for Final Action (Approval)  FD : Dates for Filing Applications
      Family
Other Countries
      China
India
Mexico
Philippines
F1
AD
04/08/2011
04/08/2011
04/08/2011
11/15/1996
01/22/2006
FD
01/08/2012
01/08/2012
01/08/2012
07/15/1998
10/08/2007
F2A
AD
06/01/2016
06/01/2016
06/01/2016
04/22/2016
06/01/2016
FD
09/22/2017
09/22/2017
09/22/2017
09/22/2017
09/22/2017
F2B
AD
05/15/2011
05/15/2011
05/15/2011
12/01/1996
12/15/2006
FD
09/08/2011
09/08/2011
09/08/2011
05/22/1997
09/08/2007
F3
AD
02/01/2006
02/01/2006
02/01/2006
09/01/1995
04/01/1995
FD
09/08/2006
09/08/2006
09/08/2006
09/22/1998
07/22/1995
F4
AD
10/01/2004
10/01/2004
03/01/2004
01/08/1998
02/01/1995
FD
04/01/2005
04/01/2005
12/01/2004
05/08/1998
10/15/1995
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
C
C
C
C
EB2
AD
 C
09/01/2014
C
  12/22/2008
C
C
FD
C
02/01/2015
C
04/01/2009
C
C
EB3
AD
C
06/01/2015
C
05/01/2008
C
01/01/2017
FD
C
01/01/2016
C
09/01/2008
C
07/01/2017
Other Workers
AD
C
05/01/2007
C
05/01/2008
C
01/01/2017
FD
C
06/01/2008
C
09/01/2008
C
07/01/2017
EB4
AD
C
C
12/15/2015
C
10/22/2016
C
FD
C
C
04/15/2016
C
C
C
EB5
AD
C
07/22/2014
C
C
C
C
FD
C
09/01/2014
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)