1. Skip to navigation
  2. Skip to content
  3. Skip to sidebar

Cannabis in the United States and its implications in naturalization applications

In response to requests from state and local officials for clarification and adjustment of United States Citizenship and Immigration Services policies negatively impacting the legal immigration status of individuals who work or have worked in the legal cannabis industry, USCIS has updated its Policy Manual—but has not retreated from its position that cannabis-related activities will likely bar a lawful permanent resident of the US from naturalization, even if such activities take place in a state that has legalized cannabis. For a deep dive into the updated manual—including cannabis-related activities which, while not grounds for deportation may still be grounds for inadmissibility if the LPR travels abroad and attempts to re-enter the US—please click here.

, , ,

Cannabis in the United States and its implications in naturalization applications

Verifying work authorization under USCIS’ OPT cap-gap rule

There are special rules that act to automatically extend the US employment eligibility of qualified F-1 foreign student visa holders beyond the period initially authorized. The rule that relates to F-1 visa holders seeking to change to H-1B work visa status is referred to as “cap-gap” because it is intended to fill the gap between the date the OPT (optional practical training) period would otherwise expire and the date that the new H-1B employment authorization starts.

The H-1B allows employers to temporarily employ a foreign national in a specialty occupation. The US Citizenship and Immigration Services (USCIS) grants H-1B status. There is a limit, or “cap,” on the number of individuals who can receive H-1B status, and H-1B employment generally begins on October 1, the start of the federal government’s fiscal year. 

OPT is an employment authorization for F-1 international students who have completed their studies. Typically, the OPT is granted for 12 months. STEM majors working for eligible employers may qualify for extensions totaling an additional 24 months. At the completion of the study program or the end of OPT, F-1 students have a 60-day grace period to take the steps necessary to either maintain their legal status or depart the US. For the non-STEM majors, that means their OPT status expires well before the October 1 start date of H-1B, hence the “cap-gap.”

To deal with this situation, USCIS’ OPT cap-gap rule automatically extends an eligible F-1 student’s status to bridge the gap between the end of F-1 status and start of H-1B status, thereby allowing the student to remain in the US during the “gap.”

The cap-gap extension applies if all three of the following conditions are met:

  • An employer timely files a Form I-129, Petition for Nonimmigrant Worker, with USCIS requesting a change of the student’s status to H-1B. Note: A petition requesting consular process does not qualify.
  • The H-1B petition asks for an October 1 start date.
  • The student’s status, including any applicable grace period, ends between April and September 30. 

How the OPT cap-gap protection is triggered by different events during the H-1B process

  • When an H-1B petition on behalf of the student has been filed with USCIS but not yet receipted, the student’s employment authorization automatically extends to June 1. While the extension is automatic, students can request from their school’s office of international students office an updated Form I-20 to serve as proof of legal status.
  • While the H-1B is pending with USCIS for processing, the student’s employment authorization automatically extends to September 30. Again, the student may, but is not required to, obtain an updated Form I-20 from the international students’ office. 

If USCIS denies the H-1B, or if the H-1B petition is returned as “not selected,” then there is no longer any cap-gap employment authorization. If the F-1 student’s OPT already expired, then the student has 60 days to depart the US or take other steps to maintain lawful status.

Employers are advised to request updated Form I-20s from their employees on OPT status as proof of valid work authorization, and to take note of the expiration dates.   

Note that if the student’s OPT expires before April 1 and the student is already in the 60-day grace period when the H-1B is filed, the cap-gap only extends the F-1 status, not OPT employment authorization. The student may remain in the US, but without OPT work authorization. 

Employers must verify the employment authorization for all employees in the US. Failure to do so may result in monetary penalties against the employer. Please contact Dentons for more information. 

, , , ,

Verifying work authorization under USCIS’ OPT cap-gap rule

DHS publishes final rule governing FY 2020 H-1B cap season. Now it’s time to prepare your cap-subject petitions

Last week, the Department of Homeland Security (DHS) published the final rule amending regulations governing H-1B cap-subject petitions. For a detailed discussion of the proposed rule, see our recent blog post here. The final rule, however, makes some changes different from those set out in the proposed rule.

No online registration for FY 2020 H-1B cap season

Though suggested in the proposed rule, the final rule clearly states that an online registration requirement will not be implemented for the FY 2020 cap season. The agency explains that before implementation, it wants to complete user testing and other evaluative tools to ensure the system and process are fully functional. Employers should be ready in 2020 for the FY 2021 H-1B cap season, when the process change will likely take place. US Citizenship and Immigration Services (USCIS) will announce the implementation in advance of the cap season in which it will implement the requirement.

Changing the order of the H-1B lottery selection for the FY 2020 H-1B cap season

Currently, H-1B cap-subject petitions filed under the advanced degree cap are selected first, and unselected petitions get a second bite at the apple—an opportunity to compete, along with the regular cap petitions, for one of the 65,000 visas available for workers holding bachelor’s degrees. The final rule reverses this order. Effective April 1, 2019, USCIS will first select 65,000 petitions from all submissions, including both regular and advanced degree petitions. USCIS will then run a second lottery to select enough qualifying petitions to meet the 20,000 cap exemption for individuals with advanced degrees from US institutions. DHS states that the change will increase the chances of H-1Bs being awarded to individuals with US master’s degrees or higher by up to 16%, or 5,340 workers. Time will tell. Why DHS thinks random holders of US master’s degrees will better serve American competitiveness than will holders of bachelors’ degrees in targeted fields of study, such as STEM, or who otherwise meet the goals articulated in President Trump’s April 2017 executive order directing an interdepartmental review of the H-1B visa program, was not addressed in the final rule.

Dentons analysis

Employers need to submit full H-1B cap-subject petitions during the first week of April. Please contact your lawyer now to be fully prepared.   

Meanwhile, Dentons will continue to closely monitor any changes to the regulations surrounding the H-1B program, particular regarding the pre-registration requirement, and update you as needed.

, , , , ,

DHS publishes final rule governing FY 2020 H-1B cap season. Now it’s time to prepare your cap-subject petitions

Does USCIS interpret its regulations consistently and correctly?

Non-immigration case before SCOTUS could change immigration law

In December of last year, the US Supreme Court agreed to review Kisor v. Wilkie, a case that could have a major impact on immigration law. At issue is the degree of deference a court must accord an agency’s interpretation of its own ambiguous regulation.

How much deference courts should afford agencies in interpreting their own regulations is a central question in administrative law. It determines how much an agency is allowed to stray from the original wording of a regulation it promulgates before it becomes necessary to issue a new regulation.  

It is dangerous to grant agencies unfettered discretion based on the assumption that their personnel will wisely and fairly carry out their duties. Changing presidential administrations often result in new agency directors and the likelihood that political beliefs will change how existing regulations are interpreted.  

If an agency seeking to revise a regulation follows the legal requirements of the Administrative Procedure Act (APA), there will be notice of proposed rulemaking and a comment period to identify any issues. There’s also a published regulatory history from which to glean meaning and intent. Too often, however, federal agencies, rather than comply with the APA, seek to regulate through policy interpretation memoranda.

On its face, Kisor v. Wilkie has nothing to do with immigration law. In 2006, James Kisor a Vietnam War veteran reopened a claim for disability benefits, citing new evidence that supported a diagnosis of PTSD. While the Department of Veterans Affairs (VA) agreed with the diagnosis and approved the 2006 claim, it declined to grant him retroactive benefits based on his initial 1983 claim, asserting that he had failed to present “relevant” service records required under VA regulations governing reconsideration of benefits claims. The Court of Appeals for the Federal Circuit deferred to the VA’s interpretation of its own regulation and found in the agency’s favor.

In the context of immigration, the US Citizenship and Immigration Services (USCIS), a branch of the Department of Homeland Security (DHS), is the federal agency that oversees lawful immigration to the United States. Under current case law, significant deference is granted to USCIS’ interpretation of its own regulations. This deference has allowed the agency to change certain visa programs over time, often without issuing new regulations but instead relying on policy memoranda to implement what increasingly seems to be an agenda driven by White House politics rather than good policy.

For example, President Donald Trump’s “Buy American, Hire American” 2017 executive order, which, among other things, directed DHS, in coordination with other agencies, to review immigration-related policies, led to USCIS modifying many of its immigration policies in 2017 and in 2018, oftentimes by the mere publication of a memo or a press release rather than by going through the APA’s required process. Dentons’ immigration team covered several of these:

  • In October 2017, USCIS issued a policy memorandum reversing the burden of proof and eliminating the prior practice of deferring to previous approvals in the adjudication of petitions to renew H, L and other non-immigrant visas. The idea was that USCIS would accept the original determination as correct and would not review all the visa requirements again. With the elimination of this practice, visa holders merely petitioning for an extension now have to prove every criteria applicable to their visa category, even though USCIS already decided that they met such criteria. Effectively, extensions now require the same level of documentation as the original petition. This change has led to extensions being denied, thus creating confusion among alien workers.
  • In April 2018, USCIS updated its webpage for Optional Practical Training Extension for STEM Students (STEM OPT), providing that the training experience of STEM OPT workers may not be conducted at the place of business or worksite of the employer’s clients or customers.
  • In May 2018, the USCIS changed the way it calculates the accrual of unlawful presence for nonimmigrant students and exchange visitors (F, J and M visas, including F-2, J-2 and M-2 dependents). The changes increased the likelihood that individuals in these nonimmigrant visa categories would have problems with future immigration benefits. (See our previous posting “Stricter unlawful presence rules for foreign students and exchange visitors”).
  • In May 2018, USCIS revised its Policy Manual, announcing it would no longer count the jobs created for US workers through tenant occupancy of EB5 properties, which effectively reduced the amount of immigrant investor funds available to create jobs for US workers. (See our previous posting “No more EB5 job creation through tenant-occupancy models: New USCIS policy reduces availability of immigrant investor funds to create jobs for American”).
  • In November 2018, USCIS published a new policy memorandum explaining how to calculate the 12 months of employment abroad, a key requirement under the L-1 intracompany transfer visa program. (See our previous posting “How to count to 12: USCIS clarifies L1A visa requirements”).
  • In November 2018, DHS published its mid-year regulatory agenda, which included a proposed rule to revoke the H-4 employment authorization final rule. If adopted, the proposed rule is expected to become effective in the first half of 2019 and would impact all of the more than 100,000 individuals currently holding an H-4 employment authorization document. (See our previous posting “Proposed end of H-4 employment authorization likely to affect over 100,000 families”).

While USCIS’ frequent and often far-reaching policy changes created lots of business for lawyers in 2018, the agency’s unpredictability and inconsistent application of the law has created a tremendous burden on US employers and their foreign-national employees and families, as well as for US business developers seeking foreign investment and foreign investors and families.  

Critics of the deference principle have argued that it effectively allows agencies such as the USCIS to write overbroad and substantively vague rules with the expectation that they can fill in any gaps later using interpretive rules, unchecked by notice and comments. They are urging the Supreme Court to reverse the current precedent favoring judicial deference, which would force USCIS to issue clearer and more detailed regulations, thus providing  more agency transparency and accountability. The Supreme Court will hear Kisor v. Wilkie in the spring—oral arguments have not yet been scheduled—and will likely make a ruling later this year.

, , , , ,

Does USCIS interpret its regulations consistently and correctly?

Proposed end of H-4 employment authorization likely to affect over 100,000 families

Time appears to be almost up for more than 100,000 foreign citizens working in the United States under an Obama-era special authorization for spouses of foreign workers here on the H-1B visa.

When Congress failed legislatively to address the lengthy wait times for many professionals and their families to be granted resident status, the US Citizenship and Immigration Services (USCIS) in 2015, under the Obama administration, issued a regulation to allow H-4 visa spouses of qualified H-1B professionals to apply for an employment authorization document (EAD). Some members of Congress complained that the executive branch was overstepping its authority by making law—which is Congress’s job—and the regulation was the subject of much debate during the last presidential election. Now the Trump administration is seeking to make good on the President’s campaign promise to eliminate EADs for H-4 spouses.

This change especially impacts US employers of people born in India.

The reason why Indian-born professionals are impacted is because there are numerical limits on the number of green cards granted each year. To promote the diversity of new immigrants to the US, there are quota limits on the place of birth. No more than 7 percent of the total number of family-sponsored and employment-based visas available in a fiscal year may be issued to natives of any one independent country. As the demand for Indian-born professionals is far greater than the annual supply of green cards under the quota, this has created a backlog.

In 2018 for instance, the backlog of Indian-born professionals waiting their turn to get a green card was well in excess of a half million individuals. As a result, it now takes many years for an Indian-born professional to receive his or her green card. As a consequence, Indian-born professionals comprise the bulk of H-4 EAD holders.

Under the current regulation, an H-4 spouse can request an EAD if the H-1B professional is the beneficiary of either an approved employment-based immigrant visa petition, or a Department of Labor alien employment certification application or employment-based immigrant visa petition filed at least 365 days prior to the end of the sixth year of the professional’s H-1B status.

In April 2017, President Trump signed the “Buy American and Hire American” executive order, which, among other things, directed the Department of Homeland Security (DHS), in coordination with other agencies, to review H-1B-related policies. The H-4 EAD regulation was one of the policies reviewed and the result was its proposed elimination.

US employers rely on H-1B professionals to make up for the shortage of qualified American professionals while keeping jobs in the US. CEOs of major US companies, sent a letter to DHS opposing the plan to eliminate the H-4 EAD. The letter pointed out that “[t]hese spouses are often highly skilled in their own rights,” and “revoking their US work authorization will likely cause high-skilled immigrants to take their skills to competitors outside the United States.

These US employers found some support in Congress. Senators Kamala D. Harris and Kirsten Gillibrand sent a letter to DHS and USCIS opposing rescission of the H-4 EAD, pointing out that the proposed change would disproportionately impact South Asian women (in 2017, 94 percent of H-4 EAD were women and 93 percent were from India).

But the administration has not changed its position. In November 2018, DHS published its mid-year regulatory agenda, which included a proposed rule to revoke the H-4 employment authorization final rule. DHS stated that “[s]ome U.S. workers would benefit from this proposed rule by having a better chance at obtaining jobs that some of the population of the H-4 workers currently hold, as the proposed rule would no longer allow H-4 workers to enter the labor market early.” With record low unemployment levels and US employers already complaining of recruiting problems, it is unclear where the DHS thinks employers will find these US workers.

The new rule, if adopted, is expected to become effective in the first half of 2019 and would impact all 100,000+ individuals currently holding an H-4 EAD. Researchers also estimate that the proposed rule will affect entire families, including the H-1B professionals themselves, because many will not be able to afford to live on one income if their dependent spouse is forced to abandon his or her career. This is especially true in areas such as Seattle and the Silicon Valley, which employ high numbers of H-1B workers and have a high cost of living. Entire families may leave the US, taking their job skills to other countries to compete with their former employers—whose only options to remain competitive may be to outsource the jobs or set up their own offshore facilities. Nearshoring to Canada has become increasingly popular, due to the relatively lower cost of doing business there and proximity to the US.

The direct cost of each failed expatriate assignment is estimated to range from $250,000 to $1 million, according to researchers. More important, the departure of these highly skilled workers represents a brain drain and a significant loss of talent for most companies.

Dentons helps employers develop strategies to recruit the world’s best and brightest to fill posts in the US and abroad. For more information, please contact the authors or your Dentons lawyer.

, , , , , , , , , ,

Proposed end of H-4 employment authorization likely to affect over 100,000 families

DHS new rule on H-1B lottery process: Who’s the winner?

 

Following President Trump’s “Buy American and Hire American” executive order issued back on April 18, 2017, a long-awaited new rule has been proposed by the Department of Homeland Security (DHS) that would change the existing H-1B selection process, although perhaps not before the April 2019 filing season.

Online registration

The proposed rule would require petitioners seeking to file cap-subject H-1B petitions to first electronically register with US Citizenship and Immigration Services (USCIS) during a designated registration period, which would begin at least two weeks before April 1. The registration would require information about the employer, as well as the individual H-1B beneficiary.

USCIS would then select at random from the online registration database until the limited supply available under the quota (65,000 regular cap and 20,000 US advanced degree holders) is exhausted.

The big change is that US employers would only file complete H-1B petitions for the named beneficiaries who have been selected. Government processing fees would only be paid for selected petitions.

Similar to current processing, DHS would prohibit more than one registration from the same petitioner for the same beneficiary during any given year. Further, the new rule would require petitioners to attest to their intent to file an H-1B petition for the named beneficiary in the position for which the registration is filed.

DHS believes that this will prevent US employers from submitting a large numbers of registrations but not following up with complete filings of H-1B petitions for the selected beneficiaries—something that was not possible under the existing system. The proposed rule states that USCIS would closely monitor whether selected registrations are resulting in the filing of complete H-1B petitions. If USCIS finds that petitioners are registering numerous beneficiaries but are not filing petitions “at a rate indicative of a pattern and practice of abuse of the registration system,” it would investigate and could hold the employers accountable.

Selection process

The proposed rule would reverse the order by which the H-1B cap petitions are selected. Currently, USCIS first selects 20,000 with US graduate degrees, and then allow the unselected to be considered a second time, with the rest of the world, for the 65,000 quota. The proposed rule reverses this order. The proposed rule claims that it would increase the likelihood that a US graduate degree holder would be selected by up to 16 percent, but no explanation for that calculation is provided in the rule.

Petitioners whose petitions are selected will be notified to file complete H-1B petitions for the named beneficiaries within a designated filing period, expected to be at least 60 days.

Dentons analysis

The new rule reduces USCIS’ workload, since it does not have to handle the return of unselected petitions. However, this is not likely to speed up the slow processing of H-1B petitions, since the agency generally relies on contractors to handle mailroom services, rather than the officers who adjudicate petitions.

While the new rule may reduce some paperwork for US employers, it will not likely reduce the costs, since the cost of evaluating potential H-1Bs and registering is still incurred prior to the employer signing the petition. In fact, the extra step of registration creates extra work for employers and lawyers.

The anti-fraud provision of the rule attempts to address some of the realistic problems in the H-1B problem, but at the same time creates uncertainty for US employers and would most likely result in employers that have made bona fide job offers backing out for fear of the heightened scrutiny and potential liabilities.

DHS estimates that it will spend nearly $280,000 to develop the new system and $200,000 per year to maintain it. The proposed rule does not charge employers for the registration. How long the agency will forgo charging employers for registration is hard to predict, but USCIS has very few services that it provides to employers without a fee.

It is clear that this change will detrimentally impact the ability of US employers to continue to employ foreign workers. Current law allows the continued employment of F-1 OPT/STEM OPT and J-1 workers while the H-1B is pending, until their petitions are selected and approved OR even until the government announces they are not selected or not approved. The new rule means that fewer employers will have fewer H-1B petitions pending. The situation will be even worse if the new rule speeds up adjudications, as faster adjudications means faster denials. In sum, the new rule will result in fewer US employers being able to meet their staffing needs with pending H-1B petitions.

The announcement warns that the new rule may not be implemented in time for the April 2019 H-1B filing season, since there may not be enough time to fully test the system. If the new system has not gone into effect at least two weeks prior to the filing deadline, employers should be prepared to submit full H-1B petitions for all candidates on the first business day of April 2019.

Employers and stakeholders have until January 2, 2019 to submit comments on the proposed rule.

, , , , ,

DHS new rule on H-1B lottery process: Who’s the winner?

How to count to 12: USCIS clarifies L1A visa requirements

The rules regarding qualifying employment abroad, required for an L-1 intracompany transfer visa, are clarified, if not changed, in a new US Citizenship and Immigration Services (USCIS) policy memorandum (PM).

Dated November 15, 2018, USCIS PM-602-0167, states that:

  • All visa requirements must be satisfied as of the date the agency receives the L-1 visa petition;
  • The employee must be physically outside the US for the required 1 continuous year of employment; and
  • In certain cases, time spent in the US will not break the continuity required, but that time will not be counted towards the required 1 year.

The PM does not create new law or effect a change in policy. Its stated purpose is to clarify existing rules.

The requirement that a visa petitioner meet all legal requirements at the time the petition is filed is longstanding. It already was not possible to file a defective petition and then cure that defect with facts that occur subsequent to filing. That is why L-1 petitions could never be filed before an employee completed the full 12 months of employment abroad.

The PM repeats the agency’s regulation that brief trips to the US for business or pleasure do not interrupt the required 1 continuous year of employment abroad. The regulations never defined “brief” and the PM, regrettably, doesn’t either. There is an example in the memo of brief trips totaling 60 days during the 1 year. It would have been better if the PM stated whether, for example, 1 trip for 60 days is brief, or 2 trips for 30 days, etc. As a result, the situation is neither improved nor worsened by the PM’s issuance.

Even though the law already clearly states that only days when the employee is physically outside the US may be counted, the PM states that time spent in the US working for a qualifying organization does not count, and updates Chapter 32.3 of the Adjudicator’s Field Manual to reflect this needless clarification.

For the full text of the Policy Memo, can be found at the USCIS website.

Please contact the authors for more information about this PM, the L-1 intracompany transfer visa or other business visas for the US or any other of the many countries where Dentons guides clients on business and cross-border mobility matters.

, , , ,

How to count to 12: USCIS clarifies L1A visa requirements

No more EB5 job creation through tenant-occupancy models: New USCIS policy reduces availability of immigrant investor funds to create jobs for Americans

On May 15, 2018, USCIS revised its Policy Manual, effective immediately. The agency will no longer count the jobs created for US workers through tenant occupancy of EB5 properties. The result of this change is to reduce the amount of immigrant investor funds available to create jobs for US workers.

“EB5” refers to the US employment-based fifth preference immigrant visa. EB5 is a program (sometimes called “traditional EB5”) Congress created in 1990 to stimulate the US economy through job creation for US workers using investment by foreign investors. In 1992, Congress created the Immigrant Investor Pilot Program (regional center EB5), a temporary program that Congress has repeatedly extended, most recently through September 30, 2018. (See our previous posting “EB5 immigrant investor visas are available again”).

Both types of EB5s generally require that at least ten full-time equivalent new jobs for US workers be created by each immigrant’s investment. A key advantage of a regional center EB5 is that “indirect” and “induced” jobs are included in the job creation count (in addition to “direct” jobs), whereas a traditional EB5 counts only direct jobs.

Direct jobs refer to US workers employed directly by the business that received the EB5 investment. Payroll tax records show direct jobs. Indirect and induced jobs refer to employees of other business as a result of EB5 investment. The calculation of indirect and induced jobs is based on an economic analysis using models accepted by USCIS.

The “tenant-occupancy” model counts job creation by independent tenant businesses that lease space in buildings developed with EB5 funding. In the past, USCIS accepted the tenant-occupancy model.

USCIS’ skeptical attitude toward the tenant-occupancy model can be traced back to early 2012 when it rolled out a Request for Evidence (RFE) template for tenant occupancy seeking evidence that the projected jobs attributable to prospective tenants would represent only newly created jobs, and not jobs that had merely been related from another location. In December of that year, USCIS issued “Operational Guidance for EB-5 Cases Involving Tenant-Occupancy,” which clarified that to claim tenant jobs, the economic analysis must project the number of newly created jobs that would not have been created but for the economic activity of the EB5 commercial enterprise. In making that projection, the claimant must use economically and statistically valid forecasting tools. USCIS made determinations on a case-by-case basis and would generally require an evaluation of the verifiable details provided and the overall reasonableness of the methodology as presented.

The 2012 memo suggested two ways to demonstrate a causal relationship between the EB5 investment and tenant jobs:

  1. “[M]ap a specific amount of direct, imputed, or subsidized investment to such new jobs” (i.e., “show an equity or direct financial connection between the EB5 capital investment and the employees of the prospective tenants”); and
  2. Utilize a “facilitation-based approach,” seeking to “demonstrate that the economic benefits provided by a specific space/project will remove a significant market-based constraint” and “result in a specified prospective number of tenant jobs that will locate in that space.”

Beginning in 2013, USCIS modified its tenant-occupancy model position. The agency’s RFE template identified the following three distinct areas of concern:

  1. Will there be tenants to occupy the space once construction is completed?
  2. Will the tenant jobs be “new jobs” and not “merely relocated”?
  3. Are the job creation estimates based on a reasonable and transparent methodology?

Over the years, practitioners in the EB5 field have reported that in tenant-occupancy cases, USCIS, when issuing RFEs or Notices of Intent to Deny, tended to require EB5 immigrants to either (i) remove tenant jobs from the job creation calculation; or (ii) submit additional evidence that shows by the preponderance of evidence (more likely than not) that the tenants will be there to occupy the commercial space when the project is finished, that the tenant jobs are not merely relocated from another commercial space within the same geographical area, and that the estimated number of tenant jobs is a reasonable estimate.

Given the lengthy adjudication time, the capital at stake and the uncertainty involved, many EB5 immigrants gave up claiming tenant jobs. Subsequent formulations of EB5 projects largely steered away carefully from the tenant-occupancy methodology to avoid potential issues.

Now, USCIS has formally rescinded its previous guidance and will no longer consider tenant-occupancy methodology. The agency will continue to give deference to Form I-526 and Form I-829 petitions directly related to previous approved projects, absent material change, fraud or misrepresentation, or legal deficiency of the prior determination.

USCIS is accepting comments on the new policy until May 29, 2018.

Full text of the agency’s Policy Alert can be found here. Dentons represents regional centers, EB5 investment programs and individual investors on both traditional and regional center EB5 programs. Please contact your Dentons lawyer for more information.

, , , , , , , ,

No more EB5 job creation through tenant-occupancy models: New USCIS policy reduces availability of immigrant investor funds to create jobs for Americans

Stricter unlawful presence rules for foreign students and exchange visitors

Individuals in the United States on F, J and M visas (including F-2, J-2 and M-2 dependents) who fail to maintain their status will start accruing unlawful presence earlier, potentially spelling trouble for future immigration benefits, according to new US rules.

The US Citizenship and Immigration Services (USCIS) announced on Friday May 11, 2018, that the agency is changing the way it calculates the accrual of unlawful presence for nonimmigrant students and exchange visitors. The changes increase the likelihood that individuals in these two nonimmigrant visa categories will have problems on future immigration benefits.

Non-US citizens can be barred from obtaining visas, entering the US, and obtaining immigration benefits based on extended periods of unlawful presence in the US. If the individual accrues more than 180 days (but less than 1 year), he or she may be barred from re-entry for 3 years. Unlawful presence greater than 1 year can result in a 10-year bar.

The new policy, which becomes effective August 9, 2018, provides that nonimmigrant students and exchange visitors will start accruing unlawful presence either:

(1) the day after the visa holder no longer pursues the course of study or the authorized activity, or the day after they engage in an unauthorized activity; or

(2) the day after they complete the course of study or program, including any authorized practical training plus any authorized grace period.

In addition, visa holders start accruing unlawful presence on:

(3) the day after their I-94 expires; or

(4) the day after an immigration judge orders their deportation or removal of the individual.

Under the previous policy, an F, J or M visa holder would start accruing unlawful presence the day after the Department of Homeland Security (DHS) notified the visa holder that the individual violated his or her nonimmigrant status while adjudicating a request for another immigration benefit. Accruing unlawful presence under this criterion required notification by the USCIS to the visa holder of the violation.

This change is very important. There has always been a clear distinction between violating status and being unlawfully present, with only the latter situation having severe consequences for visa holders. A person could be in violation of status and not be unlawfully present. For instance, a foreign student on an F visa could drop out of school or perform unauthorized work and not accrue unlawful presence.

This situation is very specific to nonimmigrant students and exchange visitors because their Form I-94 and admission stamp usually list duration of status (or D/S) and not a specific date. Typically, F, J and M visa holders can maintain status as long as they remain enrolled or continue to participate in the activity for which they were admitted in the first place. The situation is different from other nonimmigrant visas, such as H-1B and L-1A visas, where unlawful presence generally starts accruing on the day after their visa stay permission on Form I-94 expires.

Under the new rule, even foreign students and exchange visitors who violate status unintentionally and without being aware of it, will start accruing unlawful presence—and may be in for an unpleasant surprise when they later apply for a new visa.

This announcement comes less than a month after USCIS updated its web page regarding the optional practical training (OPT) extension for international students with degrees in science, technology, engineering, and mathematics (STEM). USCIS now specifically provides that the training experience of STEM OPT workers may not be conducted at the place of business or worksite of the employer’s clients or customers. Combined with last week’s policy change, such an arrangement could cause the visa holder to accrue unlawful presence and later trigger a re-entry ban and visa denial.

We encourage employers who currently employ workers on F, J or M visas or who plan to do so, to carefully review the applicable rules, especially if you intend to subsequently apply for a new visa (e.g., H-1B, EB1, EB2) on their behalf.

For more information, please contact your Dentons lawyer and see the USCIS website for additional information.

, , , , , ,

Stricter unlawful presence rules for foreign students and exchange visitors

USCIS to require applicant’s signature for delivery of green card and EAD

Delivery of alien registration cards (popularly called green cards), employment authorization documents (EADs) and reentry permits will soon require the recipient to present valid photo identification at the time of delivery, with some exceptions.

The US Citizenship and Immigration Services (USCIS) announced on Friday, April 27, 2018, that the agency will soon start using the Signature Confirmation Restricted Delivery service from the US Postal Service. The stated goal is to increase “the security, integrity, and efficiency of document delivery” and provide “better tracking and accuracy of delivery information, improving service to applicants.” This new process applies to the delivery of secure documents, such as green cards, EAD cards and reentry permits. USCIS plans to first roll out the new process to secure documents that were returned as non-deliverable, and to subsequently expand use of signature confirmations to all deliveries of secure documents.

In general, applicants will have to present a valid ID to sign their documents upon delivery. USPS offers several alternatives, including designating another person to sign on the applicant’s behalf, authorizing the hotel or the apartment complex where the applicant resides to accept delivery, etc. Applicants can also sign up for Informed Delivery, an online service from USPS that provides delivery status notifications and allows for parcels to be held for in-person pickup at a USPS post office location.

This announcement comes less than a month after USCIS indicated that it would destroy such secure documents (green cards, EAD cards and travel booklets) after 60 days if returned as non-deliverable by USPS. These two recent announcements serve as a reminder that all foreign nationals are required to keep USCIS informed of their current address, and to report any change of address within 10 days of relocation by filing Form AR-11, either online or by post.

For more information, please contact your Dentons lawyer and for the full text of the agency’s press release can be found at the USCIS website.

, , ,

USCIS to require applicant’s signature for delivery of green card and EAD