May 2018

USCIS Implementing Online FOIA Request Processing

On May 30, 2018, U.S. Citizenship and Immigration Services (USCIS) launched a FOIA Immigration Records SysTem (FIRST), which will in time allow users to submit, manage, and receive Freedom of Information Act (FOIA) requests entirely online.

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Ecuador Terminates United States-Ecuador Bilateral Investment Treaty

The termination of the treaty ends the availability of E-2 visas for Ecuadorian nationals. The Government of Ecuador delivered to the United States a notice of termination for the bilateral investment treaty between the two countries. As a result, the treaty terminates as of May 18, 2018, except that it will continue to apply for another 10 years to investments made or acquired prior to the date of termination (May 18, 2018) and to which the treaty otherwise applies. 5/18/18. (83 FR 23327, 5/18/18).

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Applicants Can Request Replacement Naturalization Certificate and Naturalization Hearing Online

U.S. Citizenship and Immigration Services (USCIS) announced today that Form N-565, Application for Replacement of Naturalization/Citizenship Document, and Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings (Under Section 336 of the INA), can be filed online.

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DHS Announces Temporary Increase in H-2B Cap for Remainder of FY2018

DHS announced that an additional 15,000 H-2B visas will be available for FY2018. Secretary Nielsen stated it had been determined that there are not sufficient, qualified, U.S. workers available to perform temporary non-agriculture labor to satisfy the needs of American businesses in FY2018. DHS and DOL Temporary rule was published May 25, 2018 increasing the H-2B cap for the remainder of FY2018 by the additional 15,000 visas.

Starting May 31, 2018 through September 30, 2018 eligible petitioners for H-2B visas can file Form I-129, Petition for a Nonimmigrant Worker. Eligible petitioners must submit a supplemental attestation on Form ETA 9142-B-CAA-2 with their petition.

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The Walking DACA Filing DACA in an Age of Anxiety

Michael J. Totten’s article The Walking Dead in an Age of Anxiety quoted Heinrich Heine, German poet and journalist, who wrote "Wild, dark times are rumbling toward us" reminds us of the apocalyptic fear DACAnians live under each and every day. While there are no changes to the DACA program at this time. Each day DACAnians face the complete and final destruction of their world.

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DHS Proposes to Remove the International Entrepreneur Rule

DHS announced that it is proposing a rule to end the International Entrepreneur Parole Program, which allowed certain foreign entrepreneurs to be considered for parole to temporarily come to the United States to develop and build start-up businesses.

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Update: Form I-751, Petition to Remove Conditions on Residence

Due to a processing error on May 4, 2018, USCIS mailed a number of biometric services appointment notices with incorrect Application Support Center (ASC) locations to petitioners who filed Form I-751, Petition to Remove Conditions on Residence.

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Nepal TPS Re-Registration Period Announced

USCIS notice on the termination of the designation of Nepal for TPS on 6/24/19 provides that holders of TPS from Nepal who wish to maintain their TPS and receive an EAD valid through 6/24/19 must re-register for TPS in accordance with the procedures set forth in the notice (83 FR 23705, 5/22/18). Nepal TPS Re-Registration

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Adjustment of Status Interview Guidelines and Waiver Criteria

USCIS is updating guidance regarding adjustment of status interview guidelines and interview waivers by:

  • Clarifying that USCIS will interview all adjustment of status applicants unless USCIS waives the interview;
  • Removing employment-based and fiancé(e)-based adjustment cases from the list of types of adjustment of status cases in which USCIS might waive the interview; and
  • Editing the guidance on relocating cases for adjustment interviews to be consistent with the updated list of cases in which USCIS might waive the interview.

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Delayed Issuance of I-751 Receipt Notices by California Service Center (CSC)

AILA attorneys are reporting that they have not received receipt notices for I-751s filed with the CSC since the beginning of April 2018. In response we reached out to report the issue, the CSC has confirmed the delay in data-entry and receipt notice issuance for I-751 petitions filed with the CSC since early April. As of Monday, May 14, 2018, the CSC has started to key-in I-751 petitions again in first in / first out order, starting with those received in early April

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NSC Premium Processing Email Notification Failure

The Nebraska Service Center's (NSC) Premium Processing Unit confirmed a lack of email notifications was due to a technical glitch with its system. For several weeks, American Immigration Lawyer Association (AILA) members were not receiving any email notifications for petitions filed with the NSC Premium Processing Unit.

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USCIS Completes Data Entry of Fiscal Year 2019 H-1B Cap Subject Petitions

USCIS has completed data entry for all fiscal year 2019 H-1B cap-subject petitions selected in their computer-generated random selection process. USCIS is sending receipt noticed for the 2019 H-1B cap-subject petitions selected until all selected petitions are receipted. USCIS is now returning unselected cap-subject petitions until all H-1B cap-subject petitions that were not selected are returned. Due to the high volume of filings, USCIS cannot provide a definite time frame for returning unselected petitions. USCIS asks petitioners not to inquire about the status of their cap-subject petitions until they receive a receipt notice or an unselected petition is returned. The receipt of cap-subject petitions selected and return of cap-subject petitions not selected may take several weeks. USCIS will issue an announcement once all the unselected petitions have been returned.

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USCIS to Recall Incorrectly Dated Green Cards

On May 14, 2018, USCIS will begin recalling approximately 8,543 Permanent Resident Cards (also known as Green Cards) due to a production error. The Green Cards were for approved Form I-751, Petition to Remove Conditions of Residence for spouses of U.S. citizens. The cards were printed with an incorrect "Resident Since" date and mailed between February and April 2018.

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USCIS and the Justice Department Formalize Partnership to Protect U.S. Workers from Discrimination and Combat Fraud

U.S. Citizenship and Immigration Services (USCIS) and the Department of Justice today announced a Memorandum of Understanding (MOU) that expands their collaboration to better detect and eliminate fraud, abuse, and discrimination by employers bringing foreign visa workers to the United States. This new effort improves the way the agencies share information, collaborate on cases, and train each other’s investigators.

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USCIS Changing Policy on Accrued Unlawful Presence by Nonimmigrant Students and Exchange Visitors

U.S. Citizenship and Immigration Services (USCIS) today posted a policy memorandum changing how the agency will calculate unlawful presence for students and exchange visitors in F, J, and M nonimmigrant status, including F-2, J-2, or M-2 dependents, who fail to maintain their status in the United States.

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DACA Recipients File Motion to Intervene in Texas' Lawsuit Challenging DACA Program

A group of DACA recipients filed a motion to intervene in a lawsuit challenging the DACA that was filed by Texas and six other states earlier this month, arguing that their interests are not represented in the case, given the plaintiff states and the defendant, the federal government, all oppose the DACA program. See this Reuters article and MALDEF's press release for more information. Read the motion and supporting documents here, MALDEF DACA Recipient biographies, and a timeline of significant dates in the history of DACA.

Modernizing The H-4 Visa For Spouses Of Temporary Workers Policy Brief

The Niskanen Center released a policy brief examining the H-4 visa category for spouses of H-1B workers and the impact that the rescission of H-4 work authorization regulation would have on H-4 visa holders, U.S. businesses, and the economy. While recognizing the H-4 visa needs to be modernized. The policy brief recommends this administration—which has advocated for an immigration system based more on merit and skills —should seek to leverage the talents and capacities of the ambitious spouses of today’s foreign-born workforce. Blocking H-4 visa holders—overwhelmingly women— from working unfairly lessens opportunities for immigrant women while damaging the U.S. economy.

Potomac Service Center to Begin Processing Form I-601A

On May 7, 2018, the Potomac Service Center (PSC) will begin processing Forms I-601A, Application for Provisional Unlawful Presence Waiver. The PSC Workload Transfer will allow PSC to share the I-601A workload with the Nebraska Service Center to balance workloads and to provide flexibility as USCIS works towards improving processing times and efficiency. The National Benefits Center will no longer process any Form I-601A applications.

EB-5 Updated May 2018

The EB-5 program has been extended to the end of September. There is pressure on Congress to increase investment from $500,000 to $925,000 or higher. In fact, on April 5th, Senate and House Judiciary Committee chairmen Chuck Grassley (R-Iowa) and Bob Goodlatte (R-Va.) and former Senate Judiciary Committee chairman Patrick Leahy (D-Vt.) issued a letter to the Secretary of Homeland Security, urging the swift implementation of changes to the EB-5 program, including raising the minimum investment amount from $500,000 to $1.35 million.

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DOL Auditing Business Existence During PERM Process

Immigration attorneys are reporting Department of Labor PERM audits which request evidence of Business Existence, such as tax returns, business licenses, leases, incorporation paperwork, etc. Such requests appear in the body of the audit itself or as an attachment. The PERM audit Business Existence Requests are not the Business Existence requests in the original PERM registration process. This may be a trend or it may be isolated reports. We recommend employers respond to the audit as you would normally and in a timely manner.

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DHS to Terminate TPS Designation for Honduras

DHS announced Secretary of Homeland Security Kirstjen M. Nielsen Announced the Administration’s decision to terminate Honduras' Temporary Protected Status (TPS) designation effective January 5, 2020. Honduran citizens with current TPS registration will be required to re-register and apply for Employment Authorization Documents (EADs) in order to legally work in the United States until the termination becomes effective. Further details, including the re-registration process and period, will appear in a Federal Register notice. Honduran TPS beneficiaries should not submit re-registration applications until the re-registration period is announced through the Federal Register notice.

USCIS Changes EB-5 Investors Form I-829 To Extend Permanent Resident Status

EB-5 Policy Manual Conditional Resident Update: Continued Job Creation and Capital At Risk Requirements for Investors To become a lawful permanent resident without conditions, immigrant investors must properly file a Petition by Entrepreneur to Remove Conditions on Permanent Resident Status (Form I-829). Once USCIS receives a properly filed Form I-829, USCIS automatically extends the immigrant’s CPR status for 1 year, with opportunities for further extension, until the Form I-829 is adjudicated or a final order of removal is issued.

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USCIS Policy on DNA Evidence in Support of Sibling Relationships Updated

The updated USCIS policy memorandum on the acceptance of DNA evidence supporting sibling relationships permits officers to suggest and consider direct sibling-to-sibling DNA test results, and provides standards for evaluating DNA results for full siblings and half siblings. This guidance is to enhance the agency’s ability to accurately evaluate eligibility for immigration benefits by allowing petitioners and officers to make effective use of recent technological advances in direct sibling DNA test results.

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Texas and Six Other States Sue the Government to End the DACA Program

Texas and six other states filed a lawsuit against the federal government, challenging the 2012 executive action that created the DACA program and seeking an injunction against the issuance or renewal of any DACA permits in the future. (Texas v. United States, 5/1/18)

EB-5 Policy Manual Conditional Resident Update: Job Creation and Capital At Risk Requirements for Investors

The U.S. Citizenship and Immigration Services (USCIS) Form I-829 Petition by Entrepreneur to Remove Conditions on Permanent Resident Status is for immigrant entrepreneurs to petition to remove the conditions on their, and certain dependents’, permanent resident status which they obtained through the EB-5 immigrant visa program based on investment in a new commercial enterprise. The petitioner must submit the Form I-829 within the 90-day period immediately preceding the second anniversary of obtaining conditional permanent resident status

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