Updated: October 8, 2019
October 8, 2019: Immigrant visa proclamation
Last Friday the current president issued a proclamation requiring applicants for immigrant visas to demonstrate that they have either medical insurance to cover them in the US or sufficient money to be able to pay for ‘reasonably foreseeable’ medical care they may need. The purported justification for altering immigration law without Congressional action is to protect the US healthcare system from the financial harm caused by rendering services to immigrants who lack the funds or insurance to pay for those services. The proclamation has an effective date of November 3. In your author’s opinion its chances of surviving the inevitable lawsuits and judicial scrutiny are thankfully slim.
October 1, 2019: Green card lottery; CBP outside the law
The Department of State has announced that it will accept applications for the Fiscal Year 2021 diversity visa program—the so-called ‘green card lottery’—beginning tomorrow, Wednesday October 2, at noon Washington time. The application period will end at noon, Eastern Standard Time, on Tuesday November 5. Instructions for entering this year’s lottery can be found here. New this year: natives of Guatemala are not eligible to apply, whereas natives of Peru are now eligible again. More details are now available in our newly updated seasonal article Do You Feel Lucky? US Government Now Accepting Applications for the Green Card Lottery.
The Department of Homeland Security’s Office of Inspector General released a report finding that Customs and Border Patrol agents at the Tecate, California port of entry violated federal law and policy in their treatment of asylum seekers.
September 17, 2019: Laugh or you’ll cry; tax relief for exiting US citizens
Yesterday the British comedian John Oliver included in his US television programme ‘Last Week Tonight’ a lengthy and accurate riff on the US immigration system. The article in today’s Guardian offers a summary for those without access to video from US sites.
Persons considering giving up their US citizenship, and those persons who have given up their citizenship since March 18, 2010, may benefit from some tax relief under a new Internal Revenue Service scheme. The tax professionals at Frank Hirth plc have prepared a summary that can be accessed here.
September 10, 2019: Work permit delays for asylum seekers; refugee numbers to be cut
It continues to be a bad time to expect humanitarian action from the US Government.
The USCIS has published in the Federal Register a proposed rule that would remove the requirement that it act within 30 days on work permit applications filed by asylum applicants. In a flawless example of Newspeak the USCIS characterises this as ‘reforming the current 30-day timeline pertaining to pending asylum applicants.’
The US proposes to drastically reduce the number of refugees allowed to resettle in the US.
September 3, 2019: Disaster relief takes second place; detentions
As Hurricane Dorian makes it way toward the US East Coast it is good to remind ourselves that Homeland Security just reallocated $155 million from the federal government’s disaster relief agency, the Federal Emergency Management Agency (FEMA). The new use for that money? To detain and return would-be immigrants.
Homeland Security’s Immigration and Customs Enforcement (ICE) agency has published statistics regarding the number of people who are in the custody of ICE and of Customs and Border Protection. These figures will supposedly be updated weekly.
August 20, 2019: New public charge rule under fire; expatriate list; North Korea
The attorneys general of 13 States have filed suit in the federal court for the Eastern District of Washington against the new ‘public charge’ rule that is set to go into effect in November. The 169 page complaint gives a narrative of the public charge exclusion as it has evolved over time and details the history of the Trump Administration’s animus toward immigrants. It alleges that the State plaintiffs will be irreparably damaged by the fact that noncitizens, fearful of the effect on their immigration status, will be afraid to access public benefits when they are needed, and that this will lead to ‘increased poverty, homelessness, hunger, poor health, and other social costs.’
The latest quarterly list of people who have given up either US citizenship or long-term permanent resident (‘green card’) status was published last Thursday. The toll during the quarter that ended June 30 was supposedly 609, although there are numerous obvious duplicates.
Just in time for the autumn travel season, the invalidity of US passports for travel to or through North Korea has been extended for a further year, to August 31, 2020.
Today we have a new blog post about Native Americans and the borderlands.
August 13, 2019: USCIS closures; $1 million doesn’t go as far as it used to; final rule regarding ‘public charge’
The good news: On August 9 the USCIS announced that it will be keeping open a total of seven of its international offices. The bad news: None of them is London.
Potential EB-5 investors have 61 pages of a new rule to chew over, published on July 24 and effective on November 21. Highlights: The rule raises the minimum required amounts of investment to $1.8 million (or $900,000 in a Targeted Employment Area (TEA)) and takes into federal rather than state control the ability to designate TEA’s.
Finally: The Department of Homeland Security will tomorrow publish in the Federal Register a final rule, to take effect in 60 days, on the fraught issue of ‘public charge.’ The draft rule is discussed in our October 16, 2018 entry in ‘Weekly Update.’ The final rule will penalize both persons seeking lawful permanent resident (‘green card’) status and those seeking to extend or change their nonimmigrant status if they have received any type of public assistance in the United States. There are exceptions for certain type of aid, such as food for children and pregnant women, and not all people are subject to the rule. For example, it does not apply to asylees or refugees. One of the many fears of organizations caring for foreigners in the United States is the chilling effect--that many people who are entitled to benefits such as supplemental food aid will not apply for fear of being refused future immigration benefits.
July 23, 2019: E visas in the news
Last week the US Government Accountability Office released a lengthy report with the snappy title ‘Nonimmigrant Investors: Actions Needed to Improve E-2 Visa Adjudication and Fraud Coordination.’ The GAO’s investigation took a year and involved visits to several E visa posts, among them our very own US Embassy London. Among the various interesting facts: During the period 2014-18 the visa refusal rate for E-2 investors was a shockingly high 24%. On the other hand the refusal rate was only 6% for applicants claiming ‘specialized skills essential to the efficient operation of the US enterprise.’
July 16, 2019: Asylum gets harder
In today’s Federal Register the US Department of Justice and the Department of Homeland Security jointly published an interim rule, effective immediately, on the subject of asylum. With limited exceptions persons arriving in the US across the southern land border will be ineligible for asylum unless they have applied for, and been denied, protection in at least one of the other countries through which they have transited on their way to the United States. In the section ‘Purpose of the Proposed Rule’ the Departments baldly state that denying asylum to people who have not claimed asylum en route ‘will better position the United States as it engages in ongoing diplomatic negotiations with Mexico and the Norther Triangle countries (Guatemala, El Salvador, and Honduras) regarding migration issues in general, related measures employed to control the flow of aliens into the United States….and the urgent need to address the humanitarian and security crisis along the southern land border between the United States and Mexico.’ So, a bargaining chip. According to the Departments Mexico offers a ‘robust protection regime’ to persons needing asylum. (Not according to the most recent State Department Human Rights Report on Mexico, however.) The current US president has attempted to persuade Guatemala, a source of thousands of asylum applicants at the US border, to become a ‘safe third country’ to which their own and other countries’ citizens could be sent from the US.
July 9, 2019: US naturalization questions
Last week was the US’s annual Independence Day celebration and in advance of the July 4 holiday the New York Times ran a quiz with the 10 most difficult questions on the naturalization test. If you would like to try them, click here.
July 2, 2019: Tent city in Arizona for migrants; US citizenship and modern medicine
Customs and Border Protection has announced the completion of a ‘temporary, soft-sided facility’ (a big tent) in Yuma, Arizona, to accommodate up to 500 people while they await transfer to longer-term facilities maintained by Immigration and Customs Enforcement or the Office of Refugee Resettlement. Photographs are available here. The CBP points out that the tent does have air conditioning, and good thing, too: The forecast high temperature today in Yuma is 42 degrees C.
Today we have a new blog post about the difficulties faced by some same-sex couples in registering their children as US citizens.
June 25, 2019: Hard to believe
The drum beat of shocking news about the conditions endured by migrant children at the US southern border continues. Emergency funding has been voted, in different packages, by the House of Representatives and by the Senate. Meanwhile a lawyer from the US Department of Justice has argued that the legal requirement that children in immigration detention be kept in ‘safe and sanitary’ conditions does not mean that they must be given soap, blankets or toothbrushes.
June 18, 2019: Less and less service from the USCIS; underage marriage and the immigrant visa
The USCIS has announced that beginning July 1 its international offices will no longer accept I-407 forms for the abandonment of lawful permanent resident status. Previously such forms had been accepted and processed by USCIS international field offices such as the one in London or, currently, by USCIS district offices such as the one in Rome. Now all I-407 forms must be sent to an office in Vermont, the address of which is in the announcement. Processing time is estimated at 60 days.
Under their apparent new motto of ‘do let’s be beastly to foreigners,’ the USCIS has also announced that its officers are going to remind adjustment of status applicants, at every adjustment interview, that their sponsors are responsible to keep them off benefits. One assumes that this applies only to those people who require an I-864; most employment-based adjustment applicants do not.
Through an amendment yesterday, June 17, to its Foreign Affairs Manual the Department of State has made it clear that spouses under the age of 18 cannot qualify as sponsors for purposes of the affidavit of support required for a spousal immigrant visa. This inability cannot be cured by use of a joint sponsor.
June 11, 2019: Social media; cocaine and politics
On May 31 the US Department of State revised its immigrant and non-immigrant visa forms to require applicants to provide information about their social media presence during the previous five years. This information is requested, but not yet required, on the ESTA application used for travel under the Visa Waiver Program.
Susan McFadden’s interview with the Sunday Times about the possible impact of Michael Gove’s admission of historic cocaine use on his ability to travel to the US was widely quoted elsewhere, including the Sun and the Daily Mail.
June 4, 2019: London closing;
According to BuzzFeed the previously-announced closing of the London office of the US Citizenship and Immigration Service will now take place by the end of January 2020.
This week’s guest blog discusses the fraught and complex question of Native Americans’ status as US citizens.
May 28, 2019: SEVIS fees to rise
In a final rule, published last Thursday in the Federal Register, the USCIS announced fee increases for persons and entities involved in student and exchange visitor programs. The SEVIS fee charged to applicants for F (academic students) and M (vocational students) visas will increase from $200 to $350. The fees charged to schools seeking SEVIS certification will also increase, raising funds which the USCIS states will help it counter immigration fraud.
May 21, 2019: Long live the (immigration) czar
Last week the Trump administration proposed sweeping changes in US immigration—changes which have no chance of becoming law. Meanwhile the current president is looking for someone to serve as an ‘immigration czar,’ to deal with the issue across the various competing governmental departments.
May 14, 2018: Expatriates; expropriated property
Yesterday’s Federal Register contained the latest list of those people who are on record with the Internal Revenue Service as having given up their US citizenship or long-term permanent resident status. Covering the first calendar quarter of 2019 the new list contains 1,018 names, from Abdulsalam to Zoltu, including four Andersons, four Johnsons, eight Kims, 11 Lees and six Wilsons.
A long-dormant section (Title III) of the Cuban Liberty and Democratic Solidarity (Libertad) Act of 1996 has now roared to life. Title III allowed US citizens to sue in federal court any persons or companies who benefited from the use of property in Cuba that had been expropriated from US citizens after the Cuban revolution. Until now the effective date of this section of the law had been postponed every six months by successive presidents. The Trumpian change in policy was announced by Secretary of State Mike Pompeo and brought to greater attention by National Security Advisor John Bolton at a ceremony commemorating the 58th anniversary of the failed Bays of Pigs invasion, a 1961 US operation that attempted to dislodge Fidel Castro. Miami-based Carnival Cruise Lineshas been the first entity to be sued.
May 7, 2019: Change in ineligibility waiver requests
In yesterday’s Federal Register the Department of State published a new final rule, effective immediately, regarding the procedure for requesting a waiver of ineligibility in the nonimmigrant visa context. Until yesterday’s new rule when an interviewing consular officer declined to recommend to Homeland Security that a nonimmigrant visa applicant be given a waiver of ineligibility that applicant had a right to request that the consular officer refer the waiver request to the Department of State in Washington, DC., where the Secretary had the authority to recommend a waiver in spite of the consular officer’s decision. As of yesterday applicants can no longer require that a waiver request be forwarded to the Department.
April 30, 2019: Bad news coming?
On April 22 the current president issued a memorandum on the subject of immigration. This never bodes well. On this occasion the president ordered the Secretary of State to prepare recommendations within 120 days on ways to reduce B visitor visa overstay rates of citizens from those countries with overstay rates of more than 10%, as identified in the Department of Homeland Security’s Fiscal Year 2018 Entry/Exit Overstay Report. A total of 17 countries will be affected. Well done, Federated States of Micronesia, whose overstay rate came in at exactly 10.00% and therefore should not be affected. The memorandum also directs the Secretary of Homeland Security to prepare within 180 days a report regarding that department’s ‘ongoing efforts to reduce overstays from countries participating in the Visa Waiver Program.’
April 23, 2019: Bad news for cannabis users; ‘Ellis Island of the West’
The USCIS has issued a Policy Alert on the subject of drug use and eligibility to obtain US citizenship through naturalization. It is now clear that an applicant who admits to violating federal controlled substance law during the pre-naturalization ‘statutory period’ (five years before application filing for most applicants, three years for the spouses of US citizens) will be found to lack the ‘good moral character’ required for naturalization. This is true even where the conduct (for example, use of cannabis) was not a violation of state law.
This week we have a guest blog about California’s Angel Island, which served in the early years of the previous century as a gateway and processing centre for immigrants.
April 16, 2019: Pause in the service
Your correspondent is travelling. ‘Weekly Update’ will return next week. In the meantime, happy Easter break to all.
April 9, 2019: H-1B quota reached; change at DHS; Nazi scientists; new publication
In the least surprising news of last week the US Citizenship and Immigration Services announced that the cap for H-1B petitions has been reached. It will now determine whether the separate cap of 20,000 for persons with earned advanced degrees from US institutions has been reached.
Kirstjen Nielsen, the Secretary of the Department of Homeland Security who enforced the order to separate migrant children from their families at the US border, has been forced from her position. The president will be going through his address book in search of someone even crueller.
Speaking of cruelty and immigration, the topic of today’s issue of our occasional blog is the importation by the United States after World War II of German scientists, some with horrifying Nazi backgrounds. See ‘Operation Paperclip.’
An article by our principal, Susan McFadden, has appeared in the current issue of German Law Journal, published by Cambridge University Press. The title of the article is ‘German Citizenship Law and the Turkish Diaspora.’
April 2, 2019: The H-1B season
To mark the annual five-day period during which prospective employers can file petitions to hire persons pursuant to H-1B status, the USCIS has created what they call the H-1B Employer Data Hub. It allows interested parties to search by any of a number of variables, including employer name, and obtain data regarding those H-1B petitions filed by the employer. Instructions on how to use the Hub can be found here.
March 26, 2019: Visas for witnesses
The world of US immigration was uncharacteristically devoid of new developments last week. Fortunately, to fill the gap we have a guest blog on the intriguing topic of the S visa, designed for witnesses with information about terrorism or criminal organizations.
March 19, 2019: US citizens and spouses hit
Last week there was bad news for US citizens living abroad and their non US citizen spouses. A number of news outlets reported on an email sent by the head of the US Citizenship and Immigration Services (USCIS) to the effect that the USCIS will be closing all of its international field offices over the course of the next year. This will mean that in the not-too-distant future all applications for immigration even by the spouses and children of US citizens will begin with an I-130 Petition for Alien Relative filed with an office of the USCIS in the United States. After approval the case would then go to the National Visa Center, which reviews applicant documents (typically losing some of them in the process) and schedules interviews for applicants in their home countries. When one realises that this process when performed Stateside takes in excess of 18 months, as opposed to the six months typical in London, the magnitude of our upcoming loss is obvious.
March 12, 2019: New I-539 unveiled; reason to hope
The new versions of the forms required for many changes of status or extensions of status, the I-539 and I-539A, have been posted by the USCIS on its website. Use of these forms will become mandatory on March 22, 2019.
The President’s Message in the latest issue of Arizona Attorney, the publication of the State Bar of Arizona, contains a timely reminder—because when was humour not needed, in the depths of March?—of one of the wittiest law review notes ever, ‘The Common Law Origins of the Infield Fly Rule.’
March 5, 2019: Delay in roll-out of I-539
Further to the topic of the new I-539, which we addressed in the Weekly Update of February 12, there is some good news. The USCIS has announced that the new form will be available on Friday, March 8, one working day ahead of its effectiveness. More helpfully, the agency will continue to accept the current form (which bears an edition date of 12/23/2016) until March 21.
February 26, 2019: Thrown out of work?
The Department of Homeland Security has sent to the Office of Management and Budget for review a proposed new rule that would remove the employment authorization currently available to some H-4 spouses of H-1B visa holders. Since May 26, 2015 H-4 spouses have been able to apply for employment authorization if their spouse is either the beneficiary of an approved I-140 immigrant petition or has had his H-1B status extended past the usual six-year maximum while awaiting adjudication of an immigrant petition. Upon clearance by the OMB the proposed new rule will be published in the Federal Register for a period of public comment.
February 19, 2019: Emergency? minor marriages; citizenship and death
On Friday February 15 the current president of the United States declared a national emergency along the border to Mexico, which would allow him to use for wall construction funds that were allocated by Congress for other purposes. On Monday evening California and 15 other states filed a lawsuit challenging the declaration of emergency; at least three other lawsuits are already pending.
The USCIS has issued new guidance to its adjudicators, requiring them to give particular scrutiny to spousal petitions where one of the marital partners was a minor at the time the marriage was celebrated.
On a lighter note, we have a guest blog today on the cheery topic ‘Citizenship and Death,’ from author Julia Trocmé-Latter.
February 12, 2019: New requirement for accompanying family members and others
When a family is in the US due to the employment of a parent, the parent’s employer will often need to file a new petition, an I-129 Petition for Nonimmigrant Worker, in order for the employee to be allowed to stay longer than originally permitted. The family members file an application, the I-539 Application to Extend/Change Nonimmigrant Status, to extend their stay. Other situations where an I-539 would be filed include a person asking for additional time to remain in the US after entry on a B visitor’s visa, or someone seeking to change from one type of classification to another. The USCIS has just announced that effective March 11 there will be a new version of the I-539 for the initial applicant and a new supplement to it, the I-539A, to be used for each subsequent applicant. Although the form will not be posted on the USCIS website until March 11, the day its use becomes mandatory, the USCIS announcement states that there will be a new requirement that each applicant pay a biometrics fee of US$85 and attend an appointment where their biometrics (photograph and fingerprints) will be taken.
February 5, 2019: H-1B changes; price of poverty goes up
In last Thursday’s Federal Register the US Citizenship and Immigration Services published its final rule for changes to the H-1B process. The USCIS announcement can be seen here. Although the rule is effective April 1, 2019 the biggest change—requiring pre-registration of employers who would like to sponsor applicants for H-1B visas—will be suspended for the upcoming FY2020 H-1B petition filing period between April 1 and 5, 2019, to ensure that the new system is fully functional. One change that will be effective for the FY2020 registration period is a change in the order in which petitions are selected for adjudication. The change in order is designed to advantage those with US advanced degrees; the USCIS estimates it will mean an increase of approximately 16% in the number of selected H-1B petitions for beneficiaries who have earned advanced degrees in the US.
The Department of Health and Human Services has issued its annual update of the official poverty figures. These figures are the basis for the income levels set for the I-864 Affidavit of Support in the I-864P, which should be updated this month, Government shutdown permitting.
January 29, 2019: Suspiciously quiet
Perhaps it was the fight over the US Government shutdown, perhaps it was Brexit, but last week nothing reportable happened on the US immigration front. Please check back next Tuesday, as this state of affairs is unlikely to continue for long.
January 22, 2019: Absenteeism in the airports
With the shutdown of the federal government now entering its second month many federal employees are finding that they cannot afford to work for no pay. The Transportation Security Administration, whose employees and contractors inspect people and baggage in US airports, now sends out an email every day to report on absenteeism. Fully 10% of TSA employees scheduled to work last Sunday did not show up; the rate last year on the same date was 3%. As the email laconically states: 'Many employees are reporting that they are not able to report to work due to financial limitations.'
January 15, 2019: Nannies ripped off; USCIS online fee calculator; child marriage
A class action lawsuit filed by former J-1 visa nannies alleging that the agencies that sponsored their visas illegally colluded to depress wages has been settled, reports National Public Radio. If the settlement is approved by the court more than US$65.5 million will be available for back pay to the approximately 100,000 J-1 au pairs who took part from 2009 to 2018.
The USCIS has developed an Online Fee Calculator to assist customers in determining the correct fee to remit with their applications and petitions.
The US Senate’s Committee on Homeland Security and Governmental Affairs has just released a thought-provoking report on the ways in which the US immigration system unintentionally supports child marriage. We have a new blog entry on that subject.
January 8, 2019: Government shutdown good news and bad news
In spite of the US Government’s continuing shutdown, now in its third week, most of our readers will suffer no immediate inconvenience. The Department of State’s visa and passport issuing services are funded by user fees, not Congressional appropriations, and these services remain open. People with appointments for interviews at the US Embassy in London should attend their appointments as scheduled. The same is true for the US Citizenship and Immigration Services, which is continuing to adjudicate petitions and conduct interviews for immigration benefits such as permanent residence and naturalisation. Employees of Homeland Security’s Customs and Border Protection and Transport Security Administration, along with air traffic controllers, have been designated ‘essential’ and although unpaid continue for the moment to provide services to travellers.
The bad news is that the tourist will find many federal museums closed—the 19 Smithsonian Institutions in Washington DC, for example. National Parks remain open and without Park employees to collect entrance fees are enjoying a boom in user numbers. However without waste collection or effective policing many parks are overflowing with rubbish and badly-behaved visitors.
December 18, 2018: G&M festive season hours
Our office will close for the holidays from 1.00 pm on Monday December 24 and will reopen at 9.00 am on Wednesday January 2. During this time we will continue to answer urgent client e-mails. Other requests will be dealt with as soon as reasonably possible. “Weekly Update” will resume on January 8, so please check back with us then. We wish our readers a happy and healthy festive season.
December 11, 2018: E-3 visas for the Irish? Interview waivers for conditional permanent residents
A bill has passed the lame duck House of Representatives to extend E-3 visas to Irish citizens. The E-3 visa, as described in our website article Frequently Asked Questions About the ‘Australians Only’ E-3 Visa, is currently available to only citizens of Australia, who must have the equivalent of a US bachelor’s degree in a specialty field and be going into a job in the US that requires such a degree for entry. A maximum of 10,500 principal E-3 visas are available every year, and that quota has never been reached. If approved by the Senate and signed by the President this bill, HR 7164, would take the number of E-3 visas not used by Australians in one year and make them available to qualifying Irish citizens in the next year.
Yesterday the USCIS issued a new Policy Memorandum to its officers, explaining the circumstances under which an in-person interview should be waived in the case of an I-751 Petition to Remove Conditions on Residence. The I-751 is filed to remove the conditions on the status of a lawful permanent resident who gained LPR (‘green card’) status from marriage to a US citizen, where the marriage was less than two years old when the non-citizen spouse became an LPR. The revised Memorandum makes it clear that the vast majority of cases will qualify for an interview waiver.
December 4, 2018: Embassy closing; new scheme for H-1Bs
US Government offices, including embassies, will be closed tomorrow, December 5, in honour of former president George H.W. Bush, who died last week. People who had visa interviews at the Embassy in London scheduled for tomorrow should check their account at https://ais.usvisa-info.com/en-gb/niv for a rescheduled date.
Homeland Security has published a proposed rule that would change the H-1B process. The biggest change: Prospective employers would register their interest in filing a petition for a named beneficiary and only if chosen in the lottery would the employer then need to send in a petition for adjudication. An explanatory press release can be found here.
November 27, 2018: A pause in the service
The world of US immigration has been oddly quiet this week. Please come back and visit us next week, when this state of affairs will undoubtedly have changed.
November 20, 2018: Asylum restrictions put on hold; quarterly expatriate report
The lawsuit mentioned in our previous Weekly Update, challenging the presidential proclamation that would have barred asylum claims from persons who entered the US except through established ports of entry, has resulted in a temporary restraining order (TRO) against the implementation of that proclamation and of the new Homeland Security interim rule based upon it. The federal district (trial) court judge issued a temporary nationwide bar against refusing to accept asylum claims from persons who were not inspected upon entry, saying that the proclamation and the new rule violated Section 208 of the Immigration and Nationality Act specifically permitting such claims. The TRO will stand, maintaining the law as it was before the proclamation and interim rule, until the case is decided by the court.
The Internal Revenue Service published last Friday its usual list of those persons who, during the previous calendar quarter, gave up either their US citizenship or their long-term permanent residence. The list includes 1090 names, a number nearly identical to the last list (1086).
November 13, 2018: Small hands, small heart
The current president of the United States acted decisively last Friday to protect his country, the richest and most powerful in the world, from the existential threat posed by several thousand poverty-stricken Central American migrants making their way north. Effective immediately persons who enter the US from Mexico illegally—that is, without being inspected at a US port of entry—will no longer be able to apply for asylum in the US. This even though the Department of Homeland Security’s own Office of Inspector General recently reported that Customs and Border Protection officers were turning away asylum applicants at the border. Or as the OIG put it: ‘Faced with resource limitations and other challenges, DHS regulated the number of asylum-seekers entering the country through ports of entry at the same time that it encouraged asylum-seekers to come to the ports [leading] some aliens who would otherwise seek legal entry into the United States to cross the border illegally.’ At least one lawsuit has already been filed, claiming that the president’s action violates federal and international law.
November 6, 2018: Video of visa interview process; election avoidance
The London Embassy has a new YouTube video setting out in a helpful step-by-step fashion the process that is followed at the Embassy on the day of a non-immigrant visa interview.
Today is Election Day in the United States. The results, in particular whether the Democrats can take control of the House of Representatives, thereby making it impossible for the Republicans to pass legislation without some Democratic support, will determine whether the president is able to follow through on the immigration-related pronouncements made during the campaign. Among them are the threat to deny access to asylum seekers at the southern border and to overturn by executive order the Constitutional assurance of citizenship to all persons born in the United States. For a stress-relieving website to get away from thinking about the election, the New York Times offers this.
October 30, 2018: Last call for the green card lottery
One week from today, Tuesday November 6, will be the last (partial) day this year to apply for the diversity immigrant visa, otherwise known as the green card lottery. For information and links to the US Government website where you can apply please see our article Do You Feel Lucky? US Government Now Accepting Applications for the Green Card Lottery.
October 23, 2018: Moving north
Migrants primarily from the Central American countries of Honduras and Guatemala have joined forces and are proceeding north through Mexico. The group (photographs here), originally a few hundred people, has now swelled in size to an estimated seven thousand. Some have applied to remain in Mexico; some have announced intentions to continue traveling until they reach the United States. These so-called ‘caravans’ offer migrants protection against predators (for an account of the harrowing trip through Mexico see Oscar Martinez’s The Beast ) but induce hysteria among the United States Government’s Twitterati.
October 16, 2018: Royal baby; public charge and hungry children; cannabis revisited
The recent announcement that Prince Harry and his American bride Meghan Markle are expecting a baby next spring led the New York Times to run a story entitled ‘Will Meghan Markle’s Royal Baby Have American Citizenship?’ (Spoiler alert: The answer is ‘yes.’)
The long-trailed proposed rule that would impose new ‘public charge’ restrictions on people applying for lawful permanent resident (‘green card’) status and even on nonimmigrants seeking to change status or extend their stay in the US, was published in the Federal Register last Wednesday. Your writer has not yet thought through all the effects of the 183 page proposal but can say that it is jolly generous of Homeland Security to allow noncitizens, without effect on their immigration status, to receive ‘Short-term, non-cash, in-kind emergency disaster relief.’ In addition, poor children under 18 will continue to be eligible for free school lunches and food stamps. Ta, US Government.
Customs and Border Protection has updated its previous statement (reported in the October 9 Weekly Update) on the admission to the US of Canadians engaged in what will be as of tomorrow the legal sale of cannabis in their country. ‘A Canadian citizen working in or facilitating the proliferation of the legal marijuana industry in Canada, coming to the U.S. for reasons unrelated to the marijuana industry will generally be admissible to the U.S.’ So that’s settled.
October 9, 2018: Public charge study; legal cannabis; green card lottery
In advance of the expected publication in tomorrow’s Federal Register of the Administration’s new proposed rule regarding aliens found ineligible for admission or lawful permanent resident status on the grounds that they are likely to become a ‘public charge,’ the Congressional Research Service released its own study entitled ‘Immigration: Frequently Asked Questions about “Public Charge.”’
Customs and Border Protection recently issued a statement to the effect that ‘working in or facilitating the proliferation of the legal marijuana industry in US states where it is deemed legal or Canada [which recently legalised marijuana] may affect admissibility to the US.’ No explanation was given as to why a person working in a legal industry in a foreign country would be rendered by that employment inadmissible to the US unless he was trying to ‘facilitate the proliferation’ of the marijuana industry in the US.
Persons interested in the Diversity Visa (the ‘green card lottery’) may wish to read a new report by the Pew Research Center and our updated seasonal article ‘Do You Feel Lucky? US Government Now Accepting Applications for the Green Card Lottery.’
October 2, 2018: Green card lottery; some rare good news
Tomorrow the annual application period for the green card lottery opens at 12 noon, Eastern Daylight Time.
Beleaguered foreigners in the US received some good news this past week—at least those did who are in the US on employment-based visas. The USCIS announced that although starting yesterday, the first day of the US Government’s fiscal year, they will begin carrying out their new policy on Notices to Appear (NTAs), the agency will not for the moment enforce this against the beneficiaries of employment-based petitions. That new policy, announced on June 28, states that where the USCIS issues a denial that is ‘status-impacting’ they may immediately issue an NTA, placing that person into immigration proceedings even before she knows that the petition or application has been denied. This represents a great change in emphasis for the USCIS, which was created as a benefits-granting agency, not one that carries out enforcement.
September 25, 2018: Dates for ‘green card lottery’ announced
In today’s Federal Register the US Department of State announced that the application period for the 2020 Diversity Immigrant Visa programme, better known as the ‘green card lottery,’ will open at noon Eastern Daylight Time on Wednesday, 3 October, and close at noon Eastern Standard Time on Tuesday, 6 November. Further details and instructions on how to apply should be available shortly on the Department’s DV web page.
September 11, 2018: A pause in the service
Your correspondent is travelling. Please check in next week for the latest news in the ever-changing world of US immigration.
September 4, 2018: One sentence; PPS fee going up
A story in yesterday’s New York Times did the best job yet of encapsulating the dire state of US business-related immigration in a single sentence: ‘The Trump administration is using the country’s vast and nearly opaque immigration bureaucracy to constrict the flow of foreign workers into the United States by throwing up new roadblocks to limit legal arrivals.’ See ‘Companies Say Trump is Hurting Business by Limiting Legal Immigration.’
As of 1 October the US Citizenship and Immigration Services is raising the fee for Premium Processing Service to US $1410. In the agency’s news release the Chief Financial Officer stated that the increase ‘will allow us to continue making necessary investments in staff and technology to administer various immigration benefit requests more effectively and efficiently.’ In America, anything is possible.
August 28, 2018: Expansion of the ‘I’ visa
In a welcome development the Department of State last week clarified and expanded through extensive amendments to its Foreign Affairs Manual the reach of the ‘I’ visa, making it for the first time explicitly available to bloggers. In addition, ‘foreign media’ is now defined, with the addition of a requirement that the organization have ‘a home office in a foreign country.’
August 21, 2018: A pause in the service
Your correspondent is travelling. She wishes you a very happy Bank Holiday weekend and hopes that you will check back next Tuesday for your Weekly Update.
August 14, 2018: Do as I say, not as my wife does
As was widely reported, last week Melania Trump’s parents naturalised as US citizens. They had been sponsored for permanent residence (‘green card’ status), a prerequisite for naturalisation, by their daughter. The current president has derided family sponsorship as ‘chain migration’ and wants to see it eliminated.
August 7, 2018: More expatriates
On August 1 the Department of the Treasury published its list of those persons who gave up either US citizenship or long-term permanent residence in the calendar quarter that ended on June 30. The number this quarter was 1086. This is very much in line with other recent quarterly lists, such as the one from May (1012).
July 31, 2018: Website down; no NTAs for the moment
For nearly two weeks it has been impossible to file a US immigrant visa application on the dedicated website (https://ceac.state.gov/iv). This is a worldwide problem, not restricted to visa applications through any particular area of the world. The State Department claims that the outage is caused by maintenance and that they are ‘working to restore access as soon as possible.’
In a rare bit of good news for foreigners in the United States the US Citizenship and Immigration Services announced yesterday that it would be delaying implementation of a new policy that would have seen the USCIS issuing Notices to Appear on many people to whom it had just denied immigration benefits. The new policy, announced on July 5, would have immediately put into immigration proceedings, through issuance of the Notice to Appear, any person who was through the denial of a petition or application rendered ‘unlawfully present’ in the US. Fortunately the various subparts of USCIS were not able to produce the needed operational guidance within the 30 days given by the announcement of the new policy, thereby making delay necessary.
July 24, 2018: Naturalised citizens at risk; passports and taxes
The US Government has recently begun to pursue more vigorously those persons it believes have obtained US citizenship by fraudulent or otherwise wrongful means. One of the primary grounds for revocation of citizenship (‘denaturalization’) is the concealment of evidence or the misrepresentation of a fact that is material to the decision to grant citizenship. This does not sound particularly threatening until one looks at the naturalization application and sees such questions as ‘Have you EVER committed, assisted in committing, or attempted to commit, a crime or offense for which you were NOT arrested?’
According to the Wall Street Journal there are 362,000 Americans who have overdue tax debts who will soon be denied new or renewed passports on that basis. Enforcement, which requires cooperation between the Internal Revenue Service and the Department of State, started in January 2018 and by the end of June more than 220 people had paid tax debts of $11.5 million to hold on to their passports. A further 1,400 have signed instalment plans. Persons at risk of having their passport applications denied are those who owe a tax debt of over $51,000, adjusted for inflation.
July 17, 2018: Small mistakes, big penalties
The USCIS gave us all a nasty Friday the 13th surprise in the form of a new policy memorandum. Policy memos are administrative materials issued to guide USCIS adjudicators in their duties and do not adhere to the public consultation requirements demanded for a formal regulation. Effective September 11, 2018 the range of cases which USCIS adjudicators may deny out of hand, without issuing a Request for Evidence (RFE) or a Notice of Intent to Deny (NOID), will be greatly extended. In fact, the USCIS adjudicator may deny a case solely because a required document was not included. Take for example an I-130 petition filed by a US citizen to sponsor a foreign spouse. Currently the USCIS is taking over six months to adjudicate these cases. Under current procedures if the petitioner forgot to include a copy of the couple’s marriage certificate—whether through ignorance, or carelessness or inadequate English skills—the USCIS would send an RFE asking for the certificate. Under the new rule the USCIS could take six months before looking at the case and then deny it outright because a needed document was not included. At that point the couple have likely spent six months apart and spent US$535 for a filing fee, and gotten nothing but a denial for their troubles. The imposition of harsh penalties upon such small errors in a minefield of complex immigration procedures is just the most recent of many anti-immigrant, anti-foreigner actions taken by the Trump Administration’s Department of Homeland Security.
July 10, 2018: Little VOICE
The current president of the United States has repeatedly claimed that unauthorised aliens in the US are a source of high levels of crime, especially violent crime. As a result of one of his first Executive Orders US Immigration and Customs Enforcement, an agency of the Department of Homeland Security, established the Victims Of Immigration Crime Engagement (VOICE) Office to deal with persons affected by crimes ‘committed by individuals with a nexus to immigration. VOICE’s first report has now been issued, showing that during its first not-quite six months of operation it received a total of 4,602 telephone calls. Of that number 127 were from self-identified victims of crime.
July 3, 2018: Muslim travel ban upheld
The Supreme Court’s decision on June 26 in Trump v. Hawaii held that the Constitution as well as a number of federal statutes prohibiting national origin discrimination in visa issuance do not block the President from barring the entry to the US of aliens if that entry ‘would be detrimental to the interests of the United States.’ The Court held that numerous statements by the President and his advisers denouncing Muslims were not relevant to determining the legality of the ban on entries by citizens of predominantly Muslim countries. The decision in this case provides what one legal scholar calls ‘a detailed roadmap for the return of racial origin quotas’ in immigration to the United States.
June 26, 2018: A pause in the service
Your correspondent is travelling. Please check in next week for the latest news in the ever-changing world of US immigration.
June 19, 2018: How low can they go?
Just when you think it might be safe to read the newspapers again….Last Thursday the US Attorney General, Jefferson Beauregard Sessions III, stated that the current policy of separating families that attempt to enter the US unlawfully—the parents go to jail and the children into care—has been undertaken deliberately to discourage such entry. In the last six weeks nearly 2,000 children have been taken from their parents, with hundreds of children held in warehouses and abandoned buildings. Significant outcry has erupted across the political spectrum, with that well- known rabble-rouser Laura Bush saying that the policy ‘is cruel. It is immoral. And it breaks my heart.’
Doctors warn of the long-term and perhaps irreversible damage caused to children who are traumatically separated from their parents. Three medical organizations in the United States—the American Academy of Pediatrics, the American College of Physicians, and the American Psychiatric Association—that represent over 250,000 doctors, have urged the Government to cease its practice of criminally charging all adults who enter without inspection. Homeland Security has countered in Orwellian fashion with what they call a ‘Fact Sheet’ on the issue.
June 12, 2018: Asylum rules tightened
Yesterday Attorney General Sessions overruled the Board of Immigration Appeals and in the case of Matter of A—B-- has made it clear that only in ‘exceptional circumstances’ will victims of private criminal violence qualify for asylum. Asylum applicants must show that ‘the government protection from such harm in their home country is so lacking that their persecutors’ actions can be attributed to the government.’
June 5, 2018: Immigrant visa medicals; important month
The cost in London for the medical examination required as part of the immigrant visa application process was increased on June 1 to £330 for adults and £140 for children.
CNN has declared that May 2018 was the month that ‘reshaped the US immigration landscape.’ One of the events that CNN cites is the termination of Temporary Protected Status for Hondurans; in today’s Federal Register the Department of Homeland Security has published the formal notice of that termination.
May 29, 2018: International entrepreneur parole program to be scrapped
The Department of Homeland Security has followed through on its earlier pledge (see our Weekly Update from December 19, 2017) to do away with the international entrepreneur parole program. In today’s Federal Register DHS published a notice of its intention to remove the establishing regulations. According to DHS ‘this program is not the appropriate vehicle for attracting and retaining international entrepreneurs and does not adequately protect US investors and US workers employed by or seeking employment with the start-up.’
May 22, 2018: Will Prince Harry’s children be Americans?
As many British citizens know to their cost, American citizenship is conferred by operation of law regardless of the wishes of the parents. A child who is born in the United States while her parents are students at a US university or working in the country temporarily will, with very few exceptions, be an American citizen. Similarly, if a child is born outside the US to an American citizen parent the child will be a US citizen if the statutory requirements are met, even if neither parent wants this to happen. Under current law a child born outside the US into a marriage between a US citizen and a non-citizen will be a US citizen if before the child’s birth the US citizen parent (either mother or father) was physically present in the United States for at least five years, two of them after the US citizen parent’s 14th birthday. (For more on the intricacies of US citizenship transmission see our website article US Citizenship—Having It, Getting It, Giving it Up.) The new Duchess of Sussex fulfils the physical presence requirements so in the normal course of things, unless she renounces her US citizenship before the birth of a child, the royal child will be a US citizen at least until the child is old enough to effectively renounce his or her own citizenship. Or will there be a special deal for royalty? Stay tuned.
May 15, 2018: News for F, J and M visa holders; incorrect green cards
Starting August 9, 2018 the rules for accruing unlawful physical presence will change for F, J and M visa holders. Among other changes persons on these visas will no longer be protected by their admission ‘for duration of status’ (D/S) and will start accruing unlawful presence when, for example, they stop attending their course or training programme.
Approximately 8500 former conditional permanent residents, who received permanent residence due to marriage to a US citizen, were issued between February and April 2018 with incorrect permanent resident cards (‘green cards’). The error is apparently in the notation on the card as to when the person became a permanent resident. USCIS is contacting the people concerned and will reissue corrected cards.
May 8, 2018: Expatriates; Central Americans
Today’s Federal Register includes the latest quarterly list from the IRS of people who have chosen to give up either US citizenship or long-term lawful permanent resident status. This list, covering the first quarter of 2018, contains the names of 1012 people.
The Secretary of Homeland Security has announced that the 20 years of Temporary Protected Status for Honduran citizens will end on January 5, 2020. For more about how Central American immigrants are back in the US news see our latest blog post, ‘The Caravan.’
May 1, 2018: Secure deliveries; international students
The USCIS is now beginning a new more secure method for delivering to applicants sensitive documents such as green cards, employment authorisation documents (EADs, or ‘work permits’) and ‘Travel Booklets.’ We assume that ‘Travel Booklets’ includes re-entry permits, which are issued in little books that resemble a passport. This method will also allow applicants to track their packages and to arrange a time to collect the package from the post office or USCIS if delivery is difficult or inconvenient.
The Student and Exchange Visitor Program of Immigration and Customs Enforcement has just released its biannual report on international students in the United States. From 2017 to 2018 there was a slight decrease (0.5%) in the number of foreign students enrolling in US educational institutions, but an increase of 4.0% in the number of such students pursuing doctoral degrees. Enrolments from Saudi and South Korean students are down, with the biggest increases being from South America, particularly Brazil.
April 24, 2018: Indian citizens and the H-1B
Over the last few years Indian citizens (largely in the IT industries) have received a particularly large percentage of the available H-1B visas for professionals. Although the spousal visa (H-4) does not permit employment there are work permits available for H-4 spouses when the H-1B and family have been approved for immigrant status and are simply awaiting their priority date. (This can take over 10 years.) Unfortunately that Obama Administration regulation approving work permits in these circumstances will likely be rescinded, after a chance for public comment, by a rule change scheduled to be proposed and published in the Federal Register by the end of June. The New York Times has reported on some of the Indian H-4 wives campaigning to retain their work permits in ‘Thousands of Indian Women Find their American Dream in Jeopardy.’
April 17, 2018: H-1B lottery finished
The annual lottery that determines which H-1B petitions will be adjudicated this year was conducted last Wednesday, April 11. From the 190,098 petitions that arrived at the USCIS during the first five working days of April the agency has chosen enough, by their calculations, to result in the maximum number of new H-1Bs the law makes available. What a crazy way to run the world’s largest economy.
April 10, 2018: Another H-1B filing period starts and ends
On Friday April 6 the USCIS announced that it had received more than enough petitions for H-1B classification during the first five working days of April to meet both the standard 65,000 and the 20,000 advanced degree annual quotas, or ‘caps.’ This was the sixth consecutive year that the caps were more than met during the initial filing period. A computerized lottery will be held by the USCIS in the coming days to select those petitions that will be adjudicated. Premium Processing Service (PPS), whereby for a payment of $1225 one is guaranteed a response to one’s petition within 15 calendar days—a response that can be either an approval or a request for additional evidence—has been suspended for cap-subject petitions. The USCIS states that PPS will likely be available again in September.
April 3, 2018: Big Brother wants to know
The Department of State is proposing to begin asking all visa applicants, immigrant and nonimmigrant, a number of new questions ‘for identity resolution and vetting purposes.’ Applicants will be asked for the identifiers they have used across a number of enumerated social media platforms over the five years before visa application; five years’ worth of previous telephone numbers and email accounts; whether they have ever been deported or removed from any country; and whether their spouses or parents have been involved in terrorism. On May 29, at the expiry of the required 60 day period of public comment, the new forms will go to the Office of Management and Budget for approval.
March 27, 2018: US expels Russian diplomats
Yesterday the US expelled 60 Russian diplomats in response to the Skripal nerve agent attack here in Britain. The Russian consulate in Seattle was also closed down. When the inevitable reciprocal gesture by the Russians occurs the wait for a US visa interview in Moscow will likely be even longer than the current 250 days for a visitor’s visa. Similar waits are in store for applicants at the consulates in Yekaterinburg and St Petersburg, but those willing to apply in Vladivostok will be seen in ‘only’ 90 days.
March 20, 2018: Understatement
The Office of Inspector General, Homeland Security, has issued a report entitled ‘USCIS Has Unclear Website Information and Unrealistic Time Goals for Adjudicating Green Card Applications.’ This report will give some comfort to applicants wondering why their applications are taking six months or longer to adjudicate, when the USCIS’ announced goal is 120 days. One of the OIG’s suggestions is to change the goal, which it now finds unrealistic. It would have been more comfort if the OIG had been able to come up with some way to speed up the process.
March 13, 2018: Enormous backlog in processing of work permits
On February 27, 2018 the US Citizenship and Immigration Services (USCIS) held a stakeholder conference call on issues surrounding Employment Authorization Documents (EADs, or ‘work permits’). The USCIS reported that it currently has an ‘inventory’ of 625,000 applications for EADs, which are filed on Form I-765s. Of that number fully 394,000 are currently under active consideration. Those applicants waiting hopefully for their EADs may or may not be cheered to hear that 24% of the applications have been pending for over 180 days.
March 6, 2018: Global Entry interviews in London
From tomorrow through May 3, 2018, the US Embassy in London is hosting a Global Entry enrollment event, run by US Customs and Border Protection, for CBP officers to interview Global Entry applicants. Global Entry, a Trusted Traveler Program which allows for expedited clearance of pre-approved, low-risk travellers, was opened to UK citizens in July 2016. After being vetted by the UK Home Office and applying through the Global Online Enrollment System website, conditionally-approved Global Entry applicants can now register to attend the required CBP interview at the US Embassy in London, by appointment only.
February 27, 2018: USCIS mission statement
The United States Citizenship and Immigration Services has updated its mission statement for the first time since 2005. The mission statement previously read: “USCIS secures America’s promise as a nation of immigrants by providing accurate and useful information to our customers, granting immigration and citizenship benefits, promoting an awareness and understanding of citizenship, and ensuring the integrity of our immigration system.” It now reads: “US Citizenship and Immigration Services administers the nation’s lawful immigration system, safeguarding its integrity and promise by efficiently and fairly adjudicating requests for immigration benefits while protecting Americans, securing the homeland and honoring our values.” The exclusion of the phrase “nation of immigrants” has received much comment in the press, but the entire revision shows a significant shift in immigration policy by switching its focus from its “customers” (typically non-US citizens) to the “Americans” it is protecting.
February 20, 2018: A pause in the service
Your correspondent is travelling. Please check back next Tuesday for a resumption of Weekly Update.
February 13, 2018: Latest quarter’s expatriates; CBP statistics for electronics searches
The Internal Revenue Service has published its quarterly list of people who chose to renounce their US citizenship or long-term permanent resident (‘green card’) status during the fourth quarter of 2017. The list identifies 685 individuals, bringing the 2017 total to 5,132.
During fiscal year 2017, Customs and Border Protection searched the electronic devices of 30,200 arriving or departing international travellers. That number equals only 0.007 percent of the approximately 397 million foreign travellers who arrived in the US in that time period, but it does reveal a continuing upward trend in the number of these searches as compared to previous years. During fiscal year 2016, 19,051 international travellers had their electronic devices searched by CBP. An updated Directive on Border Searches of Electronic Devices was released by CBP in January.
February 6, 2018: Immigration in the State of the Union
In delivering his State of the Union speech last week, President Trump expressed his intentions to fix the ‘broken’ US immigration system, particularly by restricting ‘chain migration,’ which incited criticism from numerous sources. The American Immigration Council discusses how this negative trend continues to be worrying.
January 30, 2018: New US Embassy; updates to US federal policy regarding cannabis
Now that the new US Embassy has been open for a few weeks, you may want to check out the video the Embassy has posted about current visa appointment procedures.
Due to recent changes in US law and policy, we have updated our website article Cannabis Legal in the US? Not for Immigration Purposes.
January 23, 2018: New poverty guidelines; US immigration difficulties
The Department of Health and Human Services has released new poverty guidelines applicable to all I-864 Affidavits of Support filed on or after March 1, 2018. The Department of Homeland Security typically issues a new I-864P incorporating the changes shortly before March 1. For additional information about the Affidavit of Support process, please see our website articles A Beginner’s Guide to the Affidavit of Support and I-864 Affidavits of Support: The Problem of ‘Domicile’.
It is no secret that President Trump’s views are affecting US immigration policies (see our previous Weekly Updates about his Executive Orders and Presidential Proclamations) even though the law and regulations have yet to be changed. A recent article in the Toronto Star discusses how even people from wealthy, friendly countries like Canada are finding it more difficult to get into the US under the current administration.
January 16, 2018: New filing procedures for L petitions
USCIS has announced that starting February 12, 2018, petitioners whose primary office is located in the Vermont Service Center’s jurisdiction will no longer file L petitions at the Vermont Service Center but instead directly with the Texas Service Center. The California Service Center will continue adjudicating L petitions within its jurisdiction as usual. USCIS may reject petitions filed incorrectly from March 12, 2018 onwards.
January 9, 2018: New US Embassy, London; Temporary Protected Status
The new US Embassy in London will be open to the public next week, starting January 16, 2018. More information about the new building including photographs can be found in articles in The Daily Mail and The Guardian and on the Embassy’s Facebook page. The new address is as follows:
Embassy of the United States of America
33 Nine Elms Lane
London SW11 7US
Homeland Security announced yesterday that on September 9, 2019 it will terminate Temporary Protected Status (TPS) for citizens of El Salvador. In so doing DHS pointed out that the reason for the most recent designation, in 2001, of Salvadorans as eligible for TPS—an earthquake—no longer justified maintaining immigration benefits for those persons. This overlooks the fact that the original reason for special treatment for citizens of El Salvador, the political violence in the country, has continued and intensified since Salvadorans were first granted TPS in 1990.
TPS was established in the Immigration Act of 1990, which created a program allowing the Attorney General to designate nationals of certain countries suffering political or environmental difficulties to remain in the US for intervals of 18 months. The countries whose citizens are eligible for TPS are, in addition to El Salvador, Haiti, Honduras, Nepal, Nicaragua, Somalia, Sudan, South Sudan, Syria and Yemen. Notice was previously given for termination of the TPS designation for Haiti, to take effect in July 2019. Additional information regarding TPS can be found on the USCIS TPS web page.
January 2, 2018: Nothing to report
As we have no news from the US immigration world to report, ‘Weekly Update’ will resume on January 9. Please check back with us then.
December 19, 2017: Update for entrepreneurs, G&M festive season hours
Further to our Weekly Update of December 5, the US Citizenship and Immigration Services (USCIS) has published instructions and a form for applying for international entrepreneur parole, requiring a total fee of $1,285. However, in the same announcement, the Department of Homeland Security (DHS) warns that it is in the final stages of preparing a rule that would revoke the Obama administration’s International Entrepreneur Rule, which created such parole. The stated reason is that DHS believes the rule to be inconsistent with President Trump’s Executive Order for Border Security and Immigration Enforcement Improvements.
Our office will close for the holidays from 4:30pm on Friday, December 22 and will reopen at 9:00am on Tuesday, January 2. During this time we will continue to answer urgent client emails. Other requests will be dealt with as soon as reasonably possible. “Weekly Update” will resume on January 9, so please check back with us then. We wish our readers a happy and healthy festive season.
December 12, 2017: Immigration enforcement; Embassy holiday closures
The Department of Homeland Security has published border security and enforcement data from the Customs and Border Protection (CBP) for Fiscal Year 2017, which includes the last four months of the Obama administration and the first eight months of the Trump administration. The report shows that FY2017 had “the lowest level of illegal cross-border migration on record, as measured by apprehensions along the border and inadmissible encounters at US ports of entry.” The report also gives information regarding CBP’s personnel, use of force, wall progress, narcotics seizures and gang arrests. While evaluating the statistics, CBP cites changes made due to its implementation of President Trump’s January 25 Executive Order: Border Security and Immigration Enforcement Improvements.
Please be aware that the US Embassy in London will be closed over the holiday period on December 25 and 26, 2017 as well as January 1, 2018.
December 5, 2017: Renewed opportunity for entrepreneurs
The US district court of the District of Columbia has issued an opinion in National Venture Capital Association v. Duke, vacating the delay of the International Entrepreneur Rule’s start date (originally set as July 17, 2017), finding that the Department of Homeland Security violated the Administrative Procedure Act's notice and comment requirements. This means that DHS must now begin accepting and adjudicating parole applications of foreign entrepreneurs who seek to grow their companies in the US. See our Weekly Updates of July 11 and January 17 for more information.
November 28, 2017: Visa restrictions in effect
Further to our Weekly Updates of September 26 and October 24, the Ninth Circuit Court of Appeals has granted, in part, the government’s emergency motion for a stay of the US District Court of Hawaii’s preliminary injunction of the Presidential Proclamation of September 24, 2017. This court order of November 13 means that nationals of Chad, Iran, Libya, Somalia, Syria and Yemen are now being held to the visa restrictions and limitations set out in the proclamation unless they have a credible claim to a bona fide relationship with a person or entity in the US. More information is provided in the Department of State’s announcement.
November 21, 2017: Thanksgiving closure
The US Embassy in London will be closed this Thursday for the US holiday Thanksgiving, so keep that in mind if you are waiting for a visa to be issued.
November 14, 2017: SSN application part of EAD application
The USCIS and the Social Security Administration have worked together to reduce to a single step the application process for certain foreign nationals to obtain both an employment authorization document (EAD) and a Social Security Number (SSN). The latest edition of Form I-765 is used for this purpose. Applicants should receive their Social Security cards approximately two weeks after receiving their EADs.
November 7, 2017: US visas in Turkey; latest quarter’s expatriations
Further to our Weekly Update of October 10, 2017, limited nonimmigrant visa services have now resumed at the US Embassy in Ankara and the US Consulate General in Istanbul. Applicants should check the website for answers to frequently asked questions regarding the temporary cancellation of visa appointments and for updated security instructions.
The Internal Revenue Service has published its quarterly list of people who chose to renounce their US citizenship or long-term permanent resident (‘green card’) status during the third quarter of 2017. The list identifies 1,376 individuals.
October 31, 2017: More naturalizations
An article in the New York Times discusses a recent increase in the number of lawful permanent residents, i.e. green card holders, choosing to go through the naturalization process to become US citizens. Because green card holders must follow correct procedures to maintain their status, may be deported for certain offences and cannot vote in US elections, obtaining citizenship is the best way to secure one’s permanent place in the US. This upsurge appears to be in response to the shifting immigration policies in the US as set out in President Trump’s executive orders and presidential proclamations.
October 24, 2017: Visa/travel ban news; USCIS policy for extension petitions
Parts of President Trump’s latest immigration/travel ban have again been halted by the courts. As posted on the Department of State’s website, the ruling of the US District Court of Hawaii means that visa applicants who are nationals of Chad, Iran, Libya, Syria, Yemen, and Somalia will not be subject to any of the restrictions or limitations set out in the Presidential Proclamation of September 24, 2017. However, nationals of North Korea and Venezuela are now subject to the restrictions and limitations listed in the proclamation because the court’s finding did not address those sections.
Yesterday, USCIS issued a policy memorandum rescinding its previous policy which required its officers to defer to past approvals when adjudicating petitions for extensions of nonimmigrant status, particularly L-1B specialized knowledge status. The new policy will mean that in extension petitions the parties will need to prove up every aspect of eligibility, even those (such as corporate relationships) that had been adjudicated in the previous petition. The USCIS announcement shows that this is related to President Trump’s Executive Order 13788 entitled ‘Buy American Hire American.’
October 17, 2017: Green card lottery disaster; changes to I-129 filing addresses
Further to our Weekly Update of September 19, the Department of State has announced that the FY2019 Diversity Visa ‘green card lottery’ which began accepting entries on October 3, 2017 has now been closed due to a technical issue. A new entry period will begin on Wednesday, October 18, 2017 and will end on Wednesday, November 22, 2017 at 12:00 noon, Eastern (US) Time. If you applied between October 3 and October 10, you should disregard any confirmation number or other correspondence you received and submit a new entry between October 18 and November 22. Your new entry will not be deemed an impermissible duplicate entry.
On October 12, 2017, USCIS made two changes to the direct filing addresses for Form I-129, as follows. USCIS may reject Forms I-129 that are filed at incorrect service centers from November 11, 2017.
- Petitioners will now file Form I-129 according to the state where the company or organization’s primary office is located, not according to the location where the beneficiary will be employed or trained.
- Petitioners located in Florida, Georgia, North Carolina and Texas will now file Form I-129 at the California Service Center instead of the Vermont Service Center.
October 10, 2017: Visa troubles between the US and Turkey; USCIS statistics
On Sunday October 8 the US diplomatic mission in Turkey took the extraordinary step of suspending all nonimmigrant visa services in that country. The stated reason was the recent arrest of Turkish employees of the US mission to Turkey and a resulting fear that the Turkish government was not committed to the safety and security of the US diplomatic posts. The Republic of Turkey responded with a ban of its own, on all visa issuance at its embassy and consulates in the United States and on all issuance of visas to US citizens including e-visas. It is important to note that there is no ban on Turkish citizens travelling to the US; Turks holding valid visas will continue to be able to use them.
To add to the data released about L-1B petitions last week, you can find a list of all L petitions approved during Fiscal Year 2016 broken down by petitioning employer on the USCIS website. Additionally, USCIS has published statistics regarding all petitions and applications received (6,609,133) and approved (5,122,681) during the first three quarters of Fiscal Year 2017.
October 3, 2017: L-1B statistics
The US Citizenship and Immigration Services has published data on the number of L-1B petitions filed, approved and denied in Fiscal Years 2015 through the second quarter of 2017. The denial rate has stayed consistent at about 25 percent following the all-time high of 35 percent in FY 2014, but it continues to be dishearteningly high when compared to the 6 percent denial rate in FY 2006 (see the National Foundation for American Policy’s report). We will need to wait to see how President Trump’s April 18 Executive Order 13788 entitled ‘Buy American Hire American’ affects these adjudications.
September 26, 2017: New visa restrictions by Presidential Proclamation
President Trump issued a Presidential Proclamation regarding immigration on September 24, 2017 affecting nationals of Iran, Libya, Somalia, Syria, Yemen, Chad and North Korea and a small number of nationals from Venezuela. For more information about the new restrictions, see the Department of State’s announcement. You may wish to also refer to the summary by Marty Lederman, a Georgetown law school professor. In light of this new proclamation, the Supreme Court has removed Trump v. Hawaii from the oral argument calendar and ordered the parties to brief whether the case has now been rendered moot.
September 19, 2017: Diversity visa green card; million dollar green card
The application period for the FY2019 Diversity Visa ‘green card lottery’ will open on Tuesday, October 3, 2017 and will end on Tuesday, November 7, 2017 at 12:00 noon, Eastern (US) Time. Eligibility requirements remain the same as last year. Applicants should read the instructions provided and may wish to watch the Department of State’s video tutorial. They should also heed the Fraud Warnings on the Department of State website, ensuring to check their application’s status online through the DV Entrant Status Check. From May 1, 2018, applicants will be able to find out if their entry has been selected in the DV program. For some additional information about the DV lottery, you may wish to look at our article Do You Feel Lucky? US Government Now Accepting Applications for the Green Card Lottery.
A recent Bloomberg article discusses a different route to obtain immigrant status in the US, the EB-5 program, and how rich people, primarily Chinese nationals, and their agents use the program. Also known as ‘alien entrepreneur,’ ‘immigrant investor’ or ‘million-dollar green card,’ the program is often criticized for being too vulnerable to fraud and for not actually benefiting the targeted geographical areas as intended. See our Weekly Update of May 17, 2016 for more information.
September 12, 2017: The end of DACA
As announced in Attorney General Jeff Sessions’ statement to the Justice Department last week, President Trump has rescinded DACA, the ‘Deferred Action for Childhood Arrivals’ programme which was created by President Obama in 2012 to benefit young undocumented immigrants, now with almost 800,000 participants. Beginning as early as March 6, 2018, participants whose DACA status expires will be subject to deportation, no longer allowed to work legally and prevented from returning to the US after travelling abroad. The six months’ leeway is supposed to give Congress time to pass a replacement before the DACA protections end, but in order for President Trump to support new legislation, it would reportedly need to fit his immigration aims to strengthen the border, protect American jobs and enhance enforcement. Although not surprising news (see our blog post of November 15, 2016), the end of DACA marks another significant (and, in many eyes, disheartening) change to the US immigration system.
September 5, 2017: US entry emergencies
In today’s Federal Register, the Department of Homeland Security and the Department of State have published parallel final rules regarding waivers of the requirements for visas and passports in cases of emergency for nonimmigrants seeking admission to the US. The rules will come into effect on October 5, 2017. Airlines may still be fined for allowing people without the required documents to board flights to the US even if they are eventually granted waivers for entry.
August 29, 2017: USCIS interviews
The US Citizenship and Immigration Services (USCIS) has announced that as of October 1, 2017, in-person interviews will be required for all employment-based applicants for lawful permanent resident (LPR) status as part of the adjustment of status process. Currently, interviews for employment-based adjustment applicants are almost always waived, so it is likely that requiring these interviews will lengthen the adjudication process for these applications, which already takes anywhere from 6 to 26 months depending on the USCIS service center. USCIS will also begin conducting interviews for all applicants for LPR status who are petitioning to join relatives who are refugees or asylees in the US. This change in USCIS policy is another example of the government’s response to President Trump’s March 6th Executive Order and concurrent memorandum on immigration.
August 22, 2017: Proposed new questions for visa applicants
Further to our March 28th Weekly Update, there has been more activity in response to President Trump’s memorandum signed concurrently with his March 6th Executive Order on immigration. In the August 3rd Federal Register, the Department of State published for public comment proposed information that could be required of visa applicants worldwide. The new requirements would expand on the information already requested in the DS-160 visa application form, requiring more details of travel history, address history, employment history, family information and social media activity. The proposal is open for public comment until October 2, 2017.
August 15, 2017: ‘Buy American Hire American’ in visa policy
On August 9, the Department of State updated its guidance to consular officers in the Foreign Affairs Manual to reflect the April 18 presidential Executive Order 13788 entitled ‘Buy American Hire American.’ When adjudicating applications for E-1, E-2, H-1B, L, O and P visas, consular officers are now instructed to keep in mind the need to protect the interests of US workers, including through the prevention of fraud or abuse. It would therefore not be surprising if we soon see even greater scrutiny of these applications. Further information about how USCIS is working to implement ‘Buy American Hire American’ can be found on its website.
August 8, 2017: Proposed immigration changes; new US ambassador to the UK
Last week, President Trump supported the proposed Reforming American Immigration for a Strong Economy Act (RAISE Act), introduced by Senators Tom Cotton and David Perdue. The RAISE Act would replace the United States’ current immigration system with one, similar to those used in Canada and Australia, based on points awarded for criteria such as education, English-speaking level, high-paying job offers, age, record of achievement and entrepreneurial initiative. It is said the number of legal immigrants would be cut in half under the new system as it would decrease ‘low-skilled’ immigration and limit family sponsorship to only spouses and minor children of US citizens and legal permanent residents (LPRs), eliminating sponsorship for other relatives (including siblings and adult children) and offering only a renewable temporary visa for parents who need caretaking. With the exception of the new ‘W’ visa for the dependent parents of US citizens or LPRs, this bill would not make any changes in the current system for temporary, nonimmigrant visas.
Woody Johnson, the owner of the New York Jets, a professional American football team, has been named the new US ambassador to the United Kingdom after being confirmed by the Senate
August 1, 2017: Visa issuance numbers; definition of ‘close familial relationship’ for visa applications
The US Department of State (DOS) now publishes statistics on their website to show how many nonimmigrant visas are issued monthly, by applicant nationality and by post. You can find the latest numbers for nonimmigrant visas issued by the US Embassy in London on page 57 of the June chart.
On July 14th, DOS updated its description of how it enforces President Trump’s Executive Order on immigration, now taking into consideration the July 13th ruling of a US District Court in Hawaii to define the phrase ‘close familial relationship’ as used in the Supreme Court’s June 26th decision regarding the implementation of the Executive Order. Previously, a close familial relationship was defined under US government guidance as a ‘parent (including parent-in-law), spouse, fiancé, child, adult son or daughter, son-in-law, daughter-in-law, sibling, whether whole or half, and including step relationships.’ The District Court’s ruling added to the definition ‘grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts and uncles, nephews and nieces, and cousins.’ The visa appointment scheduling website has posted a reminder to nationals of Iran, Libya, Somalia, Sudan, Syria and Yemen to review the DOS website before proceeding with a visa application.
July 25, 2017: A pause in the service
Your correspondent is travelling. Please check back next Tuesday for a resumption of Weekly Update.
July 18, 2017: No rest for the wicked, but retirement for the honourable.
In a major blow to the demon-possessed, the Eighth Circuit Court of Appeals has decided that a Nigerian citizen allegedly suffering from demonic forces did not qualify for asylum. The Court upheld findings below to the effect that the statutory requirement of ‘persecution’ does not include harms inflicted by supernatural forces or beings, pointing out that the claimant had not identified any way for the Nigerian government to protect against supernatural forces or suggest how the US government might be better equipped to do so. In any event, ‘supernatural beings and their agents are theoretically capable of targeting an asylum applicant wherever he goes, including the United States.’ The ruling applies throughout the Circuit Court’s jurisdiction, which covers the states of Arkansas, Iowa, Minnesota, Missouri, Nebraska and North and South Dakota.
Today Weekly Update gives a shout-out to John Gaylord, former Elementary School principal at the American Community School in Amman, Jordan, who is today celebrating his first post-retirement birthday. Happy birthday, John!
July 11, 2017: Saying ‘no’ to foreign entrepreneurs; the Wall and the owl
The Department of Homeland Security has delayed until March 14, 2018 the effective date of the rule that would have created the entrepreneur parole programme. (For details of that programme see our Weekly Update of January 17.) Under the final rule as published during the last days of the previous administration foreign entrepreneurs would have been able, beginning July 17, to apply for permission to stay in the US for up to 30 months in order to run their new businesses. Today’s Federal Register announcement states that DHS will be taking public comment on its plan to revoke the rule entirely.
During the 2016 presidential election campaign Candidate Trump promised to build a 'beautiful, southern border wall' between the US and Mexico, to deter would-be unauthorized immigrants. This plan may be thwarted by an owl—to be exact, a cactus ferruginous pygmy owl. The Center for Biological Diversity, a non-profit organisation based in Tucson, Arizona, has filed a lawsuit to block the construction on the grounds that a comprehensive environmental impact statement is required. Such a statement was prepared in 2001 to assess the impact of a limited border fence construction but, the lawsuit alleges, the size of the proposed new wall means that the potential impact on endangered species such as the pygmy owl must be assessed once again.
July 4, 2017: Independence Day naturalizations; travel ban update
Happy Fourth of July to our American readers and to the nearly 15,000 people who over the holiday weekend will become US citizens in more than 65 Independence Day-themed naturalization ceremonies taking place throughout the US. During their naturalization interviews, the applicants would have been required to answer correctly at least six out of ten questions from the 100 possible civics questions about important US history and government topics. Download the mobile app USCIS: Civics Test Study Tools to see if you would pass the test!
Further to our previous Weekly Update, the US Department of State has posted information about enforcing President Trump’s Executive Order on immigration in compliance with last week’s Supreme Court decision. Visa appointments already scheduled for nationals of the six countries affected by the EO (Iran, Libya, Somalia, Sudan, Syria, and Yemen) will not be cancelled, but consular officers will determine at the interview if an applicant is exempt from the travel ban based on having a bona fide relationship with a person or entity in the US.
June 27, 2017: New I-485; Trump’s travel ban news
USCIS has released a new 18-page version of Form I-485 Application to Register Permanent Residence or Adjust Status and its supplements A and J. The new I-485 now requests additional biographic information so that a separate Form G-325A is no longer required when filing an I-485. USCIS will accept only the new edition of the form and its supplements from August 25, 2017.
Yesterday, the US Supreme Court decided to grant certiorari (to accept for hearing) the ‘travel ban’ case regarding the Executive Order signed by President Trump on March 6th. This means that, for the next 90 days, the US Government may now bar US entry to citizens of Iran, Libya, Somalia, Sudan, Syria and Yemen if they ‘lack any bona fide relationship with a person or entity in the United States.’ In its decision, the Court gave several examples of the types of people who would not be subject to the bar, such as a person going to the US to visit family, to take up employment, give a lecture or attend university.
June 20, 2017: Departure date check
US Customs and Border Protection (CBP) has updated the website where travelers can download their most recent I-94 Arrival/Departure Record and a list of their US entries and exits during the last five years. A new feature called the “Traveler Compliance Check” allows certain travelers to check the status of their admission in the US and see how many days they have left before they must leave or how many days they have already remained past their period of authorised stay. Travelers who have potentially overstayed in the US may also receive an email notification from CBP. CBP has posted FAQs about this new Traveler Compliance Check.
June 13, 2017: Medical updates; changes in transmitting US citizenship
The US Embassy in London has updated its online instructions for immigrant visa applicants’ medical examinations with its panel physicians, Knightsbridge Doctors. However, the website has neglected to list the physicians’ new requirement of a Patient Summary from the applicant’s GP, so it is advisable to address to Knightsbridge Doctors directly any specific questions about preparing for the medical examination. On June 1, 2017, the medical fee increased by £10; it is now £300 for applicants aged 15 years and over and £130 for applicants aged 14 and under.
Yesterday in Sessions v Morales-Santana, the Supreme Court of the United States struck down as impermissible gender discrimination a provision of US immigration law that made it easier for US-citizen unwed mothers to transmit citizenship to their children than for US-citizen unwed fathers. (See our article US Citizenship—Having It, Getting It, Giving it Up for more information.) The decision was 8-0, the case having been argued in November 2016 before Justice Gorsuch joined the Court. In contrast, a suit challenging that same section of the law had been upheld on a 4-4 vote almost exactly six years earlier—on June 13, 2011. For a discussion of that case, Flores-Villar v United States, see our archived Weekly Update of June 21, 2011. Check out our latest blog post for further details of the outcome of Sessions v Morales-Santana.
June 6, 2017: Security update in London; Camp Fury with CBP
Following the attacks at London Bridge and Borough Market on June 3, the US Embassy in London has published a security alert to remind US citizens and nationals in the UK of safety procedures and emergency contacts, including registering with the Smart Traveler Enrollment Program (STEP) to receive safety condition updates and enable the US Embassy to contact or locate them in an emergency.
Customs and Border Protection (CBP) officers of the Tucson Sector Border Patrol recently hosted a unique adventure and career exploration experience called Camp Fury, sponsored by the Girl Scouts of Southern Arizona. The participants, 34 girls, learned about law enforcement tactics, crime scene analysis, evidence collection and physical fitness as they took part in fire and police activities.
May 30, 2017: Nonimmigrants and guns
The Arizona Daily Star has reported on an effort by the Department of Homeland Security to get guns out of the hands of foreign students who fraudulently obtain ‘resident’ hunting licenses that then allow them (unlike most nonimmigrant visa holders) to legally buy guns in the US. So far, guns thus obtained have been seized from at least eight Chinese students at the University of Arizona. The article points out that the federal law that prohibits gun ownership by nonimmigrant visa holders has an exception for persons owning ‘resident’ hunting licenses. The students’ offense was to claim resident status in Arizona when, under the terms of their student visas, they must maintain a residence outside the US to which they intend to return.
May 23, 2017: Overstay statistics
The Department of Homeland Security has published a press release and 50-page report about the people who remained in the US past the date on which they should have departed during fiscal year 2016. The report analyses the number of overstays based on a visitor’s US immigration classification status at entry and his/her country of citizenship. The overall rate of overstays was approximately 1.47%, but it was only 0.60% for Visa Waiver Program entries.
May 16, 2017: Latest quarter’s renunciations; new green cards and EADs
The Internal Revenue Service has published its quarterly list of people who chose to renounce their US citizenship or long-term permanent resident (‘green card’) status during the first quarter of 2017. The list identifies 1,313 individuals.
For people who are interested in gaining (rather than giving up) lawful permanent residence, USCIS has redesigned the look of green cards as well as employment authorization documents. Examples of the new cards can be seen here on Twitter. The redesign is meant to make the cards more secure and tamper-resistant.
May 9, 2017: EB-5 controversy
The appropriations measure signed by President Trump on May 5, 2017 contained a provision that will extend the EB-5 Immigrant Investor Program until September 30, 2017. Although the program is controversial for many reasons, including its susceptibility to fraud (see our Weekly Update of May 17, 2016), the bill makes no changes to the program. A New York Times article calls into question a conflict of interest between the president’s continuation of the EB-5 program and his son-in-law Jared Kushner’s work finding Chinese investors for the family’s construction projects.
May 2, 2017: Embassy performances
The Department of State has updated one of the sections of its Foreign Affairs Manual regarding O-1 visa applications. 9 FAM 402.13-5(B) now reminds consular officers that they should not require applicants to perform at the consular interview as a method to verify their qualifications for an O-1 visa as an alien of extraordinary ability (for example, in the arts). Such a request for a performance would be justified only as part of an anti-fraud investigation. One can only wonder how many performances were being requested across all US consulates and embassies prior to this FAM update.
April 25, 2017: CBP statistics
During the first half of fiscal year 2017, Customs and Border Protection searched the electronic devices of 14,993 arriving international travellers. That number equals only 0.008 percent of the approximately 189.6 million foreign travellers who arrived in the US in that time period, but it does reveal a continuing upward trend in the number of these searches as compared to previous years. During the first half of fiscal year 2016, only 8,383 international travellers had their electronic devices searched by CBP upon entry.
April 18, 2017: ESTA mistake; H-1B lottery
As reported in The Guardian, the Embassy in London recently required an in-person interview with a three-month-old infant whose ESTA application was denied. (His grandfather had mistakenly answered “yes” to the question “Do you seek to engage in or have you ever engaged in terrorist activities, espionage, sabotage, or genocide?” on the baby’s application.) Prospective travellers to the US: Take care when completing an ESTA application for yourself or for others! More information about travelling to the US on the Visa Waiver Program can be found in our article Travelling to the US Without a Visa.
During the five-day filing period at the beginning of April, USCIS received 199,000 H-1B petitions for the statutory cap of 65,000 and the advanced degree exemption of 20,000 for fiscal year 2018. A lottery was performed on April 11, 2017 to select enough petitions for adjudication to meet the caps. USCIS will reject and return all unselected petitions with their filing fees to petitioners.
April 11, 2017: H-1B cap reached
The USCIS announced last Friday, April 7, that in the first five working days of April it received a sufficient number of H-1B petitions to reach the statutory cap and the advanced degree exemption for fiscal year 2018. As a result, the USCIS will perform a lottery to randomly select petitions for adjudication. It will no longer accept H-1B petitions subject to the FY2018 cap, but it will continue to accept and process petitions that are exempt from the cap.
April 4, 2017: H-1B update
As we have previously discussed, USCIS is now accepting H-1B petitions for the fiscal year 2018 cap. The ordered chaos of the petition deliveries to USCIS’s service centers is described in a New York Times article. Considering some uncertainty in the future of the H-1B program, there may be even more petitions filed this year than previously. USCIS announced on April 3, 2017 that additional procedures will be implemented to deter and detect H-1B visa fraud and abuse, and it released a memorandum on March 31, 2017 setting out some changes in adjudication policies, most notably that an entry-level computer programmer position would not generally qualify as being a position in a specialty occupation.
March 28, 2017: Enhanced visa application screening
The Department of State has issued a cable to all consular posts providing guidance on heightening the screening and vetting of visa applications in response to a memorandum President Trump signed concurrently with his March 6th Executive Order on immigration. It reminds consular officers that ‘all visa decisions are national security decisions’ and, among other enhancements, calls for a mandatory social media check for any visa applicant who has ever been
in ISIS-controlled territory. Furthermore, posts are advised to schedule no more than 120 visa interviews per consular adjudicator per day even if this increases wait times for appointments.
March 21, 2017: H-1B news
Starting April 3, 2017, the USCIS will be accepting H-1B petitions subject to the fiscal year 2018 cap. If, as expected, more petitions are filed during the first five business days than can be accommodated under the annual quota of approximately 65,000, a lottery will be conducted among the petitions received to determine which petitions will be adjudicated. (An additional 20,000 H-1Bs are available to individuals with a US master’s degree or higher.) USCIS has also announced that it will temporarily suspend premium processing for all H-1B petitions for up to six months after the April 3rd filing start date, but petitioners may submit a request to expedite an H-1B petition if they meet one of the Expedite Criteria.
Further to our Weekly Updates of June 7, 2016 and September 27, 2016, the federal district court in Oregon last week granted summary judgment in favour of the USCIS—that is, judgment without a trial—in a case where the plaintiffs had claimed that the USCIS had no authority to use a lottery to decide which H-1B petitions would be accepted for adjudication. The plaintiffs had wanted the USCIS to set up a queue so that H-1B petitions would be adjudicated on a first-come first-served basis, with excess petitions getting a priority date for later processing. A copy of the decision in the case (Walker Macy LLC v USCIS) as well as copies of all materials filed in federal court cases can be viewed on the US federal court system’s website at https://www.pacer.gov/login.html (registration required).
March 14, 2017: New Executive Order conflict; bill introduced for H-1B and L-1 reform
President Trump’s Executive Order, with effective date of March 16, has met with a response similar to that received by his previous immigration-related EO. Multiple states, including Hawaii, Washington, California, Maryland, Massachusetts, New York and Oregon, are in efforts to block this EO’s travel ban like the last one. As announced on the Department of State’s visa scheduling website, nationals of the six countries affected by the EO (Iran, Libya, Somalia, Sudan, Syria and Yemen) should review the provided information before scheduling a visa appointment.
Senator Charles Grassley of Iowa has renewed his efforts to see the government clamp down on certain visa programs that he believes allow foreign workers to displace US citizens from their jobs. His proposed H-1B and L-1 Visa Reform Act of 2017 would make changes including the elimination of employment experience in a speciality field being equivalent to holding a degree in a specialty field, a reduction in the maximum length of authorized H-1B status from six to three years (with exceptions), and the introduction of a prevailing wage requirement for L-1 petitions.
March 7, 2017: New Executive Order
The latest immigration-related Executive Order was signed by President Trump yesterday, March 6, and will become effective on March 16. At that point the previous EO of January 27, 2017 will be formally revoked. The new EO is directed at citizens of Iran, Libya, Somalia, Sudan, Syria and Yemen and prohibits them from entering the US during the 90 days after March 16. At the end of that period there will then be a re-evaluation based upon information that the EO requires the Secretaries of State and Homeland Security, and the Director of National Intelligence, to provide to the President.
There are several important exceptions to the travel ban, including persons who obtained their currently valid US visas before January 27; lawful permanent residents (green card holders); and dual nationals who are travelling on a passport of another non-listed country. Waivers are also theoretically available on a case-by-case basis.
February 28, 2017: New immigration restrictions coming?
The new Executive Order ‘travel ban,’ which would take the place of the one declared unconstitutional by several US courts, has not yet materialised. It is rumoured to be forthcoming on Wednesday. A draft memorandum from the Department of Homeland Security however states that citizenship is a poor predictor of who will engage in terrorism in the United States and that very few people from the seven countries covered by the previous travel ban had been involved in domestic terrorism.
February 21, 2017: CBP seizures
Besides needing to enforce (and then stop enforcing) President Trump’s January 27th Executive Order, US Customs and Border Protection has been quite busy lately. On January 29th, CBP Agriculture Specialists at Washington Dulles International Airport searched the suitcases of two women from Mongolia, finding 42 pounds of horsemeat and other ruminant meat concealed inside juice boxes, including 13 pounds of horse genitals (supposedly to be used for medicinal purposes) and three liters of yak milk. The food products were seized and destroyed. On February 10th, CBP Border Patrol agents found and dismantled a catapult system attached to the south side of the border fence near Douglas, Arizona. The catapult was being used to launch bundles of marijuana (cannabis) over the fence into the US, so the agents searched the area and seized more than 47 pounds of the drug. On CBP’s website, you can learn more about what the agency accomplishes in ‘A Typical Day.’
February 14, 2017: Trump’s travel ban news; latest quarter’s renunciations
On February 9th, the Ninth Circuit Court of Appeals denied the emergency motion for a stay of the temporary restraining order (TRO) on President Trump’s travel ban, stating, ‘We hold that the Government has not shown a likelihood of success on the merits of its appeal, nor has it shown that failure to enter a stay would cause irreparable injury.’ One of the Ninth Circuit judges has asked for all the Circuit judges to vote on whether the decision upholding the travel ban TRO should be considered en banc—that is, by all the Ninth Circuit judges, not just the three who made the decision. Briefs must be submitted by the parties by February 16th.
The Internal Revenue Service has published its quarterly list of people who chose to renounce their US citizenship or long-term permanent resident (‘green card’) status during the quarter ended December 31, 2016. The list includes the names of 2,364 individuals, among them London’s former mayor Boris Johnson whose intention to expatriate and US tax issues have been lengthily discussed (see our Weekly Updates of November 25, 2014 and February 17, 2015). Not only is this the most expatriates in any one quarter, but the total number for 2016—5,409—is a new all-time high, exceeding the previous annual record by more than 25 percent.
February 7, 2017: Executive Order update; new poverty guidelines
Since our last Weekly Update, the impact of President Trump’s January 27th Executive Order (EO) has gone through many permutations. Currently, as announced on the Department of State’s website and the Customs and Border Protection’s website, the US government is barred from enforcing certain provisions of the EO, including those related to the visa and travel ban, due to the temporary restraining order (TRO) granted by a US District court in Seattle, Washington on February 3rd. All documents filed in the case can be found here on the website of the US Court for the Ninth Circuit. Accordingly, the Department of Homeland Security has suspended any and all actions implementing the affected sections of the EO and has resumed its previous standard procedure for the inspection of travelers. The provisional revocation of valid visas of nationals of Syria, Iraq, Iran, Libya, Somalia, Sudan, and Yemen has also been lifted. Today at 3:00pm PDT, you may wish to tune in to the live-streamed oral argument on the administration’s motion for stay of the Seattle court’s TRO.
DHS has released new poverty guidelines applicable to all I-864 Affidavits of Support filed on or after March 1, 2017. For additional information about the Affidavit of Support process please see our website articles A Beginner’s Guide to the Affidavit of Support and I-864 Affidavits of Support: The Problem of ‘Domicile’.
January 31, 2017: Trump’s immigration disorder; new website article
After one week in office, President Trump signed the hotly contested Executive Order: Protecting the Nation from Foreign Terrorist Entry into the United States which, among other actions, indefinitely suspended the admission of any Syrian refugees and, for 90 days, barred US entry and visa issuance to people from seven countries: Iraq, Syria, Iran, Sudan, Libya, Somalia and Yemen. As widely reported in the press, the order caused confusion and chaos in US and foreign airports and incited widespread protests. Even US green card holders from those seven countries were being detained, but a Department of Homeland Security statement on Sunday formally declared that the executive order did not apply to lawful permanent residents. As announced on the visa scheduling website, nationals (and dual-nationals) of those seven countries should cancel their previously booked visa appointments and should not reschedule until further notice.
For up-to-date information on the confusing state of cannabis as an immigration issue, see our new article Cannabis Legal in the US? Not for Immigration Purposes.
January 24, 2017: US-UK immigration post-Brexit and post-Trump
Since President Donald Trump’s inauguration on January 20, we wait to see what changes will be made to US immigration policy by the new administration. A possible bright spot might be found, according to an article in The Guardian, if this week’s trade discussions between Prime Minister Theresa May and President Trump lead to easier immigration solutions for US citizens to work in the UK and for UK citizens to work in the US. However, the Prime Minister has previously pledged to decrease the net annual figure of non-EU migrants to the UK from 335,000 to below 100,000, so Americans may need to get in line/join the queue.
January 17, 2017: New opportunity for entrepreneurs
The Department of Homeland Security has issued a final rule, effective 17 July, that would give foreign entrepreneurs with at least 10% ownership in start-up companies with good prospects the permission (parole) to stay in the US for up to 30 months, with extension possible of another 30 months. In order to apply, the individual would need to show evidence that an investment of at least $250,000 has gone into the company and that the company has significant potential for rapid growth and job creation. A new form, I-941 Application for Entrepreneur Parole, requiring a filing fee of $1,200 plus an $85 fee for biometrics, will be created for this purpose. This is good progress for entrepreneurs whose visa options have been quite limited (see our website article Promising Progress for Immigrant Entrepreneurs and Start-ups); however, this opportunity could be short-lived as the new administration could immediately rescind the rule.
January 10, 2017: Official end of NSEERS
By notice published and effective on December 23, 2016, the Department of Homeland Security has revoked the regulations that established the National Security Entry-Exit Registration System (NSEERS) in 2002. NSEERS required nationals and citizens of designated countries to comply with special registration requirements, appear at immigration offices in the United States to give additional information when requested and to both enter and leave the US only through specified ports of entry. On April 28, 2011, the DHS Secretary stated that special registration was no longer necessary and that restrictions imposed upon the nationals and citizens of the 25 included countries would be abolished. Although no one has been subject to NSEERS since then, the programme framework itself had continued to exist. It is presumed that this new action was taken so that if the incoming administration wishes to restart NSEERS, it will need to follow the entire regulatory procedure to establish it from scratch, which would include the rule-drafting process allowing for public comment.