What's New in the World of Immigration?

02/20/2019 - Slow Immigration Processing Times Draw Criticism and Questions

The National Law Review

Immigration case processing times have dramatically increased in the last few years, impacting U.S. businesses and immigrant families, often causing gaps in work authorization and even loss of employment. In a January 2019 Policy Brief, AILA (American Immigration Lawyers Association) opined, on the basis of USCIS data, that the Agency’s processing delays had reached “crisis levels under the Trump Administration,” noting that:

"[t]hese ballooning delays leave families—including families with U.S. citizen spouses and children in financial distress, expose protection-seekers to potential harm by bad actors, and threaten the viability of American companies facing workforce gaps."

The 2018 Homeland Security Report stated that at the end of FY 2017 (including President Trump’s first 9 months in office), there was a net backlog of 2.3 million cases – double the figure from FY 2016. And Congress is taking notice. More than 80 Democratic members of the House of Representatives, in their oversight capacity, sent a letter to USCIS Director L. Francis Cissna expressing their “grave concerns” about the delays. Indeed, the Congressmen are suggesting that the delays themselves seem to be a policy goal, stating:

Clearly, policy changes implemented by the administration in 2017 and 2018 have increasingly shifted the agency away from its service-oriented mission. Rather than continuing to seek ways to simplify and streamline its benefit-delivery system, USCIS now appears more focused on erecting barriers to the benefits it administers, including by significantly delaying adjudications.

The Representatives want the backlogs to be reduced and have asked Director Cissna to answer a number of questions, including:

- How are “extreme vetting,” in-person interviews for employment-based green cards, and the USCIS reversal of the deference policy regarding nonimmigrant visa extensions contributing to the backlog?

- Why, when USCIS clearly needs more adjudicators, is the Agency requesting the transfer of $200 million of its own fee revenue over to ICE enforcement?

- Why have processing times increased while case volume appears to be receding?

The backlog may be yet another reflection of Director Cissna’s new mission statement, issued in February 2018, echoing President Trump’s emphasis on enforcement. In that statement, the Director removed the emphasis on customer satisfaction (i.e., the satisfaction of petitioners and beneficiaries) and instead focused on serving the American people and making sure that benefits are not provided to those who do not qualify or those who “would do us harm . . . .”

11/23/2018 - USCIS to End Self-Scheduled Infopass Appointments

In yet another move to eliminate services available to paying customers, USCIS has announced that is will eliminate self-scheduled INFOPASS appointments by the end of 2019. INFOPASS is an in-person meeting with a USCIS personnel that is available to Applicants who have gone through the legal process and paid for immigration benefits such as work permits, travel permits, adjustment of status and citizenship. These appointments are vital in cases where USCIS error creates a delay in the processing or receipt of a necessary document, as often online resources are inadequate and requests through the National Customer Service Center are followed by notorious delays and inaction.

Below is the official announcement from USCIS, which ironically comes under the pretense of "modernization":

WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) will expand its Information Services Modernization

Program to key field offices, beginning with the Detroit Field Office and the five offices in the Los Angeles District on Nov. 13. Field offices in the Newark, Great Lakes, and San Francisco districts will implement the program during the first quarter of fiscal year (FY) 2019. USCIS anticipates expanding the program to all remaining field offices by the end of FY 2019.

The Information Services Modernization Program ends self-scheduling of InfoPass appointments and instead encourages applicants to use USCIS online information resources to view general how-to information and check case statuses through the USCIS Contact Center. Recent improvements to online tools provide applicants the ability to obtain their case status and other immigration information without having to visit a local field office.

11/19/2018 - An End in Sight: No More I-131 Denials after International Travel

This past year, USCIS initiated a confusing and controversial policy of denying pending I-131 Applications due to "abandonment" when the applicant traveled internationally. This was the case even for applicants who had other valid means of reentering the USA, such as a current I-131 travel document or valid visa.

Thankfully, USCIS has vouched to end this practice, a move we have all been eagerly anticipating.

The American Immigration Lawyers Association (AILA), a national association of Immigration Attorneys who have been fighting to end this and other disturbing USCIS policies, provides the below update:

AILA Doc. No. 17081867 | Dated November 19, 2018

On November 16, 2018, during the Office of the Citizenship and Immigration Services (CIS) Ombudsman Annual Conference, USCIS Director L. Francis Cissna spoke briefly on the USCIS policy to deny pending Forms I-131, Application for Travel Document when an applicant travels overseas. Based on feedback from the CIS Ombudsman and other stakeholders, Director Cissna indicated that USCIS will end the practice of denying pending I-131 applications when an applicant travels overseas. Though he did not provide a timeline for this change, he indicated that policy on this would be forthcoming.

AILA submitted comments to USCIS on October 15, 2018, requesting, among other things, that USCIS remove language from the Form I-131 instructions that considers an application for advance parole document abandoned if the applicant departs the U.S. before the document is issued, or at a minimum, that USCIS restore a prior policy exempting applicants who travel on valid nonimmigrant visas or approved advance parole travel documents from the abandonment policy. It is unclear whether USCIS will alter its policy yet again, or simply restore its prior policy. AILA will continue to provide updates on this development.

09/26/2018 - USCIS to Begin Implementing New Policy Memorandum on Notices to Appear

USCIS ANNOUNCEMENT 09/26/2018

U.S. Citizenship and Immigration Services (USCIS) will begin implementing the June 28 Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens Policy Memorandum (PM) (PDF, 140 KB) on Oct. 1, 2018. USCIS will take an incremental approach to implement this memo.

An NTA is a document that instructs an individual to appear before an immigration judge. This is the first step in starting removal proceedings. Starting Oct. 1, 2018, USCIS may issue NTAs on denied status impacting applications, including but not limited to, Form I-485, Application to Register Permanent Residence or Adjust Status, and Form I-539, Application to Extend/Change Nonimmigrant Status.

USCIS will send denial letters for status-impacting applications that ensures benefit seekers are provided adequate notice when an application for a benefit is denied. If applicants are no longer in a period of authorized stay, and do not depart the United States, USCIS may issue an NTA. USCIS will provide details on how applicants can review information regarding their period of authorized stay, check travel compliance, or validate departure from the United States.

The June 2018 NTA Policy Memo will not be implemented with respect to employment-based petitions and humanitarian applications and petitions at this time. Existing guidance for these case types will remain in effect.

USCIS will continue to prioritize cases of individuals with criminal records, fraud, or national security concerns. There has been no change to the current processes for issuing NTAs on these case types, and USCIS will continue to use its discretion in issuing NTAs for these cases.

USCIS is holding a public teleconference on Thursday, Sept. 27 from 2 - 3 p.m. Eastern to provide an overview of the PM and respond to pre-submitted questions. The teleconference will conclude with a question and answer session, as time permits.

07/18/2018 - Foreign Workers Face Higher Hurdles in Visa Applications

Bloomberg By Emily McCormick July 18, 2018, 3:38 PM EDT

For highly-skilled foreign workers applying for a new work visa or an extension, the stakes involved just got a whole lot higher.

The U.S. Citizenship and Immigration Services recently updated its guidance, taking a much stricter approach to approving applications that are largely filed by those seeking work in the tech industry.

Under the new policy, which goes into effect Sept. 11, agents will be able to deny applications deemed incomplete or containing errors, without first asking applicants to address the flaw or warning them of an intent to refuse their submission. Recently the agency also widened the range of cases for which it could begin the process of removing foreign nationals to include those whose immigration benefits, such as work status, have been denied.

The measures are likely to disproportionately affect those whose applications require large amounts of supporting evidence, said Sarah Pierce, a policy analyst with the Migration Policy Institute. Employees with H-1B visas -- mostly held by people in the technology, science and medicine industries -- are currently often asked to respond to a request for evidence from USCIS to prove whether they are qualified for their work, or whether their job is considered a specialty occupation, Pierce added.

The updates could make small errors on filings lead to harsh consequences -- including deportation -- and are part of "a broader trend of USCIS becoming more of an enforcement agency than an immigrants benefits agency," Pierce said. The USCIS in February updated its mission statement to remove reference to the U.S. as a "nation of immigrants" and instead included language on "protecting Americans" and "securing the homeland."

The recent move by USCIS "creates traps" for individuals already working legally in the country -- or seeking to work here -- by upping the consequences for clerical errors, said Todd Schulte, president of immigration reform lobbying group Fwd.us, which was founded by technology leaders including Facebook Inc. Chief Executive Officer Mark Zuckerberg and Dropbox Inc. CEO Drew Houston. And it could affect more than just tech companies, Schulte said. "Cracking down on legal immigration is simply this: It’s encouraging innovation and job growth to happen someplace else." Microsoft Corp. expanded its Vancouver office several years ago, in part due to Canada’s more lax visa regulations. The updated USCIS policies add a layer of instability for employers. “There’s a chance that not only is the case going to be denied, but also that the beneficiary could be placed in removal proceedings," said Hassan Ahmad, managing attorney with the HMA law firm. "How can you do business with this type of uncertainty?" USCIS spokesman Michael Bars said the policy changes are part of an effort to help "cut down on frivolous applications, reduce waste, and help ensure legitimate, law abiding petitioners aren’t undermined by those able to game our system." The number of requests for evidence to H-1B visa petitions rose 45 percent for the period of Jan.1 to Aug. 31, 2017 from the same period a year earlier, according to a report by Reuters. Given the volume of the requests, "it may seem like it would be a natural option" for USCIS officers to want to leverage the new policies to avoid issuing additional RFE’s, said Anastasia Tonello, president of the American Immigration Lawyers Association. But without the requests for evidence, applicants don’t have an opportunity to explain themselves if they make a mistake that could be as minor as writing their work address incorrectly on an application, she said.