In recent months, processing delays by U.S. Citizenship and Immigration Services (USCIS) and the U.S. Department of State (DOS) and changes in U.S. Immigration policies have had profound effects on foreign national students and professionals.
The Impact of the USCIS Unlawful Presence Policy on Students (F, M visas) and Exchange Visitors (J visas). In August 2018, USCIS drastically altered its policy on the calculation of unlawful presence for F (student) and M (vocational student) visa holders, and J exchange visitors. Those in F, M and J status are typically admitted for a period of authorized stay known as duration of status (D/S), rather than up to a specific date. Under previous longstanding policy, a violation of status (early termination of studies, unauthorized activities, etc.) did not render such individuals unlawfully present. The unlawful presence calculation only began after a formal determination by the government that the individual was out of status (if admitted in D/S). However, under this new USCIS policy, calculation of unlawful presence automatically begins the day after any violation or the day after completion of the course of study or program, including any authorized practical training and grace period. Those in F, J and M status should exercise caution to avoid all unlawful presence triggers and track all time where they failed to maintain lawful status. Failure to do so could subject these foreign nationals to the 3-year, 10-year, or permanent bars to re-entry.
The transformation of USCIS into an extension of the Immigration & Customs Enforcement (ICE) agency. Traditionally, USCIS has been the federal agency charged with the adjudication and granting of immigration benefits (citizenship, green cards, visas), while ICE is the agency that enforces immigration laws, including orders related to deportation. The functions of these two agencies have generally been kept separate based upon the premise that a foreign national should be able to apply for an immigration benefit without fear of being deported. However, through the release of a recent policy memo, the functions of USCIS now overlap with those of ICE such that the processing of a visa or citizenship application could result in the issuance of a Notice to Appear (NTA) for those foreign nationals who have failed to maintain legal status. An NTA is a charging document that compels a foreign national to appear in Court for removal proceedings.
USCIS Processing Delays. According to the January 2019 report by the American Immigration Lawyers Association (AILA), the average case processing time increased by 46% over the past two fiscal years (FY), and by 91% since FY 2014. Additionally, case processing times continued to increase in FY 2018, despite sizeable decreases in case receipt volume.
USCIS now accepting both Negative O & P Consultations. In September 2018, USCIS began accepting copies of unfavorable/negative consultation letters directly from labor unions for O.1 visas (individuals of extraordinary ability). On February 8, 2019, USCIS announced an extension of this practice to include P visas (artists, athletes, and entertainers). Consultation letters are listed among the initial evidentiary requirements for P and O visas, failure to include such documentation could prolong processing or result in a case denial.
The Department of Homeland Security (DHS) announces Final Rule for H.1B Cap & Lottery Cases. On January 30, 2019, DHS published the final rule (effective April 1, 2019) to amend the process for selection of H-1B visa petitions subject to the annual numerical “cap”. Pursuant to this rule and in furtherance of the “Buy American and Hire American” Executive Order (April 2017), USCIS will first conduct the general lottery sufficient to meet the regular 65,000 annual cap, which will include individuals eligible for the advanced degree exemption. USCIS will then conduct a second lottery for the remaining eligible petitions, which will be limited only to those U.S. advanced degree holders seeking one of the 20,000 cap exemptions.
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