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Changes in U.S. Immigration Policies & Delays in Adjudication
 
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By: Shaune D. Fraser, Esq.

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.

Key points:

  1. 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.

  2. 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.

  3. 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.

  4. 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.

  5. 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.

For more Information, please contact me at shaune@fraserpllc.com

The information provided herein is for information purposes only. It is not intended as legal advice for any particular situation nor presumed as indefinitely up to date.

Copyright © 2019, FRASER IMMIGRATION LAW, PLLC. All Rights Reserved.

 
Is the O.1A Visa the best option for Business and Tech Professionals?
 
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15 January 2019 / US Immigration /Blog / Series: O.1 

 

By: Shaune D. Fraser, Esq.

 

For tech, business, and corporate professionals, and even some F.1 students and J.1 exchange visitors, the O.1A classification has emerged as an increasingly popular visa category in lieu of the H.1B. 

Each year, hundreds of thousands of foreign nationals are immersed in the burdensome process of obtaining a U.S. employment visa. Due to the sheer volume of H.1B applications, these professionals often encounter employment and travel-related issues during this season. In 2018, the congressionally mandated limit of 85,000 H.1B visas (65,000 cap-subject & 20,000 advanced degree exemption) was reached within 5 business days.[1]

Later this year, in August, USCIS announced an extension of its suspension of the premium processing program for all FY 2020 H.1B cap-subject applicants and expanded it to include additional petitions.[2] The USCIS premium processing service allows employers to pay an additional $1,410 filing fee for expedited processing within 15 calendar days and has traditionally included H.1B petitions.

To further complicate this situation, USCIS has reinterpreted the definition of an H.1B “specialty occupation” to exclude positions that were approved in years past.[3] As a result, U.S. employers have received significant increases in requests for evidence (RFEs), adding further complexity, expense, and uncertainty to this onerous process.[4]

Unlike the H.1B visa, the O.1A classification has no annual numeral limitation/cap and there is no visa lottery.[5] This 3-year employment visa is reserved for individuals who possess extraordinary ability in the sciences, education, business, or athletics.[6] Per the regulations, “extraordinary ability” is exhibited through a showing of sustained national or international acclaim and a demonstrated record of achievement.[7]

Contrary to popular belief, this visa is available to tech, business, and corporate professionals who possess special skills in their area of expertise (not just Nobel Prize laureates or Oscar winners, et. al.). Talented professionals in these fields can establish eligibility through the submission of documentation that fulfills at least three (3) of the below-listed O.1A criteria:

  • Employment in a critical or essential capacity;

  • Original scientific, scholarly, or business-related contributions;

  • Published material about you in professional or major trade publications, or other major media;

  • Membership in associations;

  • Authorship of scholarly articles in the field, in professional journals, or other major media;

  • High salary or other remuneration;

  • Participation as an official judge/reviewer of the work of others; and

  • Receipt of a national or international award.[8]

Moreover, the USCIS premium processing program remains available to O.1A applicants, allowing for approvals to be secured very quickly (within 15 days) once the requisite documentation is obtained.[9] 

Despite the restrictive effects of the Buy American and Hire American (BAHA) Executive Order and associated policies on immigration categories such as the H.1B,[10] the O.1A visa remains a viable option for tech, business, and corporate professionals, and could be the best employment-based immigration option for qualifying foreign nationals.

 

For more information on the O.1A category or any other immigration options, please contact me at shaune@fraserpllc.com.

The information provided herein is for information purposes only. It is not intended as legal advice for any particular situation nor presumed as indefinitely up to date.

­­­Copyright © 2019, FRASER IMMIGRATION LAW, PLLC. All Rights Reserved.  


 
 

[1] Press Release, U.S. Citizenship and Immigration Services, USCIS Reaches FY 2019 H-1B Cap (Apr. 6, 2018), https://www.uscis.gov/news/alerts/uscis-reaches-fy-2019-h-1b-cap.

[2] Press Release, U.S. Citizenship and Immigration Services, USCIS Extends and Expands Suspension of Premium Processing for H-1B Petitions to Reduce Delays (Aug. 28, 2018), https://www.uscis.gov/news/uscis-extends-and-expands-suspension-premium-processing-h-1b-petitions-reduce-delays.  

[3] American Immigration Council, Challenging USCIS “Not a Specialty Occupation” H-1B Petition Denial (October 16, 2018), https://www.americanimmigrationcouncil.org/litigation/challenging-uscis-not-specialty-occupation-h-1b-petition-denial

[4]  National Foundation for American Policy (NFAP), H-1B Visas By The Numbers: 2017-2018 (April 2018), https://nfap.com/wp-content/uploads/2018/04/H-1B-Visas-By-The-Number-FY-2017.NFAP-Policy-Brief.April-2018.pdf 

[5] U.S. Citizenship and Immigration Services (USCIS) Office of Business Liaison, Employer Information Bulletin 15, “Aliens with Extraordinary Ability (O-1) and Accompanying/Assisting Aliens (O-2)” (Dec. 8, 2004), 82 Interpreter Releases 180-84 (Jan. 17, 2005); Legacy INS, J. Bednarz (Sept. 29, 1992), 69 Interpreter Releases 1471-72 (Nov. 16. 1992).

[6] 8 C.F.R. §214.2(o)(3)(iii).

[7] Id.

[8] 8 C.F.R. §214.2(o)(3)(iii)(B).

[9] U.S. Citizenship and Immigration Services, O-1 Visa: Individuals of Extraordinary Ability or Achievement, https://www.uscis.gov/working-united-states/temporary-workers/o-1-visa-individuals-extraordinary-ability-or-achievement.

[10] See Exec. Order No. 13788: Buy American and Hire American, 82 Fed. Reg. 18837, 18839 (April 18, 2017).