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The USCIS has started conducting in-person interviews for all employment-based adjustment of status (AOS) applicants whose applications were filed on or after March 6, 2017. The AOS will not be approved until after a “successful” interview.

Although there is no formal guidance as yet, there have been some reports on what to expect.

The Process

  • After review, the USCIS Service Centers will send cases to the National Benefits Center (NBC).
  • The NBC will get the case file into an “interview ready state” and generate the interview notice based upon availability at the appropriate local office.
  • The expectation is that interview notices will be sent at least 30 days in advance of the appointment.
  • The case file will be transferred from the NBC to the appropriate local office for the interview.
  • The NBC will try to schedule interviews for family groups together.
  • All dependents will be interviewed, although there may be a waiver for children under 14 years of age.

The Questions

The USCIS announced that “[c]onducting in-person interviews will provide USCIS officers with the opportunity to verify the information provided in an individual’s application, to discover new information that may be relevant to the adjustment process, and to determine the credibility of the individual seeking permanent residence in the United States.” Applicants can expect to have their credibility tested by the Field Officer regarding any information in their filings including:

  • Work Experience
  • Current Job
  • Educational Background
  • Potential grounds of inadmissibility
  • Maintenance of status
  • Job portability
  • Bona fides of the relationships between any dependents and the principal beneficiary

The subject of the interview is the AOS. In most cases the employer’s underlying I-140 (Immigrant Worker Petition) will have been approved prior to the interview and is not being adjudicated through the interview. However, where work experience or other employment-related facts on which the I-140 was based are called into question, local offices may return the I-140 to the appropriate Service Center for review.

Each applicant, including dependents, will receive their own interview notices. The notices will contain lists of documents to bring to the interview. These notices at least initially will be boilerplate but applicants should expect to be asked to bring the originals of all relevant civil documents, letters and degrees submitted as copies with the filing. Dependents should plan to bring evidence of the bona fides of their relationship with the primary beneficiary. The above-listed issues will impel the production of different types of documentation depending on the circumstances of individual cases. We encourage clients to contact their Jackson Lewis immigration counsel for guidance on appropriate documentation for the interview.

Because of the additional interview workload, delays are expected especially in San Jose, San Francisco, Newark, New York, Houston, Seattle, Chicago, Dallas, Atlanta and Los Angeles. Since the required medical examinations are only valid for one year, applicants may want to consult with their attorneys as to when and where to submit their medical examinations. Depending upon the rules at the time of filing, submission of the medical exams in response to a later agency request or at the interview may be both possible and preferable.

Attorney representation has always been allowed at adjustment of status interviews. Jackson Lewis attorneys have substantial experience preparing applicants for these interviews. Because AOS applications are fact-specific, each application should be reviewed and judged individually by an attorney to identify issues that may need to be addressed at the interview. Once an interview notice is received, please reach out to your Jackson Lewis attorney for an assessment and advice on what to bring and how to prepare.

USCIS spokesperson Carter Langston confirmed that as of October 1, 2017, the employment-based green card process will include an in-person interview.

Formal interviews have been a possibility for employment-based permanent residency applicants. However, for the last 10 years, employment-based green card applicants generally had the interview waived. Historically, in-person interviews were a sign of trouble, indicating additional evidence was needed to be vetted at the interview. Langston reported that this is “part of a comprehensive strategy to further improve the detection and prevention of fraud and security risks to the United States.” He further clarified that conducting in-person interviews will provide officers the opportunity to verify the information provided in an individual’s application, to discover new information that may be relevant to the adjudication process, and to determine the credibility of the individual seeking permanent residence in the United States.

This increase in in-person interviews was part of President Donald Trump’s “extreme vetting” plan outlined his travel ban executive order.

Many employment-based green card applicants have already been in the U.S. for many years as non-immigrants, have been interviewed in-person for temporary visas at U.S. embassies or consulates abroad on numerous occasions, and have often been working for years for the same companies that ultimately have become their green card sponsors. Additionally, USCIS announced that family members of refugees or asylees will be required to have an in-person interview for provisional status. Reinstituting the interview requirements for employment-based applicants and adding requirements for refugees and asylees will amount to more than 100,000 additional applicants a year being interviewed at local USCIS offices. This undoubtedly will increase USCIS backlogs and lengthen the already years-long long process of obtaining a green card or entering as a refugee or asylee.

Jackson Lewis has experience and expertise in preparing clients for immigrant and non-immigrant interviews. If you have questions about the process, please let us know. We will continue to provide updates as more information becomes available about the new requirements.

USCIS is starting the year with a growing backlog of processing delays.

In May 2019, a bi-partisan group of Senators wrote to USCIS requesting information on why the service-oriented agency adjudicating immigration benefits, such as work authorization, is disrupting American businesses through administrative inefficiencies.

Here are some of the facts:

  • For FY 2018, the gross backlog at USCIS reached 5,591,839, representing a 69% increase since 2014 and a 29% increase since 2016;
  • Case completion per hour rates declined for 81% of benefit types between FY 2016 and FY 2018; and
  • Case completion rates for Form I-129 petitions dropped from 0.97 per hour to 0.64 per hour.

This translates into the following processing times (for non-premium processed cases) averaged across USCIS Service Centers as of September 30, 2019:

Nonimmigrant Visa Petition (I-129)                           3.7 months

Application for Advance Parole (initial)                   4.5 months

Application for Advance Parole (renewal)             10.3 months

Immigrant Visa Petition (I-140)                                  5.3 months

Employment-Based Adjustment (I-485)                 9.5 months

Extend/Change Nonimmigrant Status (I-539)       4 months

Employment Authorization (I-765)                            4.5 months

Naturalization (I-400)                                                     9.9 months

Waivers (excluding I-601A)                                          31.6 months

Some of the Administration’s new policies that have led to these increased processing times include the dramatic increase in Requests for Evidence (now at least 60% for H-1B cases alone), increased length and complexity of forms, increased security checks, and the I-485 in-person interview requirement for all employment-based petitions. If the new Public Charge rule goes into effect, it is expected to further increase processing times overall because of the complex calculations that will be required.

At the end of May 2019, the Government Accountability Office (GAO) agreed to analyze the USCIS backlog. At that time, the GAO said that it would take at least five months to gather a team to do this work. In the meantime, Jackson Lewis attorneys are available to assist you in creating strategies for dealing with the ongoing delays and backlogs.

A federal judge has sentenced Pradyumna Kumar Samal to more than seven years in prison, fined him $10,000, and ordered him to pay restitution for the taxes he stole. United States of America v. Samal, No. 2:18-cr-00214 (W.D. Wash. Sept. 20, 2019).

Samal, the ex-CEO of two IT staffing companies, was investigated for visa fraud by the Department of State and the Department of Homeland Security beginning in 2015. The evidence against his employment practices included emails, documents, and interviews with former and current employees and contractors. Samal fled the country during the investigation, and upon returning to the U.S. in 2018 he was arrested at an airport in Bellevue, Washington. Samal was charged with a multi-year visa-fraud that included a “bench-and-switch” scheme, exploitation of foreign national workers, and defrauding the U.S. government by submitting false and forged immigration application materials.

The fraud arose from petitions filed by Samal for close to 250 H-1B beneficiaries. The petitions stated that the foreign nationals would work at specific client sites and included forged documents from Samal’s clients (and some fictitious clients) supporting his assertions. The investigation showed that Samal was petitioning for employees he hoped to place with end clients, but he had no legitimate assignments for the beneficiaries when he filed the petitions. He was trying to eliminate “lag times” and gain a competitive advantage by having “H-1B beneficiaries” available for future assignments. Because he had no planned assignments for these foreign nationals, they often had to look for or wait for assignments after they arrived in the U.S. While they waited, Samal violated more immigration laws by not paying the foreign nationals – illegally “benching” them. Whether the foreign nationals eventually “found” work or not, they had to pay Samal a “partially-refundable ‘security deposit’ of as much as $5,000 for the visa filings” – yet another violation. Beyond the immigration violations, Samal also embezzled more than $1 million in withheld income that he never submitted to the government. Instead, he purchased luxury items and used the money for personal expenses.

Most IT consulting and staffing companies are engaged in legitimate immigration pursuits. For some time, USCIS has been focusing enforcement efforts on consulting companies that place their H-1B employees at client sites. This includes questioning whether computer programmers are performing in specialty occupations (and thus eligible for H-1B petitions) and demanding extensive documentation to prove that IT consultants are in bona fide employer-employee relationships with their H-1B petitioners.

Please contact a Jackson Lewis attorney with any questions about this case, the H-1B program, or USCIS.

 

 

The Department of State (DOS) has announced a significant retrogression from the July 2019 Visa Bulletin to the August 2019 Visa Bulletin of at least 3 years in many of the employment-based categories.

  • EB-1 retrogresses by almost 2 years for most countries to July 1, 2016, except India, which stays at January 1, 2015;
  • EB-2 retrogresses by almost 2 years from being current to January 1, 2017, for all other countries, while China and India advanced a bit to January 1, 2017, and May 2, 2009 respectively; and
  • EB-3 retrogresses by almost 3 years from being current to July 1, 2016, for all other countries, while India retrogressed by more than 3 years to January 1, 2006, and China advanced by 6 months to July 1, 2016.

USCIS has decided to implement the dates in the August bulletin now.

Individuals with pending adjustment of status applications can expect to continue in the process. Interviews will be scheduled, but cases will not be finally adjudicated until the priority dates become current again.

Charles Oppenheim, Chief of Visa Control and Reporting Division for the Department of State, generally predicted these retrogressions due to continuing increased demand. The hope is that the dates will return to the July 2019 level when the new fiscal year begins in October 2019.

Each month, to make its determinations for the Visa Bulletin, USCIS and DOS compare the number of visas available for the remainder of the fiscal year (ending September 30) with:

  • Documentarily qualified visa applicants reported by DOS;
  • Pending adjustment of status application reported by USCIS; and
  • Historical drop off rate (for example, denials, withdrawals, and abandonments).

DOS also publishes a “Date for Filing Applications” chart each month. The dates on these charts are more beneficial, but are used only if DOS and USCIS predict that the annual allocation of visas will not be used by the end of the fiscal year.  DOS announces each month (about a week after the Visa Bulletin is published) whether the Date for Filing chart can be used.  Although the Date for Filing charts have been used occasionally in the past, given the current circumstances, they likely will not be used before the end of this fiscal year.

If you have questions about how this retrogression affects green card strategies, please reach out to your Jackson Lewis attorney.

 

 

Long USCIS processing delays are now the norm for all types of immigration cases. Indeed, the delays have reached crisis levels. Processing times increased by 46% over the past two fiscal years and 91% since FY 2014.

In fact, even though applications declined by 17% in FY 2018, processing times continued to rise. In some cases, H-1B petitions can take up to a year for a decision. I-140 immigrant visa petitions that used to take about 3 months to process are now taking about 8 months. Naturalization cases used to process in 5 months, but now they are taking about 10 months.

These delays have important consequences. U.S. businesses are hurt when they cannot obtain work visas for necessary or key employees in a timely way. Foreign-national employees become disenchanted due to their inability to obtain LPR status and may leave the U.S. for better prospects. Families suffer economically when dependents cannot obtain work authorization. Vulnerable populations suffer when they cannot obtain protection under U.S. immigration laws.

Recent changes in immigration policies based upon the “Buy American, Hire American” executive order are contributing to the delays.

In a May 13, 2019, letter to the Director of USCIS questioning the delays, 36 members of Congress (representing both parties) pointed out that USCIS was created “to be a service-oriented, immigration service agency with the mission to adjudicate immigration matters to enable individuals to obtain work authorization, citizenship, humanitarian protection and other important services.” But the new mission statement issued by USCIS in early 2018 no longer emphasizes customer satisfaction but rather focuses on enforcement.

The May 13 letter is not the first time Congress has asked about the processing delays. The last letter on this subject sent to the Director earlier this year, however, came only from Democrats.

Along with Congress, the American Immigration Lawyers Association is working to hold USCIS accountable. If you have questions about adjudication delays, please reach out to your Jackson Lewis attorney.

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 . . . .”

In line with that mission, USCIS is planning on introducing a new Tip Form. The purpose of the new form is to facilitate the collection of information from the public regarding credible and relevant claims of immigration benefit fraud impacting both open adjudications, as well as previously approved benefit requests where the benefit remains valid. Once implemented, this form will create more work for an already overburdened agency and will likely lead to an increase in employer worksite investigations.

Although the ongoing government shutdown is rooted in an immigration matter – the “wall” – its effect on other immigration processes is somewhat limited. Fee-funded activities are not affected, which means that USCIS offices will remain open, interviews and appointments will continue as scheduled, and most petitions and applications will continue to be accepted and processed. Because the Department of Labor’s funding has already been appropriated, LCA and PERM cases will not be affected.

The most noticeable effect from a domestic immigration perspective may be that the E-Verify program will not be operational. During shutdown it will not be possible to:

  • Enroll in E-Verify;
  • Create an E-Verify case;
  • View or take action on any case;
  • Add, delete or edit any user account;
  • Reset passwords;
  • Edit company information;
  • Terminate accounts;
  • Run reports; or
  • Resolve E-Verify Tentative Nonconfirmations (TNCs).

To minimize the impact caused by the government shutdown:

  • The “three-day rule” will be suspended; and
  • Time period for resolving TNCs will be extended.

Employers are warned not to take any adverse action against employees while an E-Verify case remains in an interim or limbo status. Please click here for E-Verify’s full announcement regarding the shutdown.

Other programs that will not operate during the shutdown due to lack of continuing funding include:

  • EB-5 Immigrant Investor Regional Center Program
  • Conrad 30 J-1 Program for Physicians
  • Immigrant visas for Non-Minister Religious Workers

For now, it seems that passport services will remain available and U.S. Embassies and Consulates abroad will continue to provide services to U.S. citizens, but other services may be limited. Jackson Lewis will continue to follow these matters and provide updates as they become available.

As part of the Trump Administration’s “Buy American, Hire American” Executive Order, the State Department’s Bureau of Consular Affairs (BCA) is joining with the Department of Justice’s Civil Rights Division to combat both visa fraud and potential discrimination against U.S. workers. The partnership between the two agencies is based upon a Memorandum of Understanding (MOU) that focuses on information-sharing.

The Employee Rights Section (IER) of the Civil Rights Division enforces the anti-discrimination provisions of the Immigration and Nationality Act (INA) on citizenship or national origin discrimination in the hiring, firing, or recruiting of employees. Traditionally, this agency focused on discrimination against foreign-born workers, but the Trump Administration has shifted the focus to the impact of visas on the U.S. worker. The BCA, among other things, strengthens U.S. border security by reviewing and adjudicating immigrant and non-immigrant visa applications abroad.

Under the MOU, the agencies “will share information about employers that may be engaging in unlawful discrimination, committing fraud, or making other misrepresentations in their use of employment-based visas, such as H-1B, H-2A, and H-2B visas.” The MOU also says that, although injured parties can file complaints with the Civil Rights Division (the IER), the IER may initiate independent investigations “if there is reason to believe unlawful discrimination has occurred.” This agreement is part of the Department of Justice’s Protecting U.S. Workers’ Initiative, launched in February 2017, to defend U.S. workers from discrimination by employers who favor foreign visa workers.

This recent collaboration between the DOJ and BCA is another part of the Trump Administration’s efforts to scrutinize H visa applications. In August 2017, the Foreign Affairs Manual was changed to encourage Consular Officers to consider whether there might be some aspect of fraud being committed as they adjudicate H-1B and other visa applications. With the new agreement in place between the BCA and the IER, any information gathered through personal interviews of visa applicants at the Consulates can be transmitted easily not only back to the USCIS for possible revocation of a petition, but also to the IER for possible investigation.

If you have any questions about visa interviews abroad and their possible ramifications, please contact your Jackson Lewis attorney.

 

The Department of State has quietly revised guidance to Consular Officers on the “30/60 Day Rule” regarding adjustment of status applications.

The Rule sets standards for determining whether an alien would be inadmissible for inconsistent conduct. It provides:

  • If an alien engaged in inconsistent conduct within 30 days of an entry, a willful misrepresentation could be presumed.
  • If the conduct occurred after 30 days, but within 60 days of an entry, there was no presumption of misrepresentation and the alien would be given the opportunity to present countervailing evidence.
  • After 60 days, the inconsistent conduct alone would not constitute a basis of inadmissibility.

The Rule provided aliens flexibility to postpone filings to avoid the presumption of misrepresentation. A foreign national making a willful misrepresentation to gain entry into the U.S. can be barred for life from entering the U.S.

Willful misrepresentations are not just false statements. Conduct inconsistent with representations made in order to procure an immigration benefit also are considered willful misrepresentations.

Inconsistent conduct (also known as “pre-conceived intent”) includes conduct that violates or is otherwise inconsistent with an alien’s non-immigrant status, such as:

  • Engaging in unauthorized employment
  • Enrolling in a course of academic study, if such study is not authorized for that non-immigrant classification (e.g., B status)
  • Being in B or F status, or any other status prohibiting immigrant intent, and marrying a U.S. citizen or lawful permanent resident and taking up residence in the U.S.
  • Undertaking any other activity for which a change of status or an adjustment of status would be required, without the benefit of such a change or adjustment

The Department of State eliminated the Rule as of September 1, and substituted a stricter one. The “90 Day Rule” applies to all visa applicants (immigrant and non-immigrant). Under the revised FAM, if an alien engages in conduct inconsistent with the alien’s non-immigrant status within 90 days of an entry, a willful misrepresentation can be presumed and the burden of proof shifts to the alien to establish that “his or her true intent at the time of the presumptive willful misrepresentation was permissible in his or her nonimmigrant status.”

While the FAM guidelines are applicable directly to consular officials adjudicating visa applications abroad, the prior “30/60 Day Rule” was generally followed by USCIS in adjudicating applications to adjust status in the United States. The full effect of this change to the FAM is not yet known. However, as USCIS has announced mandatory in-person interviews for employment-based adjustment of status recently, individuals and practitioners can expect additional scrutiny of prior entries. Please reach out to your Jackson Lewis attorney with any questions about inconsistent conduct and strategies to consider in light of recent developments.