What Processing Delays in Immigration Cases Mean

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.

Plans to Shuffle Agents from Canadian to Mexican Border Raises Fear of Delays at Northern Border

The Department of Homeland Security has announced plans to transfer more than 700 border agents from the 120 ports of entry at the Northern (Canadian) border to the Southern (Mexican) border. The purpose is to bolster the number of agents available to help with asylum seekers.

Members of the Congressional Northern Border Caucus (NBC) oppose these plans. Approximately 400,000 people and $1.6 billion in products cross the Canadian border daily. Removing border agents will cause delays, the Members contend, and the delays will only increase as the summer tourist season gets underway.

Members of the NBC have security concerns and also fear that delays will lead to economic hardships in their states. Representative Annie Kuster (D-N.H.) said, “Moving Customs and Border Protection personnel away from our northern border has the potential to impact U.S.-Canadian commerce and tourism just as we enter the busy summer months.” In a bipartisan letter to Acting Homeland Security Secretary Kevin McAleenan, Representatives from New York, Michigan, New Hampshire, Minnesota, Washington, North Dakota, and Vermont complained, “The decision to deploy northern border CBP officers to the southern border makes it increasingly more difficult for the agency to meet their core mission requirements at the border which include effectively securing U.S. points of entry and safeguarding and streamlining lawful trade and travel . . . .”

The U.S./Canada border stretches 5,525 miles and is the “longest land boundary between two countries in the world.” As long ago as 2010, close to 20 million Canadians took overnight trips to the U.S. Taking that trip during the summer months has always meant delays, but, with even more significant delays looming, Canadians may rethink travelling elsewhere.

Employers likely will feel the effects, too. Ports of entry already are turning away individuals applying for renewals of L visas. Along with tourists, potential U.S. employees applying for TNs or Ls at the ports of entry undoubtedly will be subject to delays that are longer than usual as the ports of entry struggle to keep up.

Senator Susan Collins (R-Me.) noted, “[T]he U.S. government will be monitoring the Northern border to ensure that it is not ‘negatively affected’ by [the] transfers.” Jackson Lewis attorneys will provide updates on the DHS plans as they materialize.

Changes Coming for Travel to Europe

The days of spontaneously traveling to Europe on a whim are coming to an end for U.S. citizens. For many years, U.S. citizens have been able to travel to most European countries with only a valid U.S. passport as a travel document. In 2021, the European Schengen Zone will be requiring a registration similar to the U.S. Electronic System for Travel Authorization registration system (ESTA) from U.S. citizens traveling to the Schengen Zone. Currently, the Schengen Zone includes 26 European countries: Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, and Switzerland.

The European Travel Information and Authorization System (ETIAS) will be similar to the U.S. ESTA. All U.S. citizens traveling to Europe to enter the Schengen Zone will be required to register in advance. ETIAS is not a visa application. It does not require a trip to a Consulate. The application is completed online and will require a passport valid for three months beyond the intended stay, an email account and a credit or debit card. The cost will be approximately $8.00. The expectation is that 95% of applicants will be approved for a three-year ETIAS.

There are still almost 100 countries where U.S. citizens will continue, for now, to be able to travel without a visa or any pre-registration. Prior to travel, always check the U.S. State Department website for any entry requirements or country specific travel warnings. Useful tips for everyone, but especially for those traveling with children, also include:

  • Travel with certified birth certificates or raised seal birth certificates for everyone in your party. This is especially important if traveling with minor children because passports carried by children of U.S. citizens do not contain their parents’ names;
  • Passports should be valid for at least six months beyond your intended stay and have several empty pages, as some countries may require this for entry;
  • Bring extra passport photos and cash should those be required for an unexpected on-the-spot visa application (approximately 50 countries require U.S. citizens to obtain a visa on arrival);
  • Carry up-to-date immunization certificates and proof of health insurance; and
  • Check current airline luggage and security policies.

Jackson Lewis attorneys are available to assist you if you have questions about traveling without visas. Happy travels!

H-2B Visa Allotment Increased in Advance of Summer Season

At the end of March 2019, the Trump Administration announced that it would release another 30,000 H-2B visas for seasonal employees for use through the end of September 2019. The annual allocation had been capped at 66,000 for the full year. In 2017 and 2018, the Administration increased the allocation by 15,000 visas. However, on January 1, 2019, the Department of Labor’s iCert system crashed when over 96,000 H-2B visas were requested. The unprecedented number of requests may have led to the unprecedented increase in the allocation.

The White House Office of Information and Regulatory Affairs (OIRA) has concluded its review of the increase. The OIRA is moving forward with the additional 30,000 visas. The new rule was released in the Federal Register on May 8, 2019.

The additional visas will only be available to businesses who can attest to “irreparable harm,” i.e., a risk of closure absent the visas. Moreover, the additional visas will only be available to “returning workers,” classified as those who have received H-2Bs at least once in the past three years (2016, 2017, 2018). The Department of Homeland Security (DHS) believes that these requirements will ensure national security and protect the U.S. workforce. Returning workers have already been vetted. They have shown that they will return home at the end of their temporary stay. DHS’s ability to require proof of irreparable harm will further prevent abuse.

This move provides some welcome relief to businesses in summer tourist areas where the ability to hire foreign workers can be key to keeping their businesses open. Last year, there were many hardship cases. Governor Larry Hogan of Maryland said “[a] second year of hardship could permanently damage Maryland’s seafood industry, causing these iconic family businesses to close and having a devastating impact on jobs in our state.”

Employers will be able to use previously certified labor certifications as long as the new start date is no more than 45 days after the certified start date. Jackson Lewis attorneys are available to assist you in making H-2B filings and can answer any questions you may have about the newly released visas.

Federal Court Blocks DHS Policy on Unlawful Presence for Foreign Students, Exchange Visitors

On August 8, 2018, DHS issued a new policy that announced that foreign students would begin accumulating “unlawful presence” if any violation of status had occurred, whether known to the student or not. On May 3, 2019, in Guilford College et al. v. DHS, Judge Loretta C. Biggs in the U.S. District Court for the Middle District of North Carolina issued a nationwide preliminary injunction stopping DHS from enforcing its new policy while the case before her was pending.

Prior to the August 8th policy memo, students did not accumulate unlawful presence unless USCIS made a formal finding of a violation of status or if they were ordered to be removed, deported or excluded. After the memo, a simple violation of status (knowing or unknowing) without any formal finding could start the unlawful presence clock. With unlawful presence came the possibility of becoming subject to the three and ten-year bars to admission.

In Guilford, the court found that the plaintiffs were likely to succeed on two counts:

  • That the issuance of the August 8th policy memo violated the Administrative Procedure Act; and
  • That the policy memo conflicted with the text of the Immigration and Nationality Act.

Judge Biggs concluded that although DHS allowed for a period of public comment on the policy memo, it did not publish the new policy in the Federal Register and it “did not provide a reasoned response” to the comments it received. Judge Biggs also concluded by “redefining ‘unlawful presence’ to begin to accrue on the day that a nonimmigrant’s lawful status lapses, the Policy Memorandum renders both concepts – ‘unlawful presence’ and ‘unlawful status’ – essentially synonymous” while Congress deliberately made a distinction between the two.

Sixty institutions of higher education across the country signed onto an amicus brief contending that the uncertainty created by the memo would have a chilling effect on international students planning to attend colleges and universities in the United States.

The outcome of this case may have important consequences for students who were caught off-guard by the August 8th policy memo.

The Administration has not yet responded to the Court’s ruling. DHS could appeal. In the meantime, Judge Biggs is moving the case along. All replies and responses to motions for summary judgement are due by May 30, 2019. Jackson Lewis will continue to provide updates as the litigation progresses.


L Visa Classification Process Restricted for Canadians Applying at Ports of Entry

The North American Free Trade Agreement (NAFTA) signed in 1992 was meant to make North America more competitive in the global economy by reducing trade barriers and increasing business development among the U.S., Canada and Mexico.  It essentially created a free-trade zone, but always faced criticism.  Opponents believed and have argued, among other things, that the agreement actually harmed U.S. workers.

In 2018, President Donald Trump renegotiated NAFTA in part to lower the trade deficit between Mexico and the U.S.  In September 2018, the U.S., Mexico and Canada agreed to sign onto the new “NAFTA” which would be known as the USMCA, the United States Mexico Canada Agreement.

Throughout the history of NAFTA/USMCA, special status was accorded to Canadian workers.  Because Canadians do not need visa stamps in their passports to enter the U.S., they were able to apply for L visa classification at ports of entry.  There was no need to go to a consulate nor file a petition with USCIS.  But that benefit is now being limited.  After twenty years of adjudicating renewals of L status at ports of entry, CBP is refusing to adjudicate anything other than an initial L petition or applications for intermittent/commuter Ls at the border.

This means that employers who want to “renew” or “extend” L status for Canadians must apply to USCIS.  Not only does this extend the adjudication process but it also means that L applicants will not have an in-person opportunity to explain their circumstances to officers who are very familiar with the process.  While this does not seem in accord with the ideals behind NAFTA and USMCA, it is consistent with President Trump’s Buy America, Hire America Executive Order (BAHA).  With BAHA, the Administration seeks to protect U.S. workers by making it more difficult for foreign nationals to obtain work authorization in the U.S. and, the thinking goes, take jobs that would be filled by those workers.

The Request for Evidence (RFE) and denial rate for temporary visas has grown exponentially and adjudication timelines have created long delays.  The USCIS denial rate for L-1B petitions in the first quarter of FY 2018 was approximately 30% and the denial rate for L-1A petitions rose 67% during FY 2017 to 21.4%, far higher than has been generally experienced at the ports of entry.

If you have questions about options for obtaining L visa classification for Canadians, please reach out to your Jackson Lewis attorney.



Trump Administration Targets Visa Overstays

President Donald Trump issued a Memorandum on April 22, 2019 aimed at reducing visa overstays – people who stay in the U.S. beyond the time authorized by their visas.  Assertions set forth in the Memorandum include:

  • For FY 2018, the Administration believes that there were 415,000 individuals in the U.S. who had overstayed on nonimmigrant visas; and
  • Twenty countries have overstay rates of over 10% with some as high as 20, 30 or 40%.

The President has proposed that the Secretaries of State and Homeland Security, within 120 days, make recommendations to limit visa overstays.  These recommendations could include:

  • Suspending or limiting the entry of individuals from countries with high overstay rates; and
  • Implementing admission bonds to improve compliance.

Steps already taken by the Administration to reduce overstays include:

  • Use of advanced biometrics at the border (although a full biometric entry-exit system is not expected to be in place until 2021);
  • Notifications to visa waiver program entrants of when their authorized stay ends and explaining the consequences of noncompliance; and
  • Requiring visa waiver countries with more than a 2% overstay rate to create public awareness campaigns warning of the consequences of their actions.

The President believes that lessening the overstay problem will free-up resources to handle the crisis of southern border security.  Some countries reported to have high overstay rates include: Chad, Djibouti, Eritrea, Liberia, the Solomon Islands, Benin and Burkina Faso. Other countries affected could include: Nigeria, Somalia, Sudan, Togo and Sierra Leone.

The Center for Migration Studies reported that in FY 2017 visa overstays outnumbered illegal border crossers 62% to 38%.

Jackson Lewis will provide updates as they become available.

New Legislation Offered to Extend and Expand Conrad 30 Waiver Program

Since at least 2013, there have been efforts to make the Conrad 30 J-1 visa waiver program for physicians permanent. But that has not happened and it continues to be necessary to reauthorize the program every year. This year, Senators Amy Klobuchar (D-MN), Susan Collins (R-ME), Jacky Rosen (D-NV), Angus King (I-ME) and Charles Grassley (R-IA) have introduced a bill to improve and extend the program until 2021 – the Conrad State 30 and Physician Access Reauthorization Act. Without this extension, or some other extension, the program will end later this year.

The Conrad waiver program was first enacted in 1994 to permit states to recommend “J-1 waivers” for foreign physicians who have trained in J-1 visa status in the U.S. if those physicians were willing to remain in the U.S. and work in rural and/or underserved areas. The standard requirement that J-1 physicians must return to their home countries for a period of two years prior to obtaining H-1B visas or green cards could be waived in exchange for a three-year commitment to provide medical care in such areas. The waiver has thus allowed these physicians to apply for and obtain H-1B visas (or change of status to H-1B) as well as green cards without satisfying the home residence requirement. The waiver has been the quid pro quo for encouraging more physicians to serve in areas where medical care was lacking. The program currently allows for 30 waivers per state per year.

The physician shortage in the U.S. continues to grow and the Association of American Medical Colleges (AAMC) predicts that by 2030 there will be a shortage of up to 121,000 physicians. In a news release, Senator Collins said that the bipartisan reauthorization bill will promote “healthier lives” and that providing opportunities for American-trained and educated physicians is an imperative in areas where there is an unmet need.

The Conrad State 30 and Physician Access Reauthorization Act would:

  • Create additional waivers per state based upon various thresholds;
  • Add three waivers per state for academic medical centers;
  • Allow “dual intent” for physicians who come to the U.S. in J-1 status;
  • Allow spouses of doctors to work;
  • Create new employment protections for the physicians in the program; and
  • Streamline the green card process of participating physicians.

The legislation is endorsed by the American Medical Association (AMA), the American Hospital Association (AHA) and the AAMC. The AMA has indicated that it would also like to see legislation that would exempt foreign physicians who work in underserved areas or for the Veterans’ Administration for at least five years from the per country green card caps. Others would like to make all foreign physicians exempt from the annual H-1B cap. Currently, physicians who work for an institution of higher education, a non-profit entity affiliated with such an institution, a nonprofit research organization or governmental research organization, or a private employer but at a cap-exempt entity are exempt from the H-1B cap, but this does not cover all physicians.

As the physician shortage continues to grow in the U.S., employers, public officials, and those living in impacted areas may continue to call for facilitating an influx of foreign national, U.S.-trained physicians to meet community and patient needs and demands.

Jackson Lewis attorneys are available to assist in navigating J-1 waiver issues including applying for Conrad 30 waivers.


Link to Marijuana Industry as Basis for Denial of Naturalization Application?

DHS is apparently citing federal cannabis laws as grounds for denying citizenship. Further, USCIS announced on April 19 that the USCIS Policy Manual now clarifies that violation of federal controlled substance law, including for marijuana, remains a conditional bar to establishing good moral character for naturalization even where that conduct would not be an offense under state law.

As a majority of states legalize marijuana in full or in part, conflicting state and federal law is creating problems for immigrants. Despite state law, the sale, possession, production, and distribution of marijuana or the facilitation of such is illegal under federal law. The federal government regulates drugs through the Controlled Substances Act (21 U.S.C. § 811) (CSA), which does not recognize the difference between medical and recreational use of cannabis. Immigration law is governed by federal statute and regulation and, therefore, is subject to the CSA.

DHS reportedly is questioning non-U.S. citizens at the border about their use of marijuana or investments in the marijuana industry in states (or countries such as Canada) where it is legal. The “wrong” answers, in some cases, have led to entry bans. It now appears the federal government is using a person’s involvement in the legal marijuana industry as a reason to deny naturalization applications. In addition, federal agencies are now coordinating. Historically, the Department of Justice has largely followed a policy of not meddling in state marijuana laws. Meanwhile, DHS is apparently taking a very different approach, as it did in Denver, citing federal cannabis laws as grounds for denying citizenship.

In Colorado, a fully legalized marijuana state, USCIS denied two immigrants citizenship because of a determination that they lacked “good moral character” simply because they work in the marijuana industry. A USCIS spokesperson defended the denials, stating “the agency is required to apply federal law.” There have been calls for formal guidance on this subject. The Mayor of Denver has written to Attorney General William Barr, “Denver believes hardworking and law-abiding immigrants should be allowed to participate in the legal cannabis industry without fear that such participation will disqualify them for lawful residence . . . or prevent the opportunity to obtain permanent citizenship.”

Advocacy groups are warning immigrants about the problem and that “serious consequences can follow including being barred from the United States for life . . . .” An attorney for one of those denied citizenship in Denver believes the federal law regarding marijuana is being used to target immigrants as part of the Administration’s general crackdown on immigration:

“If the executive branch is so intent on upholding federal law, you would see the U.S. attorney’s office prosecuting every marijuana business owner, everybody who worked in the industry . . . . But they’re not. Instead, they’re merely targeting immigrants.”

The USCIS decision to deny citizenship in these cases is being appealed. Please contact Jackson Lewis with any questions.


USCIS: Rise in H-1B Petitions for Master’s Degree Holders Selected in FY 2020 Lottery

USCIS has announced on Twitter that there was an 11% increase from FY 2019 in H-1B advanced degree petitions selected in the FY 2020 lottery.

This year, USCIS reversed the lottery selection process. Master’s cap petitions were first entered into the regular lottery and then those left over were entered into a master’s-cap-only lottery. USCIS had originally forecast a 16% increase.

USCIS spokesperson Jessica Collins said, “Our efforts to improve the H-1B program are working and increasing the number of U.S. advanced degree holders who are selected for the limited number of visas subject to the annual H-1B cap.”

Last year, according to reports, 56% of the master’s cap petitions were selected. This year, 63% were selected. The 11% increase may be due in part to the fact that the absolute number of petitions increased from 190,098 to 201,011 and the percentage of petitions filed on behalf of holders of advanced degree also increased. For those who filed regular H-1B cap cases, last year, 44% of the “regular” cap cases were accepted, but this year, that percentage is down to 37%.

Being selected in this year’s lottery is just the first hurdle. With request-for-evidence (RFE) rates rising to 60% during the first quarter of FY 2019, simply “winning” the lottery does not mean the case will be approved.

Please contact Jackson Lewis with any questions.