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F-1 "Cap-Gap" Status and Work Authorization
Extension Only Valid through September 30

USCIS has reminded F-1 students whose cap-subject H-1B petition remains pending that they risk accruing unlawful presence if they continued to work on or after October 1 (unless otherwise authorized to continue employment), as their "cap-gap" work authorization was only valid through September 30. While USCIS regulations allow an F-1 student who is the beneficiary of a timely filed H-1B cap-subject petition requesting a change of status to H-1B on October 1 to have his or her F-1 status and any current employment authorization extended through September 30, the regulations do not provide for "cap-gap" work authorization beyond September 30. Clearly, the regulations contemplated that USCIS would adjudicate all affected cases before October 1 to avoid a gap in employment. But, because USCIS has not yet adjudicated all cap-subject H-1B change-of-status petitions for all F-1 students, some beneficiaries will have to stop working. Such F-1 students generally may remain in the United States while the change-of-status petition is pending without accruing unlawful presence, provided they do not work without authorization.

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USCIS Implements New
Notice to Appear (NTA) Policy

Effective October 1, USCIS began implementing its policy of referring cases to the immigration court through the issuance of a Notice to Appear (NTA) on denied status-impacting applications, thus increasing its enforcement actions to a whole host of cases that normally are not automatically referred for proceedings. Service of the NTA provides a foreign national with notice that deportation proceedings are being initiated and that they are now under the jurisdiction of the immigration courts.

Although USCIS had had longstanding authority to issue "referral NTAs" to ICE, USCIS exercised this authority sparingly and only in specific situations. Not any more.

In announcing the implementation of its new policy, USCIS makes clear that it will be taking an incremental approach; in other words, it will not be referring all cases to ICE. Here is a summary of how USCIS expects to implement the new policy and some procedural considerations:

  • This initial implementation period does not include cases involving abuse of public benefits.
  • Actions on I-129 petitions are not included in this implementation period.
  • Once the NTA has been filed with the Executive Office for Immigration Review (EOIR), USCIS cannot cancel the NTA; however, in certain circumstances, USCIS could coordinate with ICE to determine if termination is warranted.
  • Withdrawing an application does not cancel USCIS's authority to issue an NTA; USCIS may issue an NTA, even if the individual withdraws the application.
  • USCIS will add language to denial notices to ensure that benefit seekers are provided adequate notice when an application for an immigration benefit is denied, by indicating that if the applicant is no longer in a period of authorized stay, and does not depart the United States, USCIS may issue an NTA. USCIS will also provide details on how applicants can review information regarding their period of authorized stay, check travel compliance, or validate departure from the United States.
  • Generally, USCIS will not issue an NTA immediately upon the denial of an immigration benefit; it will usually wait for the expiration of the motion or appeal period before issuing the NTA. However, USCIS reserves the right to issue an NTA before or after the motion or appeal period. If an NTA is issued before a motion or appeal is filed or while it is pending, and USCIS takes favorable action on the motion or appeal, USCIS will work with ICE to make ICE aware of the favorable action.
  • If a USCIS adjudicator thinks discretion is warranted in a particular case, the adjudicator may submit a recommendation to the prosecutorial review panel, based on the individual facts of the case.
  • An individual may request USCIS to issue an NTA. The request must be made in writing to the office with the jurisdiction over the case. USCIS retains discretion to deny such a request.
  • NTAs issued by USCIS may be served in person or by mail.
  • There is no change to TPS (Temporary Protected Status) cases. If USCIS issues an unfavorable decision on an application other than TPS and the individual's TPS has terminated, USCIS may issue an NTA.

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Comments Due by December 10

Newly Proposed Public Benefits Rule
Would Hinder Admissibility to U.S.

On October 10, USCIS published a proposed rule that would expand the definition of "Inadmissibility on Public Charge Grounds," which is intended to determine whether a foreign national is inadmissible because he or she is likely at any time to become a public charge. Having received cash benefits from the United State is currently a consideration in this equation. However, under the proposed rule, an individual having received noncash benefits, including Medicaid, Supplemental Nutrition Assistance Program (SNAP), housing vouchers, or rent subsidies could potentially be considered a "public charge." The proposed rule cites that individuals, not their family members, who receive one or more of these benefits with a combined value of at least 15 percent of federal poverty guidelines (i.e., roughly $1,800 a year, or $150 a month) could be deemed a "public charge." These are benefits for which foreign nationals are eligible, but now it appears they will be penalized if they avail themselves of these benefits.

DHS's rule cites a chart of the "Totality of Circumstances Framework for Public Charge Determinations," which explains the potential weight given to the factors of age, health, family status, assets, resources, and financial status. Thus, for example, an older person with a chronic health condition requiring substantial health resources might be considered to have more negatively weighted factors and might therefore be deemed inadmissible.

The Department of State (DOS) had already begun to scrutinize individuals applying for green cards under the public-charge bar in a similar fashion. DOS looks beyond the affidavit of support to a person's age, health, family situation, income, resources, education, skills, and the use of noncash benefits by applicants, sponsors, and family members, including U.S. citizen children. DOS now requires a consular officer to use this detailed determination to consider the totality of the person's circumstances.

Notice and Comment Period: The public has until December 10, 2018 (60 days) to comment on the proposed rule. To view the proposed rule and/or submit a comment, see www.regulations.gov.

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Employment Authorization & Advance Parole

Update on Long-Pending Applications
at the National Benefits Center (NBC)

We are seeing long delays in the adjudication of Form I-765 (Application for Employment Authorization) and Form I-131 (Application for Travel Document) processed by the National Benefits Center (NBC). Processing times for the NBC as of September 2018 indicate that I-765 applications based on pending I-485 adjustment of status applications range from 4.5 to 6.5 months. All other I-765 applications for employment authorization range in processing time from five to seven months. Similarly, current processing times for I-131 applications at the NBC range from 4.5 to 6.5 months.

USCIS reports that I-765 and I-131 applications filed concurrently with an I-485 adjustment of status application, particularly those filed with the NBC based on the "Dates for Filing" chart contained in the monthly Visa Bulletin, are undergoing a "second review" to determine underlying eligibility for adjustment of status. These reviews do not currently have a timeframe for completion, and in some cases, appear to be slowing down the overall processing time for I-765 and I-131 applications pending with the NBC. This review must be completed before employment authorization or advance parole may be granted.

There is, however, an expedite process for applicants if they meet at least one of USCIS's expedite criteria, which must be supported by evidence. The NBC has specifically stated that a single letter from the applicant, without additional supporting documentation, will not be sufficient. The following are the bases on which an expedite will be considered:

  • Severe financial loss to company or person;
  • Emergency situation;
  • Humanitarian reasons;
  • Nonprofit organization whose request is in furtherance of the cultural and social interests of the United States;
  • Department of Defense or national interest situation (These particular expedite requests must come from an official U.S. government entity and state that delay will be detrimental to the government.);
  • USCIS error;
  • Compelling interest of USCIS.

In our experience, most successful expedite requests are those that are based on unanticipated, family emergencies, but some of our clients have prevailed on other bases. If you would like assistance with an expedite request, please contact us.

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Visa Availability for EB-1 Remains Uncertain;
Pending Adjustment Applicants Must Wait

The EB-1-1 (employment-based first preference) became oversubscribed during the summer. While this is normal because the summer is the end of the U.S. fiscal year, visas in this category historically always have become available again October 1, the beginning of the new fiscal year, and green cards would be issued. Not so this year. According to officials at the Department of State who are in charge of number crunching, this category is not expected to become "current" in 2019. There will, however, be some forward movement of visa availability in December.

For Indian and Chinese nationals, the wait will most likely be longer. DOS expects some advancement in December but it is unclear how far these categories will advance. What does this mean for applicants who have filed for adjustment of status based on an approved I-140 case? It means you will have to wait and your status remains legal but in limbo. (Even if you have had your interview, USCIS will not issue your immigrant visa (green card) until a visa becomes available again.)

Most important, and while you wait, adjustment applicants are reminded to make sure your combo card remains current. It may need to be renewed, which you can do six months in advance of its expiration date. Renewing your work authorization may be important for renewing your driver's license but for some, renewing may not be necessary. Renewing your advance parole is trickier because the filing of the renewal will trigger another period of being "landlocked" and unable to travel abroad. While the adjudication of work authorization documents and advance parole continues to take on average between 4.5 to 6.5 months, work authorization is automatically extended for 180 days upon the timely filing of the renewal. Not so for advance parole. There is no filing fee for renewing either advance parole or work authorization documents.

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USCIS Announces New Policy Guidance
for Validity Period of Medical Examination

USCIS has announced a revision to the policy guidance for the validity period of Form I-693, Report of Medical Examination and Vaccination Record, effective November 1, 2018. The revised policy will require applicants to submit a Form I-693 with a civil surgeon signature and date that is no more than 60 days before the filing date of the underlying application. The Form I-693 will remain valid for two years from the date of signature. Form I-693 can continue to be completed after filing of the immigration application and submitted to USCIS at the time of the applicant's interview.

USCIS officers use Form I-693 to determine whether an applicant for an immigration benefit in the United States is inadmissible under health-related grounds. By requiring that the Form I-693 be signed no more than 60 days before filing date of the underlying application, the validity period of the form is closer to typical processing times of the immigration application.

USCIS also announced that a Form I-693 submitted to USCIS prior to November 1, 2018 may be subject to the previous validity period policy.

Clients who now have a medical report and have been waiting to submit it at their interview are advised to check the signature date on their copy of the form (do not open the sealed envelope!) to make sure that the form is still and will remain valid.

Clients also are advised that civil surgeons now are required to perform an IGRA (interferon gamma release assay) instead of the tuberculin skin test when testing for TB, for which the results take longer (4-5 days). Plan your medical exam accordingly.

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Judge Temporarily Blocks Termination of TPS
for El Salvador, Haiti, Nicaragua, and Sudan

On October 3, U.S. District Judge Edward Chen issued a preliminary injunction against the government from terminating Temporary Protected Status (TPS) for immigrants from El Salvador, Haiti, Nicaragua, and Sudan. The judge ruled that the government must maintain TPS, and employment authorizations for TPS beneficiaries from those countries, while a lawsuit challenging the government's decision to eliminate their protections continues. The preliminary injunction is effective immediately and will remain in effect pending resolution of the case or further order from the court. The judge stated:

"… absent injunctive relief, TPS beneficiaries and their children indisputably will suffer irreparable harm and great hardship. TPS beneficiaries who have lived, worked, and raised families in the United States (many for more than a decade), will be subject to removal. Many have U.S.-born children; those may be faced with the Hobson's choice of bringing their children with them (and tearing them away from the only country and community they have known) or splitting their families apart. In contrast, the government has failed to establish any real harm were the status quo (which has been in existence for as long as two decades) is maintained during the pendency of this litigation. Indeed, if anything, Plaintiffs and amici have established without dispute that local and national economies will be hurt if hundreds of thousands of TPS beneficiaries are uprooted and removed."

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Buyer Beware

Report Says Many USCIS Civil Surgeons
Have History of Wrongdoing

According to a news article in the New York Times, dozens of doctors — USCIS civil surgeons — tapped by the federal government to screen immigrants applying for green cards have a history of "egregious infractions." The report by the DHS's Office of Inspector General looked at more than 5,500 doctors across the U.S., and found that 132 had been convicted of crimes, been penalized by state medical boards or had faced some other form of punishment. The report also stated that USCIS does not have policies to ensure only suitable physicians are designated.

What's an applicant for adjustment of status to do, given that the medical exam report is required for the case? Shop around.

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The following additional items may be of interest to our readers:

Latest News on Using Premium Processing: The fee to premium process those cases that are eligible increased to $1,410 effective October 1, DHS has announced. USCIS also announced that it was suspending premium processing for all H-1B cases until February 19, 2019, except renewals filed by the same employer.

Presidential Determination on Refugee Admissions for FY2019 is 30,000: The White House released a memo from the Secretary of State allowing for the admission of up to 30,000 refugees into the United States for FY2019. This is the lowest number of refugees to be allowed entry into the U.S. since the Refugee Act of 1980 was signed into law, and represents the administration's abandonment of the country's long-standing commitment of helping those fleeing war and persecution. There are now more displaced people in the world than there were at the end of World War II.

Proposed Rule Would Dismantle Flores Settlement Agreement to Permit Indefinite Detention of Children: The administration has proposed regulations that would dismantle the Flores Settlement Agreement, a decades-old court settlement put in place to ensure the safety and proper care of children in immigration detention, which if made final, would lead to the indefinite detention of children and families in federal immigration detention facilities. Comments are due by November 6.

Update on TPS for Somalia and Yemen; EADs Extended for TPS Beneficiaries from El Salvador: USCIS announced that current beneficiaries of TPS under Somalia's designation who want to maintain their status through 3/17/2020 must re-register by 10/26/2018. Re-registration procedures, including how to renew EADs, have been published in the Federal Register. USCIS also announced the automatic extension of Employment Authorization Documents (EADs) for Somalia TPS recipients with an original expiration date of 9/17/2018 for 180 days, through 3/16/2019. Meanwhile, DHS extended the designation of Yemen for TPS for 18 months, from 9/4/2018 through 3/3/2020. And, USCIS announced it will automatically extend the validity of certain EADs through 3/4/2019 for TPS beneficiaries from El Salvador. Such beneficiaries will be mailed a Notice of Continued Evidence of Work Authorization for the additional 180-day automatic extension. (See also article, above, on injunction against termination of TPS.)

CBP Announces I-94 Website Update to Allow Group Payments: CBP's I-94 website will allow group payments for I-94 applications for travelers entering at land ports of entries. A traveler, family member, representative, travel agent, or other responsible party can now submit up to 25 applications up to seven days prior to entry and submit one payment for the total amount.


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