Immigration Matters - 2017


October Immigration Updates

While Congress has been slow to act on implementing immigration reform, the current administration has been taking action through a variety of memo and policy updates. Immigration decisions are often left to an officer's discretion, lending more power to publications that direct those officers how to make decisions, such as policy memos and the Foreign Affairs Manual. We will discuss some of these updates and how they could affect processing times and adjudication outcomes.

Foreign Affairs Manual Updated to Reflect Priorities of “Buy American and Hire American" Executive Order

The Department of State revised the Foreign Affairs Manual (FAM) to comply with President Trump's “Buy American and Hire American" Executive Order signed in April. According to the Department of State website, the FAM and associated handbooks are a “single, comprehensive, and authoritative source for the Department's organization structures, policies, and procedures that govern the operations of the State Department, the Foreign Service and, when applicable, other federal agencies."

The FAM is utilized by U.S. Consular officers who are responsible for issuing U.S. visas around the world, so modifications to this publication could impact issuance rates. The executive order directed agencies “to propose new rules and issue new guidance… to protect the interests of United States workers in the administration of our immigration system including through the prevention of fraud or abuse."

The Foreign Affairs Manual (FAM) now mentions the executive order in regards to several nonimmigrant visa categories, including the E-1 Treaty Trader, E-2 Treaty Investor, H-1B Professional Worker, L-1 Intracompany Transferee, O-1 Alien of Extraordinary Ability or Achievement, and P Athlete, Entertainer, or Artist.

As a result of these updates, visa issuance rates could decline and applicants should expect a stricter review of their visa applications.

State Department Revises F-1 Student Policy Guidance on Intent and Ties Abroad

Foreign students may also expect tougher visa processing when attempting to study in the U.S. on an F-1 visa. Students have always been required to demonstrate ties to a foreign residence, but under the new guidance, consular officers “must be satisfied that the applicant intends to depart upon completion of the approved activity."

Students should provide strong evidence of their residence abroad and that they have no immediate intention of abandoning that residence, as well as their intention to leave the U.S. at the conclusion of his or her studies or approved Optional Practical Training (OPT).

The increased scrutiny may prevent some students from being readmitted to the U.S. under an F-1 visa if he or she also has a pending H-1B visa.

The pending H-1B might indicate to the officer that the student does not intend to depart the United States and therefore the F-1 visa would be denied. Students and potential employers should be prepared for these possibilities and should consider other options when planning for travel and employment.

Interviews Expanded for Permanent Residency, Refugee, and Asylee Applications Beginning October 1, 2017

President Trump's “Protecting the Nation from Foreign Terrorist Entry in the U.S." Executive Order has also impacted long-standing policies and procedures at USCIS. USCIS has not required an in-person interview for the majority of employment-based adjustment of status cases for many years due to processing backlogs and the low fraud rates in these types of permanent residency applications. USCIS announced in late August that interviews would be required for employment-based cases beginning October 1, 2017.

These interviews will also become routine for refugee and asylee relative petitions and may be expanded to other visa categories going forward.

Our office received notice in early September that clients were already receiving interview notices for the first days of October.

The USCIS has not released any plans as to how the additional interview volume will be handled or shared any expectations for increased processing delays. As adjustment of status applications remain pending for longer periods, individuals will also need to file additional Advance Parole extensions and Employment Authorization Documents (EADs), causing the permanent residency process to increase in price as processing times slow down.

Advance Parole Applications to be Denied if Applicants Travel While Pending

International travel may be increasingly impacted not only due to the processing delays mentioned above, but also due to a new USCIS practice of denying Advance Parole (AP) applications when the applicant travels abroad while the application is pending. Previously, USCIS allowed individuals in line for green card processing to travel while the AP and adjustment of status applications were pending.

The new policy requires individuals in the U.S. on H-1B, H-4, L-1, L-2, K-3 or V visas to wait until the advance parole applications are approved before traveling abroad or else they risk having to go through visa stamping at a U.S. Consulate in order to return.

The increased scrutiny mentioned earlier may lead to additional difficulty for green card applicants traveling abroad. Employers and employees should be aware of these changes and plan travel around advance parole adjudication times, which are currently between 90 and 120 days.

For More Information

This has been a busy summer for immigration news. For information on changes to DACA, the EB-5 program, Advance Parole Applications, H-1B adjudications and more, visit www.ChallaLaw.com. Also more information can be found at the United States Citizenship and Immigration Services (USCIS) website www.USCIS.gov.