Januay 2017 Newsletter

In This Issue

Most Previous Forms Accepted Until February 21, But Must Include New Fees

When new fees for most U.S. Citizenship and Immigration Services (USCIS) forms went into effect on December 23, 2016, the agency published updated versions of the forms. USCIS strongly encourages applicants to submit the new versions, which have an edition date of 12/23/16. However, USCIS said it will accept most prior versions of forms until February 21, 2017, but all filings postmarked December 23 or later must include the new fees or they will be rejected. USCIS said it will accept only the new 12/23/16 edition of Form N-400, Application for Naturalization.

Get the updated forms.

Read the announcement.

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DHS Designates AAO Precedent Decision on National Interest Waivers

Jeh Johnson, Secretary of the Department of Homeland Security (DHS), recently designated as precedential a U.S. Citizenship and Immigration Services' (USCIS) Administrative Appeals Office (AAO) decision, Matter of Dhanasar. The decision vacates Matter of New York State Dep't of Transp. [NYSDOT], 22 I&N Dec. 215 (Acting Assoc. Comm'r 1998).

The AAO said that, based on the agency's experience with NYSDOT, "we believe it is now time for a reassessment." This precedent decision in Dhanasar means USCIS may grant a national interest waiver if the petitioner demonstrates that: (1) the foreign national's proposed endeavor has both substantial merit and national importance; (2) he or she is well positioned to advance the proposed endeavor; and (3) on balance, it would be beneficial to the United States to waive the requirement of a job offer and thus of a labor certification.

Among other things, the AAO decision noted that the first Dhanasar prong of the three listed above—substantial merit and national importance—focuses on the specific endeavor that the foreign national proposes to undertake. The endeavor's merit may be demonstrated in a range of areas, such as business, entrepreneurialism, science, technology, culture, health, or education. The AAO explained that evidence that the endeavor has the potential to create a significant economic impact may be favourable but is not required because an endeavor's merit may be established without immediate or quantifiable economic impact. For example, endeavors related to research, pure science, and the furtherance of human knowledge may qualify, whether or not the potential accomplishments in those fields are likely to translate into economic benefits for the United States. In determining whether the proposed endeavor has national importance, the AAO said it considers its potential prospective impact. An undertaking may have national importance, for example, because it has national or even global implications within a particular field, such as those resulting from certain improved manufacturing processes or medical advances. "But we do not evaluate prospective impact solely in geographic terms. Instead, we look for broader implications. Even ventures and undertakings that have as their focus one geographic area of the United States may properly be considered to have national importance," the AAO noted. "In modifying this prong to assess 'national importance' rather than 'national in scope,' as used in NYSDOT, we seek to avoid overemphasis on the geographic breadth of the endeavor. An endeavor that has significant potential to employ U.S. workers or has other substantial positive economic effects, particularly in an economically depressed area, for instance, may well be understood to have national importance."

The second prong, the AAO said, shifts the focus from the proposed endeavor to the foreign national. To determine whether he or she is well positioned to advance the proposed endeavor, the AAO said it considers factors including, but not limited to, "the individual's education, skills, knowledge and record of success in related or similar efforts; a model or plan for future activities; any progress towards achieving the proposed endeavor; and the interest of potential customers, users, investors, or other relevant entities or individuals."

The AAO said it recognizes that forecasting feasibility or future success may present challenges to petitioners and USCIS officers, and that many innovations and entrepreneurial endeavors may ultimately fail, in whole or in part, despite an intelligent plan and competent execution. "We do not, therefore, require petitioners to demonstrate that their endeavors are more likely than not to ultimately succeed. But notwithstanding this inherent uncertainty, in order to merit a national interest waiver, petitioners must establish, by a preponderance of the evidence, that they are well positioned to advance the proposed endeavor."

The third prong requires the petitioner to demonstrate that, on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification, the AAO said. "On the one hand, Congress clearly sought to further the national interest by requiring job offers and labor certifications to protect the domestic labor supply. On the other hand, by creating the national interest waiver, Congress recognized that in certain cases the benefits inherent in the labor certification process can be outweighed by other factors that are also deemed to be in the national interest. Congress entrusted the Secretary to balance these interests within the context of individual national interest waiver adjudications," the AAO noted.

In performing this analysis, the AAO said that USCIS may evaluate factors such as "whether, in light of the nature of the foreign national's qualifications or proposed endeavor, it would be impractical either for the foreign national to secure a job offer or for the petitioner to obtain a labor certification; whether, even assuming that other qualified U.S. workers are available, the United States would still benefit from the foreign national's contributions; and whether the national interest in the foreign national's contributions is sufficiently urgent to warrant forgoing the labor certification process." The AAO emphasized that, in each case, the factors considered "must, taken together, indicate that on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification." The AAO noted that this new prong in Dhanasar, unlike the third prong in NYSDOT, "does not require a showing of harm to the national interest or a comparison against U.S. workers in the petitioner's field. ... NYSDOT's third prong was especially problematic for certain petitioners, such as entrepreneurs and self-employed individuals. This more flexible test, which can be met in a range of ways ..., is meant to apply to a greater variety of individuals."

USCIS noted that the Secretary of DHS may, with the Attorney General's approval, designate AAO or other DHS decisions to serve as precedents in all future proceedings involving the same issue or issues. Precedent decisions are binding on DHS employees except as modified or overruled by later precedent decisions, statutory changes, or regulatory changes.

Read the decision in the Virtual Law Library of the Department of Justice's Executive Office for Immigration Review.

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USCIS Issues Policy Guidance on Registration of Lawful Permanent Resident Status

U.S. Citizenship and Immigration Services (USCIS) issued policy guidance on December 21, 2016, addressing registration of lawful permanent resident (LPR) status.

USCIS said the updated policy: (1) provides guidance on eligibility and evidentiary requirements for presumption of lawful admission and creation of record, registration by children born in the United States to accredited foreign diplomats, and the registry program; (2) provides guidance on presumption of lawful admission following certain errors that occurred at the time of admission; and (3) explains relevant codes of admission and effective dates of LPR status for approved applications for registration.

The policy alert (PA-2016-10), and the updated guidance is included in the USCIS Policy Manual. Click here to read the latest manual.

Also see a summary of new or updated policies available for comment.

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United States, Honduras Sign MOU to Protect Workers from Discrimination

The U.S. Department of Justice (DOJ) and the government of Honduras announced a formal partnership to protect workers from discrimination based on citizenship, immigration status, and national origin.

On December 7, 2016, Principal Deputy Assistant Attorney General Vanita Gupta, head of the DOJ's Civil Rights Division, and Honduran Charge D'Affaires Luís F. Cordero, signed a memorandum of understanding (MOU) between the embassy and its consulates and the Civil Rights Division's Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC).

Among other things, OSC pledged to conduct training of consular staff identified by each Honduran consulate; attend and participate in forums organized by the Honduran consulates for Honduran nationals and employers involving topics under OSC's jurisdiction; disseminate compliance and educational materials through the U.S. embassy to Honduran consulates and stakeholders in other locations; and publicizing the MOU. The Honduran government pledged to establish a system, through its Secretariat at the Honduran embassy in Washington, DC, for referring discrimination, unfair documentary practices, and retaliation allegations to OSC, and consult periodically with OSC to ensure that Honduran consulates are referring such allegations.

Read the MOU in English.
Read the MOU in Spanish.

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Graham, Durbin Introduce Bipartisan 'Bridge Act' for DACA Beneficiaries

Sens. Lindsey Graham (R-SC) and Dick Durbin (D-IL) announced on December 9, 2016, that they have introduced S. 3542, a bipartisan bill "to protect undocumented individuals should the Deferred Action for Childhood Arrivals (DACA) program be discontinued." Cosponsors include Sens. Lisa Murkowski (R-AK), Dianne Feinstein (D-CA), and Jeff Flake (R-AZ). The legislation, dubbed the "Bar Removal of Individuals who Dream and Grow our Economy (BRIDGE) Act," would provide temporary relief from removal and work authorization to young undocumented persons who were brought to the United States as children."

DACA, which the Obama administration implemented via executive order, provides temporary protection from removal and work authorization to young students and veterans who grew up in the United States if they register with the government, pay a fee, and pass a criminal background check. More than 740,000 young people have received DACA. Temporary protection under the BRIDGE Act "would ensure that these young people can continue to work and study and be protected from deportation while Congress debates broader legislation to fix our broken immigration system," Sen. Durbin said.

Key points of the BRIDGE Act include:
  • A current DACA recipient would receive provisional protected status until the expiration date of his or her DACA status and could apply for provisional protected presence prior to this expiration.
  • An individual who is not a DACA recipient but who is eligible for DACA could also apply for provisional protected presence.
  • Applicants would be required to pay a reasonable fee, be subject to criminal background checks, and meet a number of eligibility criteria indicating that they came to the United States as minors, grew up in the United States, have pursued an education, have not committed any serious crimes, and do not pose a threat to the United States.
  • An individual's provisional protected presence and employment authorization would be subject to revocation by the Department of Homeland Security if the individual no longer met the eligibility criteria.
  • The provisional protected presence and employment authorization would be provided for three years after the date of enactment of the legislation.

President-elect Donald Trump had previously said that he would rescind "every single Obama executive order," but he recently said when questioned about DACA recipients that "[w]e're going to work something out that's going to make people happy and proud," and noted that "[t]hey got brought here at a very young age, they've worked here, they've gone to school here. Some were good students. Some have wonderful jobs. And they're in never-never land because they don't know what's going to happen." Sen. Durbin said, "We want to reach out to the incoming administration and urge them if they take any action on DACA try to do it with this BRIDGE, to join us in passing this BRIDGE so we don't have the disruption." And House Speaker Paul Ryan (R-WI) said that Republicans "would not pull the rug out from under" DACA recipients brought to the United States as children. "I will defer to the people who are focused on this on a daily basis to make sure they get this policy right, so that we don't have any kind of ugly disruption that people are concerned about."

More information:

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Congress Extends Four Immigration Programs Through April 28

President Barack Obama signed H.R. 2028 (Pub. L. 114-254), a short-term bill passed by Congress, into law on December 9, 2016. The law includes a continuing resolution to fund the government through April 28, 2017. It extends without any changes the EB-5 Regional Center Program, E-Verify, the Conrad State 30 J-1 Waiver Program, and the Special Immigrant Non-Minister Religious Worker Program. The H-2B returning worker exemption was not reinstated.

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USCIS to Dispose of SAVE Records in April 2017; Historic Records Report Available

In April 2017, U.S. Citizenship and Immigration Services (USCIS) plans to dispose of Systematic Alien Verification for Entitlements (SAVE) transaction records that are over 10 years old. USCIS has created a Historic Records Report that contains transaction records dated on or before December 31, 2006, which SAVE users may download from now through March 31, 2017.

SAVE encourages users to retain the Historic Records Report. USCIS noted that it may retain SAVE records associated with an ongoing government investigation, prosecution, or litigation.

See instructions on how to download the report.

More information about SAVE.

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Government Agency Links

Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State's latest Visa Bulletin with the most recent cut-off dates for visa numbers:
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Hodkinson Law Group News

We hope you enjoyed the festive period and wish you happiness, prosperity and peace in 2017. We all enjoyed a good rest over the Christmas break and have returned to the office re-energised and ready to assist our clients and colleagues. With the cold weather so far this year we are enjoying the proximity of our office to London Bridge station. The fact we merely need to cross the road to get to our new office at 6 Hays Lane is welcome. Our phone, fax and email addresses remain unchanged. Our offices are more convenient to the new US Embassy, London, which will be moving to Nine Elms this year.

Kehrela Hodkinson has been named one of the 10 most highly regarded corporate immigration lawyers outside of the United States by Who's Who Legal in its 2016 Corporation Immigration Analysis. Kehrela has been practising US immigration law since 1981 and has been in London since 1994. Her passion for assisting both individual and corporate clients resolve their US immigration issues has never waned in her 35 years of practising law.

Sharon Noble has been practicing U.S. immigration law with Hodkinson Law Group since 1996. Her areas of expertise include non-immigrant and immigrant visa petitions for corporate employees, individual investors and entrepreneurs. Ms. Noble worked with Ms. Hodkinson in London for seven years before returning to the United States in 2003. She is now Of Counsel to Hodkinson law Group, working remotely from California.

Allison Ouvry has practiced business immigration law since 2000. She is a member of the State Bar of Texas and the New York Bar, and a member of the American Immigration Lawyers Association, the American Women Lawyers in London group, and the London Library. Allison works with the firm's corporate clients to find creative solutions to enable the companies' employees to work in the United States on both a short term and long term basis.

Tasha Wiesman has relocated to Chicago from where she remotely continues to assist our clients in the preparation and filing of non-immigrant and immigrant visa petitions and applications of waivers of grounds of inadmissibility. She is a member of the Illinois State Bar and is actively involved in The American Immigration Lawyers Association Military Assistance Program.
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Kehrela Hodkinson has been named as one of the ten most highly regarded immigration lawyers outside of the US by "Who's Who Legal, Corporate Immigration 2016".

Sharon Noble has been practicing US immigration law since 1996. She is Of Counsel to Hodkinson Law Group, working remotely from California.

Allison Ouvry has practiced law since 1996, concentrating in the field of business immigration since 2000.

Tasha Wiesman assists in the preparation and filing of non-immigrant and immigrant visa petitions and applications for waivers of inadmissibility.
Hodkinson Law Group | www.usvisalawgroup.com | +44 (0) 20 7299 2490
6 Hays Lane | London | SE1 2HB | United Kingdom

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