June 2018 Newsletter
In This Issue
DHS Proposes Ending International Entrepreneur Program
The Department of Homeland Security (DHS) has proposed a rule to end the International Entrepreneur Program, which allows certain foreign entrepreneurs to be considered for parole to develop and build start-up businesses in the United States. The rule DHS wants to end is known as the International Entrepreneur Rule (IE Final Rule).
The idea of helping international entrepreneurs began several years ago. In January 2017, the Obama administration published the IE Final Rule. It was supposed to take effect in July 2017. In July 2017, DHS published a final rule to delay the implementation date of the IE Final Rule to March 14, 2018, to give the Department time to draft a rescission of the IE Final Rule. However, in December 2017, a federal court vacated the delay rule, requiring USCIS to begin accepting international entrepreneur parole applications consistent with the IE Final Rule.
DHS is now proposing to eliminate the IE Final Rule because the agency "believes that it represents an overly broad interpretation of parole authority, lacks sufficient protections for U.S. workers and investors, and is not the appropriate vehicle for attracting and retaining international entrepreneurs."
DHS noted that by statute, it has discretionary authority to parole individuals into the United States temporarily, on a case-by-case basis, for urgent humanitarian reasons or significant public benefit. After reviewing DHS parole programs in accordance with an executive order, "Border Security and Immigration Enforcement Improvements," issued on January 25, 2017, DHS is proposing to remove regulations published as part of the IE Final Rule. DHS said it concluded that the IE Final Rule "created a complex and highly structured program that was best established by the legislative process rather than relying on an unorthodox use of the Secretary's authority to 'temporarily' parole, in a categorical way, aliens based on 'significant public benefit.' "
DHS also said that the Immigration and Nationality Act already provides for visa classifications that enable certain entrepreneurs to start businesses and work in the United States, such as the E-2 nonimmigrant classification and the EB-5 immigrant classification. DHS said it "is committed to reviewing all existing employment-based immigrant and nonimmigrant visa programs to ensure program integrity and protect the interests of U.S. investors and workers."
The National Venture Capital Association (NVCA) issued a press release calling the move a "major mistake for U.S. job creation and innovation." NVCA noted that the delay and announced intention to rescind the IE Final Rule "comes at a time of increased global competition for entrepreneurship. The U.S. share of global venture capital investment has dropped precipitously from 90% twenty years ago to 54% last year. Countries like Canada, France, Germany, and Singapore have put in place 'startup visas' to bring new companies to their shores. The world's best immigrant entrepreneurs now have many choices on where to start a new enterprise."
Read the May 25, 2018, DHS announcement.
Read the May 29, 2018, Federal Register rule proposing elimination of the program.
Read the NVCA press release.
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The USCIS is now beginning a new more secure method for delivering to applicants sensitive documents such as greed cards, employment authorization documents (EADs, or ‘work permits') and ‘Travel Booklets'. This method will also allow applicants to track their packages and to arrange a time to collect the package from the post office or USCIS if delivery is difficult or inconvenient.
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USCIS Reminds F-1 Students of Automatic Termination of OPT If They Transfer or Begin Study at Another Educational Level
U.S. Citizenship and Immigration Services (USCIS) recently reminded F-1 students on Optional Practical Training (OPT) that transferring to another school or beginning study at another educational level (for example, beginning a master's program after completing a bachelor's degree) automatically terminates their OPT as well as their corresponding employment authorization document (EAD).
Although authorization to engage in OPT ends upon transferring to a different school or changing educational level, students in F-1 status will not be otherwise affected as long as they comply with all requirements for maintaining their student status, USCIS said. These requirements include not working with a terminated EAD, because termination means that students are no longer authorized to work in the United States. Working in the United States without authorization "has serious immigration consequences, including removal from the country and bars on reentry. Furthermore, remaining in the United States in violation of lawful nonimmigrant status could lead to an accrual of unlawful presence which includes another set of penalties under the Immigration and Nationality Act," USCIS warned.
Currently, U.S. Immigration and Customs Enforcement's (ICE) Student and Exchange Visitor Program (SEVP) informs USCIS of the termination date, and the OPT termination is automatic under current regulations, USCIS noted. USCIS said it has updated its systems and will begin to enter the EAD termination date into these systems after being notified by SEVP. USCIS will notify affected students and provide them with an opportunity to correct any errors in the record via their designated school official.
The OPT program grew 400% from 2008 to 2016, according to a Pew Research Center analysis of U.S. Immigration and Customs Enforcement data. Students from India made up the largest portion of OPT permit holders during the period analyzed, with 441,400 permit holders, a 30% share of the total number. Students from China came second at 313,500 (21%), followed by South Koreans at 90,800 (6%).
Read the USCIS announcement.
Read the Pew Research Center report.
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USCIS Corrects Biometric Services Appointment Notices with Wrong Application Support Center Locations
U.S. Citizenship and Immigration Services (USCIS) announced on May 23, 2018, that due to a processing error on May 4, 2018, USCIS mailed a number of biometric services appointment notices with incorrect Application Support Center (ASC) locations to petitioners who filed Form I-751, Petition to Remove Conditions on Residence.
The affected notices have a date of 05/04/2018 and a case type of "I-751 – PETITION TO REMOVE CONDITIONS ON RESIDENCE." The notices tell petitioners to appear for their biometric services appointments starting the week of May 21, 2018, at ASCs located out of the normal geographic area.
On June 8, 2018, USCIS plans to mail new biometric services appointment notices to petitioners who received incorrect notices and did not reschedule their appointments or appear as walk-ins at the closest ASCs to their locations.
USCIS released the following instructions in the meantime:
If you received an incorrect appointment notice, you do not need to travel out of the normal area to attend your biometric services appointment. Instead, you have two options:
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Guidance Revised on EB-5 Immigrant Investor Cases Involving Tenant Occupancy; Adjustment of Status Interview Guidelines/Waiver Criteria
USCIS announced on May 16, 2018, that it is revising guidance on immigrant investor (EB-5) cases involving tenant occupancy. Previously, the USCIS Policy Manual allowed for tenant-occupancy methodologies used by some petitioners to show that their capital created, or will create, 10 indirect jobs. USCIS said it determined that "these methodologies do not provide reasonable predictions of indirect job creation and are no longer considered reasonable methodologies to support economically or statistically valid forecasting tools."
USCIS said it therefore will no longer accept tenant-occupancy models for filings. USCIS said it will continue to "give deference to Form I-526, Immigrant Petition by Alien Entrepreneur, and Form I-829, Petition by Entrepreneur to Remove Conditions on Permanent Resident Status, "when directly related to previously approved projects, absent material change, fraud or misrepresentation, or legal deficiency of the prior determination."
USCIS also announced the same day that it is updating guidance on adjustment of status interview guidelines and interview waivers by:
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USCIS Recalls Incorrectly Dated Green Cards for Spouses of U.S. Citizens
On May 14, 2018, USCIS began recalling approximately 8,500 permanent resident cards ("green cards") due to a production error. The green cards were for approved Forms I-751, Petition to Remove Conditions of Residence, for spouses of U.S. citizens. The cards were printed with an incorrect "Resident Since" date and were mailed between February and April 2018.
USCIS said it was sending notices to individuals who received the incorrect green cards and to their attorneys of record, if any. The affected individuals should return their incorrect green cards to USCIS in the provided pre-paid envelope within 20 days of receiving the notice, or return their cards to USCIS field offices, USCIS said. USCIS will send replacement green cards within 15 days of receiving the incorrect card.
The recall does not affect these green card holders' status as lawful permanent residents. If affected individuals need to travel internationally or prove their lawful permanent residence while they wait for a replacement card, they may call the USCIS Contact Center at 800-375-5283 to determine if they need additional proof, the agency said.
Spouses of U.S. citizens may apply for naturalization after three years of permanent residence and must meet other requirements. The incorrect date on these cards could lead applicants to wait longer than necessary to apply to become U.S. citizens, USCIS said.
Read the USCIS announcement.
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USCIS Issues New Policy on Accrual of Unlawful Presence for F, J, M Nonimmigrants
U.S. Citizenship and Immigration Services (USCIS) issued a policy memorandum on May 10, 2018, "Accrual of Unlawful Presence and F, J, and M Nonimmigrants." The memo provides guidance to USCIS officers and "assists USCIS officers in the calculation of unlawful presence of those in student (F nonimmigrant), exchange visitor (J nonimmigrant), or vocational student (M nonimmigrant) status and their dependents while in the United States." The memo also revises previous policy guidance in the USCIS Adjudicator's Field Manual relating to this issue. The new guidance takes effect August 9, 2018.
The new policy states various ways in which F, J, and M nonimmigrants and their dependents begin accruing unlawful presence. For example, F, J, and M nonimmigrants who failed to maintain nonimmigrant status before August 9, 2018, will start accruing unlawful presence based on that failure on August 9, 2018, unless the nonimmigrant had already started accruing unlawful presence based on several scenarios.
Individuals who have accrued more than 180 days of unlawful presence during a single stay, and then depart, may be subject to 3-year or 10-year bars to admission, depending on how much unlawful presence they accrued before they departed the United States. Individuals who have accrued a total period of more than one year of unlawful presence, whether in a single stay or during multiple stays in the United States, and who then reenter or attempt to reenter the United States without being admitted or paroled, are permanently inadmissible, USCIS said.
USCIS said this new policy supersedes existing policy, which is that foreign students (F nonimmigrants) and exchange visitors (J nonimmigrants) who were admitted for, or present in the United States in, duration of status started accruing unlawful presence only after USCIS formally found a nonimmigrant status violation while adjudicating a request for another immigrant benefit or only after an immigration judge ordered the applicant excluded, deported, or removed (whether or not the decision was appealed), whichever came first. F and J nonimmigrants, and foreign vocational students (M nonimmigrants), who were admitted until a specific date certain accrued unlawful presence on the day after their Form I-94 expired, on the day after USCIS formally found a nonimmigrant status violation while adjudicating a request for another immigration benefit, or on the day after an immigration judge ordered the applicant excluded, deported, or removed (whether or not the decision was appealed), whichever came first.
Read the memo.
Read a related USCIS statement.
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DOJ, USCIS Announce Agreement on Protecting U.S. Workers
U.S. Citizenship and Immigration Services (USCIS) and the Department of Justice announced on May 11, 2018, a Memorandum of Understanding (MOU) that "expands their collaboration to better detect and eliminate fraud, abuse, and discrimination by employers bringing foreign visa workers to the United States." This new effort "improves the way the agencies share information, collaborate on cases, and train each other's investigators," USCIS said.
The MOU will increase the ability of the agencies to share information and identify, investigate, and prosecute employers who may be discriminating against U.S. workers and/or violating immigration laws. In 2010, USCIS and the Justice Department's Civil Rights Division entered into an ongoing partnership to share information about E-Verify misuse and combat employment discrimination. The new MOU "expands upon the two agencies' existing partnership," USCIS said.
"In the spirit of President Trump's Executive Order on Buy American and Hire American, today's partnership adds to the Civil Rights Division's tools to stop employers from discriminating against U.S. workers by favoring foreign visa workers," said Acting Assistant Attorney General John M. Gore of the Civil Rights Division. "The Division looks forward to expanding its partnerships with USCIS to hold accountable employers that discriminate against U.S. workers based on their citizenship status."
"Protecting and maintaining the integrity of our immigration system remains a key priority for me, and underpins the exceptional work of the professionals at USCIS," said USCIS Director L. Francis Cissna. "This agreement enhances the level of coordination among investigators who often work on the same issues at different agencies. Breaking down silos and working with our federal partners to combat employment discrimination will help ensure that U.S. workers have the advocate they need at the highest level."
Read USCIS's statement.
Read the MOU.
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New Publications and Items of Interest
Nation of immigrants. Podcasts on U.S. immigration history and what it means to be an immigrant in America:
The latest E-Verify webinar schedule from USCIS is available.
Advisories and tips:
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:
Hodkinson Law Group News
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