Breaking News 06.11.2018

USCIS Changes Policy on Calculating Unlawful Presence for F, M, and J Nonimmigrants

Effective August 9, USCIS may change the way it calculates unlawful presence (ULP) for nonimmigrants admitted as F or M students, and J exchange visitors, including F-2, J-2, and M-3 dependents, who fail to maintain their status in the United States (note that the policy may change due to public comments, so details of this article may change before August 9). Previously any J, F, or M admitted to the U.S. for "duration of status" (D/S) could only begin to accrue ULP if a DHS official or Immigration Judge made a written finding of a violation of status. Accrual of ULP, as explained below, can have extreme consequences, preventing return to the U.S. and nixing the possibility of obtaining permanent residence for a long time.

USCIS views the change as furthering President Trump's Executive Order "Enhancing Public Safety in the Interior of the United States". USCIS Director L. Francis Cissna issued an announcement stating, "F, J, and M nonimmigrants are admitted to the United States for a specific purpose, and when that purpose has ended, we expect them to depart, or to obtain another, lawful immigration status. The message is clear: These nonimmigrants cannot overstay their periods of admission or violate the terms of admission and stay illegally in the U.S. anymore."

Individuals in F, J, and M status who have failed to maintain their status will start accruing ULP on August 9, unless they had already started accruing ULP, on the earliest of any of the following:

• The day after DHS denied the request for an immigration benefit, if DHS made a formal finding that the individual violated his or her nonimmigrant status while adjudicating a request for another immigration benefit;

• The day after their I-94 expired; or

• The day after an immigration judge or in certain cases, the Board of Immigration Appeals (BIA), ordered them excluded, deported, or removed (whether or not the decision is appealed).

Individuals in F, J, or M status who fail to maintain their status on or after August 9, will start accruing ULP on the earliest of any of the following:

• The day after they no longer pursue the course of study or the authorized activity, or the day after they engage in an unauthorized activity;

• The day after completing the course of study or program, including any authorized practical training plus any authorized grace period;

• The day after the I-94 expires; or

• The day after an immigration judge, or in certain cases, the BIA, orders them excluded, deported, or removed (whether or not the decision is appealed).

Individuals who have accrued more than 180 days but less than one year of ULP during a single stay, and then depart, will be subject to three-year bar to admission. Persons who accrue more than one year ULP are barred from the US for ten years. Individuals who have accrued a total period of more than one year of ULP, whether in a single stay or during multiple stays in the United States, and who then reenter or attempt to reenter the US without authorization from DHS are permanently inadmissible. Those subject to the three-year, 10-year, or permanent bar to admission are generally not eligible to apply for a visa, admission, or adjustment of status to permanent residence unless they are eligible for a waiver of inadmissibility or another form of relief.

TPS for Honduras Terminated Effective January 5, 2020; 60-day Re-registration Period Now Open

On May 4, the Secretary of the Department of Homeland Security announced the decision to terminate the Temporary Protected Status (TPS) designation for Honduras after determining that conditions in Honduras no longer support re-designating the country for TPS. The current TPS designation was set to expire on July 5, 2018. The decision to terminate TPS for Honduras affects approximately 57,000 Honduran nationals holding TPS status.

However, "to allow for an orderly transition" for Honduran TPS beneficiaries, the termination will be delayed for 18 months, until January 5, 2020. Honduran citizens with current TPS registrations may re-register for TPS and apply for Employment Authorization Documents until that date. The 60-day re-registration period runs from June 5, 2018 through August 6, 2018.

All applicants must submit Form I-821, Application for Temporary Protected Status. Applicants may also request an Employment Authorization Document (EAD) by submitting a completed Form I-765, Application for Employment Authorization, at the time of filing Form I-821, or separately at a later date. Both forms are available to download on USCIS' website at uscis.gov/tps.

Trump Ends Deferred Enforcement Departure for Liberia

President Trump issued an Executive Memorandum on March 27, 2018 that formally ended a policy known as Deferred Enforcement Departure (DED) for Liberia, which allowed certain Liberian nationals to remain in the U.S. when they might otherwise be subject to removal.

In 1999, President Clinton first authorized DED for Liberians, for a one-year period, after the country's civil war concluded. At the end of that year, President Clinton found that the political and economic conditions in Liberia remained fragile, and he reauthorized DED for Liberians. President Bush and President Obama repeatedly extended DED for Liberians. Most recently, in 2016, President Obama extended DED for Liberians for 18 months, which expires by its own terms on March 31, 2018.

Trump's announcement allows for a "12-month wind-down period" in order to provide Liberia's government time to reintegrate its returning citizens and to allow DED beneficiaries who are not eligible for other forms of immigration relief to make necessary arrangements and to depart the United States. During this wind-down period, current Liberian DED beneficiaries will be eligible for employment authorization if they have continuously resided in the United States since October 1, 2002, and do not fall into one of the following categories:

(1) Individuals with criminal histories that would render them ineligible for TPS;

(2) Individuals whose removal the Secretary of Homeland Security determines to be in the interest of the United States;

(3) Individuals whose presence or activities in the United States the Secretary of State has reasonable grounds to believe would have potentially serious adverse foreign policy consequences for the United States;

(4) Individuals who have voluntarily returned to Liberia or their country of last habitual residence outside the United States;

(5) Individuals who were deported, excluded, or removed before the date of this memorandum; or

(6) Individuals who are subject to extradition.

USCIS Incorporates State Department's "90 Day Rule" into Policy Manual

The U.S. Department of State (DOS) is the agency in charge of granting visas abroad, and recently developed a "90 day rule" to guide consular officers in evaluating whether a person committed "misrepresentation" in statements made to either the consular officer concerning their intentions at the time of the visa application or to the immigration officer at the port of entry. In brief, the 90-day rule permits a consular officer to "presume" a willful misrepresentation occurred in seeking a visa or entry when an alien violates or engages in conduct inconsistent with their nonimmigrant status within 90 days of entry to the U.S. According to DOS, "inconsistent conduct" includes:

• Engaging in unauthorized employment;

• Enrolling in a course of academic study, if such study is not authorized (for example, for those with B visa status);

• Marrying a U.S. citizen or LPR and taking up residence in the U.S., after entering on nonimmigrant B (Visitor) or F (Student) status, or any other status prohibiting immigrant intent; and

• Undertaking any other activity for which a change of status or an adjustment of status would be required, without the benefit of such a change or adjustment.

USCIS, the agency in charge of granting immigrant and nonimmigrant benefits within the U.S., revised its Policy Manual in reference to the 90-day rule as follows:

The 90-day rule is not a "rule" in the sense of being a binding principle or decision. The rule is simply an analytical tool that may assist DOS officers in determining whether an applicant's actions support a finding of fraud or misrepresentation in a particular case. This DOS 90-day rule is not binding on USCIS. Officers should continue to evaluate cases for potential fraud indicators and, when appropriate, refer cases to Fraud Detection and National Security according to existing procedures.

Thus, while USCIS has not formally incorporated the 90-day rule into its adjudication practices, it is possible that some officers will increase their scrutiny of "inconsistent conduct" within 90 days of entry when making determinations of willful misrepresentations. The consequences of a finding of willful misrepresentation are severe: The Immigration and Nationality Act states that any alien who, by willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other immigration benefit is inadmissible and may be barred for life from entering the U.S. While a waiver is available, the applicant must have a U.S. citizen or permanent resident spouse or parent to qualify, and show that this qualifying relative would suffer extreme hardship if the waiver is not granted.

USCIS Completes Lottery for 15,000 Additional H-2B Visas

On June 6, 2018, USCIS announced that it received more H-2B visa petitions than the additional 15,000 available visas under the FY 2018 supplemental cap. USCIS began accepting H-2B petitions on May 31, 2018, and the numerical cap was met within five business days of filing. Accordingly, USCIS will use a computer-generated process, commonly known as a lottery, to randomly select the 15,000 additional H-2B petitions to meet the increased cap for FY 2018.

The lottery will include all H-2B cap-subject petitions received between May 31, 2018 and June 6, 2018. USCIS will reject and return all unselected petitions with their filing fees, as well as any cap-subject petitions received after June 6.

All H-2B petitions selected in the lottery (including those accepted for premium processing) will bear the receipt date of June 11, 2018. Only employers whose petitions were accepted will receive receipt notices.

Congress made these additional 15,000 visas available to U.S. workers after all visas in the regular H-2B cap (66,000 per fiscal year) were met for FY 2018. The H-2B program exists to provide a visa for U.S. businesses who employ foreign workers for temporary nonagricultural jobs, and these additional 15,0000 visas are only available to American businesses which, among other requirements, attest that they will likely suffer irreparable harm without the ability to employ all the H-2B workers requested in their petition.

USCIS continues to accept H-2B petitions with start dates for FY 2018 that are exempt from, or not counted towards, the congressionally mandated cap. USCIS will consider petitions requesting an employment start date on or after Oct. 1, 2018, towards the FY 2019 cap. These petitions will be subject to all eligibility requirements for FY 2019 H-2B cap filings.