IMMIGRATION NEWS AND UPDATES: No DACA protection and H-1B visas

South Florida immigration attorney Caroly Pedersen

DACA reinstated

Recently, both houses of Congress passed the annual budget bill, which funds the government through September 2018 which was subsequently signed by President Trump.

 Many people were hopeful that a DACA protection clause extending the program or making it permanent would be included in the bill, but in the end, negotiations between the Democrats and Republicans failed.

The DACA deal fell through in part because Democrats insisted on a permanent solution for Dreamers, which includes a pathway to citizenship. For now, pursuant to Federal court rulings, the Trump administration is forced to keep the DACA program open for renewals, but, unfortunately, the program is not available for first time applicants. Democrats continue to work on a bipartisan bill with moderate Republicans to fix the DACA issue, but so far there is no time-frame for a vote. Stay tuned…

The growing risk of extending or changing status inside the U.S.

Commonly, in the past, a foreign national visiting the U.S. on a Tourist/Business Visa, called a B1/B2, could extend his or her stay or change to a new visa like an F-1 Student visa status, by filing an application with the USCIS. Once filed, the applicant could remain in the U.S. legally, while waiting for the application to be processed, typically within several months. An example would be a case involving an international tourist wishing to extend his or her vacation for several months in the U.S. or an individual seeking to become an international student to study English or enroll in an academic program.

 

However, things have gotten much more complicated recently.  Due largely to new Trump administration policies, it has become very risky for anyone who wants to change or extend status in the U.S.

There are several changes.

First, under a recent Trump policy change, foreign nationals should wait for 90 days after the date they entered the U.S. before filing any immigration application with the USCIS, including those to extend or change status.

Second, the USCIS processing time has increased so drastically, to 4-9 months, that in most instances, an individual’s “period of authorized stay” in the U.S. will expire while waiting for their application to be processed.

Third, as part of Trumps new tough immigration measures, it is more difficult to obtain approval for extensions. Foreign applicants must now withstand more scrutiny about their intentions to return to their home country, and risk denial if they are not able to provide documentation which establishes that they own property and continue to maintain a residence in their home country, to which they intend to return once their visa in the U.S. expires.

Finally, under another new policy, all applicants to change status to an F-1 student or other visa in the U.S. are first required to file applications to extend status in the U.S. This is not only confusing, but can lead foreign nationals to believe that once they file the application to extend status, it will automatically be granted and there is no risk, when nothing could be farther from the truth.

Taken together, this is a lethal combination for any foreign national who values their U.S. visa, since overstaying an individual’s “period of authorized stay” in the U.S. by even one day, results in immediate cancellation of that person’s B1/B2 visa. And under the present circumstances, it is very easy to overstay, since USCIS processing takes so long and denials are much more common.

Another risk that many applicants do not understand is that if they apply to extend status in the U.S. and are approved, once they leave and later try to return again too early, they risk heightened scrutiny about their intentions in the U.S. In some cases there could even be denial of entry or even B1/B2 visa cancellation if the officer believes they are seeking to reenter the U.S. with the intention to change or extend status again.

If an individual applies to extend or change status in the U.S., then leaves the U.S. after his or her “period of authorized stay” in the U.S. has expired, before the USCIS has issued a decision on their case, again, it results in immediate cancellation of that person’s B1/B2 visa. Clearly, filing any application to extend or change status in the U.S. is risky and should be very carefully considered before an application is made. In most cases, applying for an F-1 student visa is much safer to do abroad through the U.S. Consulate and much quicker, usually within about 30-90 days.

USCIS suspends premium processing for all new H1B cap petitions

H-1B visa applications from U.S. employers are accepted every year during the first week in April. These visas are for foreign workers in “specialty occupations” which the USCIS and department of labor have determined require at least a Bachelor’s degree to perform.

 Due to the limited number of visas and overwhelming demand, the USCIS performs a random lottery to choose 65,000 of the expected 300,000+ applications received. Just as last year, the USCIS has announced that it will suspend premium 15-day processing services for all H1B Cap applications. Any request for premium processing (form I-907) filed with a cap-subject H1B petition will be rejected. If only one check is submitted with the H1B petition, combining the regular H-1B and premium processing fees, the entire petition will be rejected and returned to the petitioner. 

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