Greenspoon Marder Immigration Alert: New Developments – May 9, 2019

May 9, 2019

Federal Preliminary Injunction Blocks USCIS Unlawful Presence Policy for F, J, and M Nonimmigrants

A federal district judge has issued a nationwide preliminary injunction immediately enjoining UCSIS’ Unlawful Presence Policy for F, J, and M Nonimmigrants.

Pursuant to its 2018 policy memo (titled “Accrual of Unlawful Presence and F, J, and M Nonimmigrants”), USCIS changed the way it calculates unlawful presence for F, J, and M Nonimmigrants. Previously, foreign students and exchange visitors admitted for “Duration of Status” did not start accruing unlawful presence until DHS made a formal finding that a violation of status has occurred. Under the new policy, a foreign student or exchange visitor begins accumulating unlawful presence from the day s/he no longer pursues the course of study or the authorized activity, or the day after he or she engages in an unauthorized activity.

The new policy is currently being challenged in federal court by several universities. UCSIS will be enjoined from implementing the new policy pending further litigation.

USCIS Responds to Congressional Request for Explanation on Case Processing Delays

In February 2019, congressional members of the House of Representatives sent a letter to the Director of UCSIS raising concerns about case delays and backlogs. USCIS data for fiscal years 2014 through 2018 depicted a 46% surge in overall average case processing time and a 91% increase since FY 2014.

USCIS responded by identifying the following causes behind the backlog: receipt increases, increased volume of naturalization applications filed during the 2016 presidential election, hiring delays, lack of facilities, new interview requirements, among other factors. USCIS also indicated that it had a net backlog of over 2.4 million cases for 2018. Case completion rates were as follows for 2018: I-129 – 0.64 cases per hour; I-140 – 0.58 cases per hour; and I-485 employment-based adjustment – 0.57 cases per hour.

To address current delays and backlogs, UCSIS announced that it plans to transition more pre, post, and non-adjudicative work to non-adjudicators, centralize its information delivery services, reintroduce performance metrics, redefine public stated processing time goals, and leverage electronic processing and automation.

DHS Extends Form I-129 Pilot Program for Canadian L-1 Nonimmigrants through April 30, 2020

Last year, USCIS California Service Center (CSC) and the U.S. Customs and Border Protection (CBP) Blaine, Washington, port of entry (POE) launched a pilot program that allows Canadian citizens to request that USCIS remotely adjudicate their petitioning employer’s Form I-129 or I-129S prior to their arrival or when they arrive at the Blaine POE. USCIS has announced that this program has been extended through April 30, 2020.

The pilot is designed to evaluate how long USCIS needs to adjudicate these petitions and whether USCIS can support CBP through remote adjudications.

If participating in the pilot, Canadian citizens do not need to wait for USCIS to adjudicate the form before going to the Blaine POE to apply for admission into the United States. At the Blaine POE, they can request that USCIS remotely adjudicate their employer’s Form I-129 or I-129S. This option is only available at the Blaine POE during this pilot program.

Additional 30,000 H-2B Visas to be Made Available for the Remainder of FY2019

DHS has announced that 30,000 additional H-2B visas will be made available for the remainder of FY 2019. While the full text of the rule has not yet been made available to the public, the Office of Management and Budget (OMB) completed its review of the DHS final rule governing the allocation of the additional 30,000 H-2B visas. Once the final rule has been published in the Federal Register, it will be possible to determine the exact eligibility requirements associated with the new allocation.

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Greenspoon Marder Immigration Alert: New Developments – May 9, 2019

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