EIG Dispatch | August 29, 2017

USCIS News: USCIS Houston Closures / USCIS Prevailing Wage Challenges / AP Applications and International Travel

DC Insights: U.S. Government Shutdown over Border Wall Funding / 9th Circuit Hears Arguments over Travel Ban

Headlines: Thailand Introduces Smart Visa / Closures of U.S. Consulates for Eid-Al-Adha

Feature Story: USCIS to Require in Person Interviews for Employment-Based Green Cards

The Latest in USCIS News

USCIS Houston Offices and Centers Closed Due to Hurricane Harvey.  The USCIS Field Office, Asylum Office, and Application Support Centers in Houston, Texas will be closed through September 4, 2017 due to the aftermath of Hurricane Harvey. While appointments will automatically be rescheduled for individuals with an interview or biometrics appointment at the USCIS Field or Asylum Offices, individuals who have an InfoPass or other appointments  will have to reschedule a new appointment on their own. Individuals with a scheduled appointment at the USCIS Application Support Center will automatically receive a new ASC appointment notice by mail. If the the appointment notice is not received within 3 weeks, please contact the National Customer Service Center at 800-375-5283.

Recent Uptick in USCIS Challenges over Level 1 Prevailing Wage Rates for H-1B visas. There has been an increase in USCIS issuing Requests for Evidence (RFE) for H-1B positions with level 1 prevailing wage classification. Wage levels for H-1B visas are set by the Department of Labor and are split into four categories depending on the job’s required education level and work experience. In these requests, USCIS asks employers to provide evidence that the duties for the position, while complex and specialized so as to require a Bachelor’s degree for entry, are normal for entry level positions within the filed.

USCIS Denies Advance Parole Applications Due to Applicants’ International Travel. The American Immigration Lawyers Association (AILA) has recently received reports that USCIS is now denying I-131, advance parole applications for individuals who travel while the application is pending, even if the applicant has a separate valid advance parole document or a valid H, K, L, or V visa at the time of travel. USCIS has indicated that anyone who departs while the I-131 application is pending is considered to have abandoned that application. This applies to both original applications and renewals. EIG will contact individuals with a pending AOS application to discuss any international travel and the potential impact of the recent action by USCIS.

DC Insights: What We Learned in the Past 7 Days

Trump Threatens U.S. Government Shutdown over Border Wall FundingOn Tuesday, August 22, President Trump threatened to shut down the U.S. government if Congress does not agree on funding for a proposed wall along the U.S.-Mexico border. Trump has requested approximately $1.6 billion to begin construction of the wall, putting Congress under pressure to include the measure in their annual spending bill, which must be passed prior to September 30, 2017. If border wall funding is not included in the spending bill, it is unlikely that Trump will sign the bill. A government shutdown could impact the function of many government agencies, notably USCIS and the Department of Labor (DOL). As such, if a funding compromise is not reached, services offered by the USCIS and DOL will likely be disrupted and cause delays in the processing of applications.

9th Circuit Hears Oral Arguments over U.S. Supreme Court’s Interpretation of “Bona Fide Relationship.” On Monday, August 28, the U.S. Court of Appeals for the 9th Circuit heard oral arguments over the scope of the U.S. Supreme Court’s order with respect to President Trump’s Travel Ban. The oral arguments came after the U.S. Supreme Court declared enforcement of part of the travel ban in June 2017. As previously reported, the U.S. Supreme Court lifted the blockage of Trump’s directive except when it comes to “foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States.” While the U.S. Supreme Court did not define “bona fide relationship” the court included “close family” as an example of those who have a credible claim of a bona fide relationship. Arguing for the Administration, government attorney Hashim Mooppan argued that the Trump Administration interpreted the U.S. Supreme Court’s order as excluding grandparents and certain other extended family members, while Colleen Sinzdak, Counsel for Hawaii, argued the contrary. The 9th Circuit will announce its decision on the scope of “bona fide relationship” within the upcoming weeks.

Headlines: Immigration News from Around the World

Thailand to Introduce “Smart Visa” to Investors, Entrepreneurs, and Highly Skilled Workers and their Families. Thailand has approved a proposal to offer a “Smart Visa” to investors, startup entrepreneurs, highly skilled professionals, and their families. Unlike other visa categories that require a Thai employment contract or frequent renewals, the new smart visa will allow recipients to live and work in Thailand with greatly reduced administrative requirements.  Prime Minister Prayut has tasked the Ministry of Labor and the Ministry of Foreign Affairs with finalizing any follow-up amendments and regulations by December.

Eid-Al-Adha Closures of Select U.S. Consulates in MENA. In observance of the Eid-Al-Adha holiday, U.S. Consulates and Embassies will be closed or have reduced office hours in the Middle East, North Africa and parts of Asia. Offices will close depending on the day observed by the country in which the Consulate and Embassy is located for approximately 1-6 days, starting August 24, 2017 to September 4, 2017. Foreign nationals applying for visas should expect a delay in processing and plan accordingly.

Feature Story: USCIS to Require in-Person Interviews for Employment-Based Green Card Process Starting October 1

On Monday, U.S. Citizenship and Immigration Services (USCIS) announced that, starting October 1, 2017, it will begin to conduct in-person interviews for applicants seeking employment-based green cards through adjustment of status. In the past few days, since this news broke on Friday, we have received many questions about how this happened and the impact it has.

Will this slow down processing times?
Probably, but we don’t know how much. USCIS is currently processing employment-based green card applications within 8-9 months. According to some reports, USCIS plans to streamline other parts of the process, but the overall impact is unknown.

Will this new requirement be applied to cases pending on October 1st, or only ones filed after that date?
It is not clear. USCIS has not provided details as to how it will implement this requirement. However, anyone for whom an interview is required will be notified in advance.

How will I find out if I have to appear for an interview?
USCIS will send an interview notice to your home. A copy will also be sent to your EIG attorney. Interview notices are usually issued at least 1 month in advance.

Where will interviews be conducted?
Interviews will be conducted at the USCIS field office with jurisdiction over the applicant’s home address.

What type of questions will be asked?
USCIS interviews typically include identity verification and a review of information provided on the forms. Interviewees will likely be asked about their employment history, residential history, and travel. Like we often do for visa interviews at consulates, EIG attorneys will provide one-on-one interview preparation in advance of interviews.

Are they interviewing everyone, or just specific people?
We believe they will be interviewing all individuals applying for green cards based on employment (including family members). However, the exact policy has not yet been announced and is likely to be phased in over time.

Why is this happening?
This policy change is in line with President Trump’s promise to enhance screening of immigrants for the purpose of fraud detection and national security.

Isn’t there some sort of public process the government has to go through to change policy like this?
In this case, no. According to government regulation, all adjustment of status applicants are interviewed unless USCIS waives the interview. Over the last decade, USCIS has consistently waived the interview requirement for employment-based applications, but they have always been free to, at any time, reinstate the requirement. This in-person interview requirement is not completely new. In-person interviews were required for some employment-based adjustments as recently as 2007.