In this live stream, attorneys Jacob Sapochnick and Marie Puertollano discuss recent topics in immigration including the new USCIS policy giving immigration officers ample discretion to deny an application or petition filed with USCIS without first issuing a RFE or NOID, suspension of premium processing, fraudulent H-1B schemes, and more.
Beginning September 11, if you do not provide sufficient evidence to establish that you are eligible for the immigration benefit you are requesting, USCIS may exercise their discretion and deny your petition without first issuing a request for evidence or RFE. This new policy applies to all applications and petitions filed after September 11th, with the exception of DACA renewal applications. The decision to deny your application or petition without issuing a RFE or NOID will ultimately be up to the discretion of the officer reviewing your petition. An officer may in his discretion continue to issue a RFE or NOID according to his best judgement.
If you are filing for a change of status or extension of your status, we recommend that you file early, so that you are not out of status in the case that USCIS denies your request for an immigration benefit. This will give you the opportunity to either re-file or to consider changing your status to another visa type. In addition, if you have the ability to apply for premium processing service, you should take advantage of that service.
Suspension of Premium Processing
At the moment premium processing services have been temporary suspended for cap-subject petitions until February 19, 2019, with the exception of cap-exempt petitions filed exclusively at the California Service Center, because the employer is cap-exempt or because the beneficiary will be employed at a qualifying cap exempt institution.
A case is making headlines in the news, involving the Chief Executive Officer of Redmond Firms, one of the biggest employers in the state of Washington. The U.S. Department of Justice recently charged the CEO with visa fraud, accusing him of filing more than 100 fraudulent H-1B applications.
According to the Department of Justice, in 137 approved visa applications filed with USCIS, the firm misrepresented the type of work that was needed and included fraudulent letters that were not actually written by the recommenders.
Although this is bad news for Redmond and employers like Redmond, this is good news for H-1B workers. The H-1B is a highly sought-after visa and the process for applying for the H-1B visa is highly competitive. Only 65,000 H-1B visas are available for the regular cap, and 20,000 petitions are available for individuals holding a U.S. Master’s or higher.
The fact that the DOJ is cracking down on fraudulent H-1B visa applications means that more visas will be available for workers who actual qualify.
H1B Cap Gap
If your F-1 or OPT status expires on or after April 1st you receive what is called a cap gap, where you are allowed to work and live in the United States until September 30, 2018. Individuals in a cap gap who have filed for H-1B and have not yet received a decision, are placed in a predicament. If you are in such a situation it is highly recommended that you talk to your attorney as soon as possible because you will have to stop working on September 30, 2018 and wait until USCIS has made a decision regarding your case. If a RFE is issued for your case, this will create more delays. You may wish to consider what options you may have if any such as applying for a new I-20, to remain in status.
Filing AOS with a case that is administratively closed
If you tried to gain admission to the United States and were denied entry as an arriving alien, and you are now married to a U.S. Citizen and wish to apply for adjustment of status, USCIS can take care of your case and do your adjustment of status while your case is in the process of being administratively closed by the judge.
Recently, USCIS began issuing notices requiring cases under administrative closure to first be terminated by an immigration judge, before an application for adjustment of status could be filed by the arriving alien.
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