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Immigration News: USCIS New Policy on Unlawful Presence for F, J and M Nonimmigrants

Tiyalaw — Sat, 12 May 2018 19:38:12 +0000

Immigration News: USCIS New Policy on Unlawful Presence for F, J and M Nonimmigrants

Effective August 9, 2018, U.S. Citizenship and Immigration Services (USCIS) implements a new and more restrictive immigration policy on the accrual of unlawful presence for F, J and M nonimmigrants and their dependents, admitted/authorized to stay for duration of status (D/S) or until a specific date. This USCIS new policy is to update Chapter 40.9.2 of the USCIS Adjudicator’s Field Manual.

F and M are student visas. An F visa is for an academic student to study in the U.S. at an accredited college, university, seminary, conservatory, academic high school, elementary school, or other academic institution or in a language training program. An M visa (vocational student) is participating in vocational or other nonacademic programs, other than language training. J is an exchange visitor visa for participating in an approved program for teaching, instructing or lecturing, studying, observing, conducting research, consulting, demonstrating special skills, receiving training, or to receive graduate medical education or training.

For nonimmigrants above who failed to maintain immigration status before August 9, 2018, their unlawful presence starts from August 9, 2018, unless they have previously started accruing unlawful presence on the earliest day 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).

For nonimmigrants above who failed to maintain nonimmigrant status on or after August 9, 2018, their unlawful presence starts on the earliest day 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).

A dependent’s status (F-2, J-2 and M-2) ends when the nonimmigrant status of the F-1, J-1 or M-1 ends. Alternatively, a dependent’s status in F-2, J-2 or M-2 may end due it his/her own’s activities or situations.

The accrual of unlawful presence for individuals present in the United States who are not in F, J, or M nonimmigrant status remains unchanged.

Unlawful presence affects an individual’s immigration benefits. Generally, individuals subject to a time bar are ineligible for a visa, admission, or Green Card unless they have an approved waiver or another form of relief. For examples, an individual with over 180 days of unlawful presence in a single stay may, upon departing the US, trigger a 3-year or 10-year bar from entering the U.S. Individuals who have over a year of unlawful presence who either reentered or attempted to reenter the US may trigger a permanent bar to inadmissibility.

For additional information on USCIS new policy on unlawful presence for J, F and M nonimmigrant status, please see

https://www.uscis.gov/sites/default/files/USCIS/Outreach/Draft%20Memorandum%20for%20Comment/AccrualofUnlawfulPresenceFJMNonimmigrantsMEMO_v2.pdf

May 11, 2018

This article is intended for informational purposes only, and should not be relied on as legal advice or attorney-client relationship. By Aik Wan Kok, Lawyer USA Immigration Services, at Tiya; Tel: 703-772-8224 & info at tiyaimmigration dot com; Direct dial from abroad: 001-703-7728224; https://www.tiyaimmigration.com ; http://tiyalaw.blogspot.com ; https://immigrationresource.net
Aik Wan Kok Fillali at Tiya represents companies, employers, individuals and families, located nationwide and internationally, in U.S. Immigration & Nationality Law. We focus on diverse immigration cases such as extraordinary ability; national interest waiver; PERM; green card; N-400 Naturalization; various waivers; H cases; L executive, manager and specialized knowledge professional; E treaty investor/trader; cases with USCIS, U.S. Department of Labor, U.S. Consulates and National Visa Center.

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Green Card for Multinational Manager or Executive or L-1A Intracompany Transferee – New USCIS Clarifications on EB-1C

Tiyalaw — Fri, 23 Mar 2018 02:24:01 +0000

Green Card for Multinational Manager or Executive or L-1A Intracompany Transferee – New USCIS Clarifications on EB-1C

Generally, a multinational manager or executive (L-1A intracompany transferee) who has worked outside the U.S. for a qualifying multinational organization for at least one (1) out of the three (3) years may apply for an immigrant petition to be a U.S. permanent resident under employment-based classification 1 (EB-1C). This is pursuant to Section 203(b)(1)(C) of the Immigration & Nationality Act (INA).

Lawful permanent residence is also known as Green Card. There are many ways for foreign nationals to apply for Green Cards in and to the U.S., and EB-1C multinational manager or executive is just one of them. An EB-1C Green Card is initiated by a qualifying employer by filing an I-140 Immigrant Petition for Alien Worker. After complying with the qualifying period as a Green Card holder, a person is eligible to apply for naturalization to be a U.S. citizen. Once a person is naturalized, he/she may apply for a U.S. passport.

If the beneficiary is outside the United States at the time of filing the Green Card, the multinational manager or executive’s one-year qualifying foreign employment must have occurred within the three years preceding the filing of the petition. 8 C.F.R. § 204.5(j)(3)(i)(A). If the multinational manager or executive is already working in the United States in L-1A status for the L-1A employer-petitioner, or its affiliate or subsidiary, at the time of filing filing the Green Card, the employer-petitioner must demonstrate that the L-1A multinational manager or executive’s one-year qualifying foreign employment must have occurred within the three years preceding his or her entry as a nonimmigrant. See 8 C.F.R. § 204.5(j)(3)(i)(B).

An intracompany transferee of specialized knowledge who is not a multinational manager or executive such as those under L-1B does not qualify for Green Card under EB-1C.

The approval of an immigrant petition for multinational manager or executive with the eventual approval of I-485 Applications for Adjustment of Status in the U.S. or approval of immigrant visas consular processing, will confer the multinational manager or executive and his/her qualifying family members with Green Cards.

Recently, the U.S. immigration clarifies that if the multinational manager or executive leaves the qualifying employer for more than two (2) years after working with a qualifying employer for at least one (1) year, he/she will not qualify for Green Card under EB-1C even if he returns to the same qualifying employer. This ineligibility applies regardless if the interruption of employment happened prior to multinational manager or executive’s admission as a nonimmigrant or after his/her entry to the United States. To qualify again, the multinational manager or executive must complete another year of qualifying employment with the qualifying employer outside the U.S., before being eligible to apply for Green Card under EB-1C. However, an employee whose break in continuous employment with the qualifying employer is less than 2 years may still be eligible to apply for EB-1C.

This U.S. immigration clarification is published as a policy memorandum on March 22, 2018 by U.S. Citizenship and Immigration Services (USCIS) based on The Administrative Appeals Office (AAO) immigration adjudication of the Matter of S-P-, Inc., Adopted Decision 2018-01 (AAO Mar. 19, 2018) on March 19, 2018. This AAO adjudication is utilized as a form of policy memorandum by USCIS serving as a guidance only, and does not create any rights to Green Card. Each case is adjudicated on a discretionary basis by USCIS. For further information on the Matter of S-P-, Inc., please see

https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2018/2018-03-19-PM-602-0158-Matter-of-S-P.pdf

Even though not all immigration cases are appealed to the AAO, AAO has appellate jurisdiction over approximately 50 different types of immigration case. AAO is under the jurisdiction of the U.S. Department of Homeland Security (DHS). USCIS is a part of DHS. Certain immigration cases are appealed to the U.S. Department of Justice (DOJ) such as the Board of Immigration Appeals (BIA).

March 22, 2018

This article is intended for informational purposes only, and should not be relied on as legal advice or attorney-client relationship. By Aik Wan Kok, Lawyer USA Immigration Services, at Tiya; Tel: 703-772-8224 & info at tiyaimmigration dot com; Direct dial from abroad: 001-703-772-8224; https://www.tiyaimmigration.com ; http://tiyalaw.blogspot.com ; https://immigrationresource.net

Need help with green card, work visas, work permit, sponsoring family, sponsoring employees, sponsoring relatives, hardships or immigration waivers, U.S. naturalization/citizenship, and cases with USCIS, Department of Labor or immigration? We represent employers, companies, individuals, and families in U.S. Immigration & Nationality Law. Our clients are based nationwide in the U.S. and internationally. We represent diverse immigration cases including, but are not limiting to: extraordinary ability; national interest waiver; PERM with U.S. Department of Labor; I-130 for sponsoring relatives and families; I-140 for employment green card; I-485 to adjust status; I-765 work permit/employment authorization; I-131 for international travel and returning to the U.S; I-601 extreme hardship waiver relatives of U.S. citizen or green card holder; I-751 joint filing or waiver; N-400 Naturalization/Citizenship; N-648 Medical Waiver; I-212 waiver for deportation or removal order; J waiver; H-1B professional worker/specialty occupation; H-2B temporary worker; L executive, manager and specialized knowledge professional transferring from overseas; E treaty investors/traders; B-1 business visitor to the U.S.; B-2 visitor to the U.S.; F-1 student coming to study in the U.S.; matters pertaining to consular processing with U.S. consulates and National Visa Centers; cases with USCIS; cases with U.S. Department of Labor; PERM audit; RFE Request for Evidence (RFE); NOID Notice of Intention to Deny (NOID); and many more.