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Immigration Law Update

October 23, 2017

Time to apply for the 2019 diversity visa lottery

The U.S. Department of State is now receiving applications for the Diversity Immigrant Program, also known as the DV-2019 Lottery. Applicants from countries with historically low rates of immigration to the United States are invited to apply to the program for an expedited path to permanent residence if they are lucky enough to win. There is no fee to register.

Due to high rates of immigration, natives of the following countries are ineligible: Bangladesh, Brazil, Canada, China (mainland born), Columbia, Dominican Republic, El Salvador, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Peru, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories and Vietnam.

Applicants from any other country besides those listed above must submit entries for the DV-2019 electronically at by noon EST, Tuesday, November 7, 2017. For more information, visit the Department of State’s website or call Karen Moss or Brad Ortman at (216) 621-7227.

USCIS to institute interviews for employment-based green card applicants

The U.S. Citizenship and Immigration Services (USCIS) announced a new interview requirement for employment-based permanent residence applications to comply with President Trump’s executive order, “Protecting the Nation from Terrorist Entry into the United States.”

Cases filed prior to March 6 will be adjudicated by USCIS service centers under prior procedures in which 90-95% of cases did not result in interviews. All employment-based adjustment of status applications based upon a Form I-140 Immigrant Petition (EB-1, EB-2 and EB-3) filed on or after March 6 will be subject to interviews at local field offices. Despite the implementation of this new requirement, USCIS has indicated that the agency will make sure to adjudicate the maximum number of visas allocated each fiscal year.

Regional service centers will continue to adjudicate the I-140. If approved, the case will be sent to the National Benefits Center (NBC) to pre-process and ensure the case is “interview ready.” NBC will slot cases for interview at the local field offices, send interview notices and ship the files to the field offices. USCIS may waive interviews for applicants under 14 years old. The agency will endeavor to schedule families together.

Officers have been instructed not to re-adjudicate the I-140, but the officers may assess the validity of the supporting documents.

As these employment-based interviews will increase the local offices’ workloads, we can expect increases in processing times for both employment-based and family-based adjustment of status and naturalization applications.

Our office will be available to represent applicants at interviews.

The Department of State toughens standards for travelers who change their plans after arriving in the United States

On September 1, the Department of State (DOS) updated the Foreign Affairs Manual (FAM) with new guidelines on the term “misrepresentation” for purposes of determining inadmissibility for a foreign national who has sought to procure a visa or admission into the United States. Under the new 90-day rule, a presumption of willful misrepresentation will be applied to a person who violates his or her nonimmigrant status or engages in conduct inconsistent with that status within 90 days of entry.

Both under former and current rules, engaging in the following activities is sufficient to trigger the application: engaging in unauthorized employment; enrolling in a full course of study without authorization or change of status; marrying a U.S. citizen or legal permanent resident, and taking up residence while in a nonimmigrant status requiring the intent to return home (visitor or student status); or undertaking any other activity for which a change of status or adjustment of status would be required.

This is a significant departure from the prior rule, which allowed for such presumption only if the status violation or conduct occurred within 30 days of entry. Under the prior rule, if the violation occur

Under the new 90-day rule, no presumption of willful misrepresentation arises if the individual violates status or engages in conduct inconsistent with the person’s nonimmigrant status more than 90 days after entry into the United States. However, if the facts of the case give rise to a “reasonable belief” that the individual misrepresented the purpose of his or her travel at the time the visa was issued or application for admission, the Consular Officer must request an advisory opinion.

The new FAM rule does not explicitly apply to USCIS. As of now, USCIS has not formally updated its policy manual to be consistent with the DOS standard, but we anticipate that USCIS will act in accord with this rule in the near future.

U.S. government to collect, review and store social media use by foreign travelers, immigrants and naturalized U.S. citizens

Beginning October 18, the Department of Homeland Security (DHS) will collect, store and scrutinize “social-media handles and aliases, associated identifiable information and search results” of all immigrants in the country — even permanent residents and naturalized U.S. citizens. This has tremendous implications for the right to privacy of more than 43 million foreign-born people in this country and the U.S. citizens who interact with them on social media. Very little has been revealed by the government as to how this profoundly intrusive effort will be managed and how the information obtained will be used. While this marks a dramatic expansion in government surveillance in this country, it is a genuine question whether it will make us any safer.

USCIS dramatically increases Requests for Evidence (RFE) issuance for entry-level H-1B occupations

USCIS has stepped up its scrutiny of H-1B filings, focusing especially on entry-level occupations, which have routinely been approved for H-1B status for dec