2017 has proven to be a busy year for immigration. Below is a recap of three pertinent developments that employers should keep in mind:
- 30/60 day misrepresentation rule eliminated. Foreign nationals entering the U.S. on a specific non-immigrant visa are not supposed to change to another visa shortly after their entry. Previously if a foreign national filed to change his status within 30 days of entry, there would be a presumption that the foreign national engaged in misrepresentation which would be grounds for denying the change of status and perhaps also constitute a basis for removal. The 30 day period has now been lengthened to 90 days. Therefore, any person who violates his or her nonimmigrant status or engages in conduct inconsistent with that status within 90 days of entry (including filing for another status), will face a presumption of misrepresentation. Employers should keep this new rule in mind when being asked to sponsor foreign nationals or assist them with change of status requests.
- Advance Parole Applications—Denial due to international travel. Contrary to long-standing policy, USCIS is now denying pending advance parole applications (I-131) if applicants travel internationally while the petition is pending. This is true even if the applicant has a valid H, K, L or V visa allowing them to return to the U.S. Advance parole allows foreign nationals who have pending green card applications to travel outside the U.S. and reenter while those applications are pending. Employers should consider checking with their foreign national employees who have I-131 petitions pending and plan on traveling internally before receiving their advance parole approval. Although Advance Parole petitions used to be adjudicated within 90 days, currently USCIS is taking up to 5-6 months to adjudicate these petitions.
- Non-immigrant visa renewals subject to original scrutiny. In November USCIS announced that in adjudicating work visa renewal applications it would no longer give deference to the fact it had previously approved the visa petition, even if nothing had changed regarding the foreign national’s work situation. This means that the government will examine each renewal petition as if it was a new petition. Employers should be prepared to present all documents it would now be required to present for a new application. Given the increased scrutiny by the government of the H-1B applications, this means employers will be forced to greatly increase the documentation provided and should expect to receive a Request for Evidence. Employers may not want to delay applying for extensions and should expect longer processing times. Premium processing is still available for many types of non-immigrant visa petitions and renewals, including H-1B visas.