1、No Deference to Prior Immigration Approvals. USCIS
announced on October 23, 2017 that it would no longer defer to prior
determinations of eligibility when adjudicating petition extensions involving
the same parties and underlying facts as the initial petition. Employers should
be ready to provide the same level of documentation for an amendment or
extension as they did for an initial application.
2、In-Person Interviews for Employment-Based Adjustment of Status
Applicants. USCIS announced that it would expand in-person interviews
for adjustment of status applications based on employment starting October 1,
2017. Previously, applicants did not require an in-person interview with USCIS
officers in order for their application for permanent residency to be
adjudicated. Adjustment of status applicants should be prepared for longer
processing times.
3、Wholesale Use of Requests for Evidence (RFEs). USCIS is
now issuing lengthy detailed requests for evidence contesting every issue and
requiring unreasonable quantities of proof in regard to any application for an
immigrant or non-immigrant visa or adjustment of status. Notably, USCIS has been
issuing massive amounts of RFEs for H-1B applications as Congress has stalled
reforms to the project, causing a tremendous headache for U.S. companies relying
on foreign workers with specialized knowledge.
4、Buy American, Hire American. USCIS has been working on a
combination of rulemaking, policy memoranda, and operational changes to
implement the Buy American and Hire American Executive Order by President Trump.
DOS is adjudicating nonimmigrant visa applications with the goal to “create
higher wages and employment rates for workers in the United States, and to
protect their economic interests.” Immigration petitions should include an
argument on how the issuance of a visa or other immigration benefit promotes
these policy goals.
5、A Culture of “No” to a Culture of “Gotcha”. Obtaining U.S.
immigration benefits has never been simple, but USCIS and DOS have moved away
from merely denying applications to trying to catch applicants for
misrepresentations and fraud. DOS now closely reviews prior visa applications
(DS-160s) to check for consistency with current applications (for example, prior
employment). USCIS is checking prior Form I-9s completed by foreign nationals
decades ago to see if any false claims to U.S. citizenship exist. This is also a
troublesome area for U.S. companies that use foreign workers; for example, the
U.S. Department of Justice (“DOJ”) and U.S. Immigration and Customs Enforcement
(“ICE”) announced in September 2017 that a U.S. company would pay $95 million to
settle both criminal and civil immigration charges stemming from the company’s
hiring and rehiring of undocumented workers over a six-year period.