With the recent change by U.S. Citizenship and Immigration Services (USCIS) to mandate in-person interviews for employment based adjustment cases along with changes to require the review of social media and to what constitutes a misrepresentation of intent at the time of a visa application or entry to the U.S., employers must recalibrate and intensify their intake of cases and timing considerations before any adjustment of status filing in the U.S.

Background:

On October 1, 2017, USCIS will start to phase-in interviews of the following adjustment of status cases for U.S. legal permanent residence:

1. Employment based I-485 applications.

2. Refugee and asylee relative I-730 petitions for beneficiaries who are in the U.S. and are trying to join a principal asylee/refugee applicant.

In the past, in person interviews were not mandated for such adjustment of status applicants. The change was made to comply with Executive Order 13780 (Protecting the Nation From Terrorist Entry in the United States) issued on March 6, 2017 (the EO). Section 5 of the EO directed the Secretary of State, the Attorney General, the Secretary of Homeland Security, and the Director of National Intelligence to implement a program as part of the adjudication process to identify those who seek to enter the U.S. on a fraudulent basis, and/or who support terrorism, violent extremism, and acts of violence toward any group or class of people in the U.S.

It is important to consider this change focused on fraud detection along with the recent modification of a section of the Foreign Affairs Manual (FAM) used by consular officers of the Department of State (DOS) in the adjudication of visa applications regarding misrepresentation of intent at entry. On September 1, 2017, DOS revised its guidance on how to interpret when a visa applicant may have misrepresented information in an application for a visa, which can result in a decision of inadmissibility to the U.S. under §212(a)(6)(C)(i) of the Immigration and Nationality Act, as amended (INA).

This revision basically eliminated the old 30/60/90 day rule regarding conduct taken by someone, which was inconsistent with his or her intent at the time of entry to the U.S. or application for a visa at a U.S. consular post. This prior rule did not treat inconsistent conduct more than 60 days after admission as a basis for INA §212(a)(6)(C)(i) inadmissibility. The USCIS Policy Manual addresses the application of this “rule” in Chapter 3, Part A.3 and notes that “officers must not use Foreign Affairs Manual (FAM) guidance in a denial.” Even so, it has been often been the practice of local USCIS officers to apply such guidance in decisions regarding potential misrepresentations. In addition, this rule reference has not been updated in the Policy Manual.

Now, 9 FAM 302.9-4(B)(3)(g) provides that a nonimmigrant may be found to have acted inconsistently with his or her status if within 90 days of entry the nonimmigrant:

1. Engages in unauthorized employment;

2. Enrolls in a course of academic study, if such study is not authorized for that nonimmigrant classification (e.g. B status);

3. If in B or F status, or any other status prohibiting immigrant intent, marries a U.S. citizen or lawful permanent resident and takes up residence in the U.S; or

4. Undertakes any other activity for which a change of status or an adjustment of status would be required, without the benefit of such a change or adjustment.

In these fact patterns, among others, the nonimmigrant can be presumed to have made a “willful misrepresentation” at the time of applying for the visa or at the time of entry to the U.S.” If the nonimmigrant engages in inconsistent conduct more than 90 days after entry into the U.S., the presumption of willful misrepresentation does not apply. It is critical to remember that if during the adjustment interview, the USCIS officer finds facts that provide a basis for a “reasonable belief” that the applicant misrepresented the purpose of his or her travel to the U.S. at the time of entry or at the time of the visa application, the officer could determine that the applicant made a willful misrepresentation of a material fact. This determination can subject the applicant to a denial of adjustment and a permanent ground of inadmissibility.

What must employers be ready to address?

  1. USCIS is not receiving sufficient funding to staff and train employees for the increased numbers of interviews required due to this mandatory interview change. Thus, realistically the interview mandate could add many months if not years to the timeline to acquire permanent residence. USCIS provided a chart as of August 1, 2017 outlining an inventory of pending I-485 employment based cases pending at USCIS service centers as field offices. That chart reflects the following pending employment based numbers (numbers below are as of end of July 2017):

a. First Preference – 21,407 compared to a total for 2016 of 27,780.

b. Second Preference – 4,732 compared to a total for 2016 of 16,115.

c. Third Preference – 1,607 compared to a total for 2016 of 10,976.

  1. These delays may require additional applications for travel and work authorization and extension of nonimmigrant status for H and L nonimmigrants, as applicable. In addition, new options for permanent residence may arise due to such delays.
  2. As to nonimmigrant visa planning to change status or apply for adjustment, each case must be reviewed in light of the new FAM provisions on misrepresentation noted. A decision must be reached whether to delay any such actions post admission.
  3. Consider the consular processing alternative to adjustment of status within the U.S. In some cases, shifting to a consular immigrant visa application may be a better choice.
  4. The increased use of social media vetting by the DOS and USCIS must also consistently be reviewed regarding the intent upon entry issue as well as the accuracy of data placed in applications or petitions for immigration benefits. Take note of the September 18 Federal Register notice of the Department of Homeland Security (DHS),which notes that as of October 18, 2017 that even relatives of those receiving benefits under the INA as well as U.S. legal permanent residents and naturalized U.S. citizens records may include social media handles and aliases, associated identifiable information, and search results.
  5. Prepare complete documentation of status for any adjustment applicant to show compliance with status related to adjustment eligibility.

The take aways for review are:

  • Legal counsel should be considered strongly for in person interviews and for stringent vetting in advance before choosing the adjustment path.
  • An applicant’s social media should be vetted for contradictory information related to adjustment eligibility and qualifications as well as intent at entry to the U.S. or at the time of visa application.
  • Consular processing, even with its numerous warts including consular non-reviewability, may begin to appear more attractive as expected delays in USCIS processing mount as well as errors in business based adjudications.
  • Based on the revision to material misrepresentation at entry policy, counsel may recommend further delays or changes in processing options for cases.