USCIS Proposed Rule on Removal of the International Entrepreneur Parole Program

On May 25th, 2018 US CIS proposed a rule to remove the International Entrepreneur Parole Program. The Department believes that it represents an overly broad interpretation of parole authority, lacks sufficient protections for U.S. workers and investors, and is not the appropriate vehicle for attracting and retaining international entrepreneurs. DHS is proposing to remove regulations published as part of the IE Final Rule. DHS concluded that the IE Final Rule created a complex and highly-structured program that was best established by the legislative process rather than relying on an unorthodox use of the Secretary’s authority to “temporarily” parole, in a categorical way, aliens based on “significant public benefit”. The proposed rule lays out several options for transitioning away from the International Entrepreneur Parole Program and requests comments on the various options. The proposed rule would withdraw all changes to the Form I-131 and Form I-765 approved with the final rule on entrepreneur parole published at 82 FR 5238 on 01/17/2017, discontinue the new Form I-941, and withdraw all changes to the Form I-9 that were approved in connection with the final rule. Comments are due 6/28/18.

USCIS Announces Temporary Increase in H-2B Cap for Remainder of FY2018

USCIS has announced that an additional 15,000 H-2B visas will be available for FY2018 and that Secretary Nielsen determined there are not sufficient, qualified, U.S. workers available to perform temporary non-agriculture labor to satisfy the needs of American businesses in FY2018.

This allocation is in addition to the 66,000 visas already issued this year. In the FY 2018 Omnibus spending bill, Congress authorized the Secretary to increase the number of H-2B visas through the end of the fiscal year. Congress did the same in the FY 2017 Omnibus.

Automatic Termination of Optional Practical Training for F-1 Students If They Transfer to a Different School or Begin Study at Another Educational Level

USCIS issued a reminder to all F-1 students on Optional Practical Training (OPT) that transferring to another school or beginning study at another educational level (for example, beginning a master’s program aercompleting a bachelor’s degree) automatically terminates their OPT as well as their corresponding employment authorization document (EAD ).

Although authorization to engage in OPT ends upon transferring to a different school or changing educational level, students in F-1 status will not be otherwise affected as long as they comply with all requirements for maintaining their student status.

These requirements include not working with a terminated EAD, because termination means that students are no longer authorized to work in the United States. Working in the United States without authorization has serious immigration consequences, including removal from the country and bars on reentry. Furthermore, remaining in the United States in violation of lawful nonimmigrant status could lead to an accrual of unlawful presence which includes another set of penalties under the Immigration and Nationality Act.

USCIS Announces Policy Manual Updates on EB-5 Tenant Occupancy and Adjustment of Status Interview Waivers

US CIS announced that it issued two Policy Manual updates.

  • The first revises guidance on EB-5 cases involving tenant occupancy. USCIS will no longer accept tenant-occupancy models for filings on or after 5/15/18.
  • The second revises guidance regarding adjustment of status interview guidelines and interview waivers. The update removes employment-based and fiancé(e)-based adjustment cases from the list of types of adjustment of status cases in which USCIS might waive the interview.

USCIS Announcement About Processing Errors on Form I-751

US CIS announced that due to a processing error on 5/4/18, USCIS mailed biometric services appointment notices with incorrect Application Support Center locations to petitioners who filed Form I-751, Petition to Remove Conditions on Residence. USCIS will mail new notices to the impacted individuals.

Current Status of DACA

Lawsuits have been filed to block the termination of DACA. The first of these lawsuits was decided in January 2018, when a federal district court in San Francisco found that the administration’s termination of DACA was “based on a flawed legal premise.” The court in this case ordered DHS to once again begin accepting renewal applications, but did not require the agency to accept new applications for individuals who never had DACA.

In early May, Texas and six other states threw an additional wrinkle into the mix of cases by suing the Trump administration, attempting to halt DACA immediately rather than phasing it out. The small group of states in this case have a very sympathetic judge in Judge Hanen, who blocked the Obama administration from implementing expanded DACA and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) in 2014. If Judge Hanen were to side with Texas and rule that the federal government should end DACA immediately, there would be conflicting federal district decisions. This could result in any one of a number of scenarios playing out in the courts.