USCIS Alert: F-1 “Cap-gap” Status and Work Authorization Extension Only Valid Through September 30, 2018
On Friday, September 28th , 2018, USCIS posted an alert reminding F-1 students, who have an H-1B Cap petition pending with USCIS as of October 01, 2018, risk accruing unlawful presence if they continue to work on or after October 1 , unless otherwise authorized to continue employment via alternative authorization.
USCIS noted that “cap-gap” work authorization is only valid through September 30th and the F-1 student is no longer authorized to work under the cap-gap regulations. USCIS noted that the F-1 student generally may remain in the United States while the change of status petition is pending without accruing unlawful presence, provided they do not work without authorization . If an F-1 student with a pending change of status petition has work authorization (such as an I-765 with valid dates) that extends past September 30, 2018, they may continue to work as authorized.
USCIS Will Begin Implementing New Policy Memo
On October 1, 2018, USCIS’s June 28, 2018 Notice to Appear (NTA) Memorandum will go into effect, with incremental implementation . The new policy allows US CIS to possibly issue an NTA “upon issuance of an unfavorable decision on an application, petition, or benefit request” and “the alien is not lawfully present in the United States.” An NTA (Notice to Appear) is a document that instructs an individual to appear before an immigration judge and is the first step in removal (deportation) proceedings.
The policy will be implemented incrementally; it will include but not limited to, Form I-485, Application to Register Permanent Residence or Adjust Status , and Form I-539, Application to Extend/Change Nonimmigrant Status . At this time, the NTA policy will not be implemented in regard to employment-based petitions and humanitarian applications and petitions .
The NTA’s will not be concurrently issued with denial notices but rather will provide adequate notice when an application for a benefit is denied. A recent USCIS teleconference suggested that NTAs will not be issued until the statutory period for an appeal has passed. If applicants are no longer in a period of authorized stay, and do not depart the United States, USCIS may issue an NTA.
USCIS Proposed Regulations on Public Charge Ground of Inadmissibility
On September 22, 2018, the U.S. Department of Homeland Security (DHS) posted an advance copy of the Notice of Proposed Rulemaking (NPRM) related to the public charge ground of inadmissibility. This proposed rule would change the standard that is used when determining whether an alien is likely at any time in the future to become a public charge, and is therefore inadmissible under section 212(a)(4) of the INA, ineligible for adjustment of status, or ineligible for admission or a visa . The rule would also make nonimmigrant aliens who are public charges generally ineligible for change of status and extension of stay .
The NPRM will soon be published in the Federal Register. Once published, the public may comment on the proposal within a 60-day comment period. After the comment period ends, DHS will carefully consider public comments and eventually publish a final rule in the Federal Register reflecting the date on which that final rule will go into effect.
USCIS Proposal for I-912 Fee Waiver Form Revision
USCIS is proposing to revise Form I-912, Request for Fee Waiver , to remove the receipt of means-tested benefits from the eligibility criteria . A means-tested benefit is a public benefit where eligibility for the benefit, the amount of the benefit, or both, is based on an individual’s income level. Eligibility for these benefits can vary from state to state, depending on the state’s income level guidelines. As a result, individuals who would not otherwise qualify under the poverty-guideline threshold and financial hardship criteria have been granted fee waivers by USCIS.
When requesting a fee waiver, an alien must clearly demonstrate that he or she is unable to pay the fees. With the proposed change, an alien may request a fee waiver if the documented annual household income is at or below 150 percent of the Federal Poverty Guidelines (FPG), or if the person can demonstrate financial hardship. The proposed form revision does not change the list of applications and petitions that are eligible for a fee waiver.
H-4 EAD Update: DHS Submits Status Update to Rescind Program
DHS submitted a status report to the D.C. Circuit Court of Appeals, indicating that final DHS clearance of the proposed rule to rescind the program that allowed employment authorization document (EAD) for qualifying H-4 spouse(s) will be submitted to Office of Management and Budget (OMB) within 3 months . The status report indicates that DHS’s intention to proceed with publication of an NPRM concerning the H-4 EAD Rule remains unchanged and that DHS continues to proceed in line with that intention.
Once the proposed rule (NPRM) is issued, a period of time will be given to the public to submit comments to DHS on the proposed rule and a final rule will issued thereafter. At this time, there is no guidance as how the rescission will occur and what will be the impact of existing or pending H-4 EAD applications. (Save Jobs USA v. DHS , 9/21/18)
EB-5 Regional Center Program Extended
On September 28, 2018, a short-term continuing resolution was signed by President Trump that prevented a government shutdown and extended the EB-5 Regional Center Program until December 07, 2018. The Continuing Resolution extends the EB-5 Regional Center Program without any changes.
Reminder: Premium Processing Fee Will Be Increased to $1410 on October 01, 2018
A reminder that the Premium Processing filing fee will be increasing to $1,410 from $1,225 on October 1, 2018. The fee increase is set to take effect on September 30, 2018. All applications postmarked on or after that date must include the new fee.
Premium Processing, filed on Form I-907, allows employers who pay an additional fee to request adjudication on certain employment based petitions within 15 calendar days. According to DHS the increase in the fee is accounting for inflation based on the Consumer Price Index. The last fee adjustment accounting for inflation was in 2010.
As a reminder, USCIS has extended the suspension of premium processing for FY 2019 H-1B cap petitions and extended it to other H-1B case types till February 19, 2019.
Please reach out to your Greenspoon Marder LLP Immigration & Naturalization Practice Group attorney for any further questions or concerns.
