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Longstanding U.S. Citizenship & Immigration Services Policies Reviewed and Reversed by Trump Administration With Substantial Effect on Applicants for U.S. Permanent Residence

September 7, 2017

Two longstanding policies adhered to by U. S. Citizenship Services have been reversed by the Trump administration and the U.S. Department of Justice.

On August 28, 2017, U.S. Citizenship and Immigration Services (USCIS) published a notice advising that it will expand the use of in-person interviews for those applying for permanent residence in the United States. Specifically, the change will affect adjustment-of-status (i.e., "green card") applicants who are filing for U.S. permanent residence based on full-time employment offers, as well as refugee-asylee relative petition applicants in the United States who are petitioning to join a principal asylee or refugee applicant.

This change will take effect on October 1, 2017. USCIS did not clarify whether the change will affect cases already "in the pipeline" or only those cases filed and receipted after October 1, 2017. USCIS noted that it also plans an incremental expansion of interviews to other benefit types as well.

This policy change is significant. For close to 20 years, USCIS has largely waived personal appearances by applicants for permanent residence who were foreign nationals sponsored by a U.S. employer through the labor certification process, multinational executive/managerial transfers, and others (except when foreign nationals might have had criminal records or other inconsistencies in their applications).

USCIS linked the policy change to the Presidential Directive and Executive Order 13780, "Protecting The Nation From Foreign Terrorist Entry into the United States," and states that its updated policy will further improve detection and prevention of fraud, while enhancing the integrity of the immigration system. Over the past two decades, USCIS in-person interviews of employment-based applicants have been waived by USCIS, with the exception of those foreign nationals who might have criminal records or other inconsistencies in their applications. Requiring in-person interviews is likely to cause further delays in processing of adjustment-of-status applications, because USCIS currently may not be prepared with examiners who are proficient in reviewing and making determinations regarding the varied types of submitted petitions and residence applications.

Employers are advised to assure that their foreign national population maintains in parallel their nonimmigrant status for the duration of the case, and to retain employment verification records, including tax filings, paystubs and the like to provide evidence of continued maintenance of legal status that individuals can present at interviews. Maintenance of legal status is considered a prerequisite for the benefit of receiving a favorable decision in the adjustment-of-status process. At interviews, the USCIS is also likely to scrutinize immigration records preceding current employment, including student status, trainee or exchange visitor status.

There is a second policy change that represents a substantial and surprising divergence from previous USCIS practice. The agency has begun to deny applications for advance parole (international travel authorization) if an applicant for adjustment-of-status leaves the United States while a renewal application for advance parole is pending.

Individuals are authorized to apply for advance parole - essentially, travel authorization - while their adjustment-of- status (i.e., "green card") cases are pending. Because some nonimmigrant visa categories require only "non-immigrant intent," once an individual applies for US permanent residence and evidences "immigrant intent," his or her existing visa (i.e. O, P, E, TN and others) is no longer considered valid. As a result, if a person needs to leave the United States while a green card application is pending, that individual may apply for advance permission to re-enter the United States, or be "paroled" into the country, after completing a trip abroad.

Not all green card applicants require this advance permission to travel because the "dual intent" doctrine permits one to travel without first securing an advance parole. Thus, many individuals apply for advance parole as a "backup" strategy while continuing to travel in parallel on their H, K l or V visas. These nonimmigrant visa holders may continue to have their advance parole renewals processed, regardless of international travel, or whether they were outside the U.S. when USCIS made a decision on the advance parole renewal request.

Now, however, USCIS has stated that it will implement a long-ignored instruction on Form I-131, which states that if one departs the United States before the advance parole document is issued, an application for an advance parole would be considered abandoned. Therefore, a denial would ensue.

If the agency issues a denial of advance parole, the affected individual can renew his or her application with no prejudice. The denial has no impact on an existing H, L O or V visa, nor on the permanent residence application or the current advance parole document. Additionally, the USCIS will not impose a filing fee to renew and advance parole application.

For employers, these policy changes mean that they will have to take greater care in determining the visa categories their foreign national employee population holds, timing of travel and possible restrictions on travel before an individual receives new advance parole documentation (if applicable). While a person's residence case will not be not jeopardized by a denial of advance parole, it would be best to consult with legal counsel if there are any doubts.

Our Immigration practice group will continue to monitor and report on developments in this area.

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