Visas

Trump Administration Relies on Questionable Visa Overstay Reports to Crack Down on Legal Immigration

By Peek & Toland on July 18, 2019

The Trump administration is justifying its new restrictions on legal immigration, such as concerning international students, temporary workers, and visitors, on a controversial Department of Homeland Security (DHS) FY 2018 Entry/Exit Overstay Report. Relying on the DHS report is problematic for various reasons.

First, the DHS report as to the number of people who overstayed their visas is not accurate. Instead, it contains both individuals who overstayed their visas and those arrivals whose departures DHS could not verify., which significantly increases the number of people in the report. A departure might go unverified for various reasons, such as if the individual remained in the U.S. according to a different valid visa. Some individuals also might pass away, adjust to lawful permanent resident status, or be deported by DHS. Looking at broader statistics on overstays, furthermore, there has been a downward, not an upward trend in overstays, so the DHS report is misleading in this respect.

Trump Administration Relies on Questionable Visa Overstay Reports to Crack Down on Legal Immigration

Another issue with the DHS report is that many of the “overstays” included in their statistics are not documented overstays. Instead, there is evidence that as many as half the “overstays” cited in this report are no longer present in the U.S.

Finally, the Trump administration has relied on “negative” trends in the DHS report, yet wholly ignored “positive” trends in the report. For example, the administration uses the alleged 6.19% overstay for F-1 visa international students in FY 2016 as justification for making it easier to deport these students, even if they inadvertently lose their legal status. However, the report shows that the overstay rate for F-1 visa holders declined 42% between FY 2016 and FY 2018, dropping from 6.19% to 3.59%. Given this significant drop in the number of overstays, even if the numbers are correct, it is difficult for the administration to justify increased efforts to further reduce the overstay percentage of this group of visa holders. When facing any immigration issue, you are likely to need the legal advice that only experienced Texas immigration attorneys can offer you. Peek & Toland regularly provides strong legal representation for individuals, families, and businesses who are dealing with immigration problems. It is our priority to represent your interests and protect your rights.  Call us at (512) 474-4445 and schedule an appointment to speak with us today.

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Changes to Public Charge Rule Drastically Increase Number of Denied U.S. Immigrant Visas

By Peek & Toland on July 17, 2019

Reuters is reporting that denials of U.S. visas have increased drastically following a change in the “public charge” rule by the Trump Administration. This rule states that if visa applicants could become a public charge, or reliant on the U.S. government for financial assistance through taxpayer support. Changes to this policy that took place in January 2018 have given State Department officials more considerable discretion to deny visas on public charge grounds.

Not so coincidentally, this policy change occurred on the heels of a Department of Homeland Security (DHS) proposing a rule to restrict immigration because the individuals might become public charges. This controversial proposal drew hundreds of public comments during the required notice and comment period. As a result, the efforts of the DHS to enact this policy increased drastically. Some have suspected that the State Department policy change was nothing more than an attempt to avoid the high-profile rulemaking process that DHS must go through and still achieve the same result. The State Department has enacted the same proposal as DHS, thus effectively bypassing any oversight by the public.

Changes to Public Charge Rule Drastically Increase Number of Denied U.S. Immigrant Visas

The State Department policy change has resulted in litigation in a federal court in Maryland. The federal government is arguing that its policy changes are not subject to procedural rules that require public notice and comment or court review.

Furthermore, even when visa applicants are providing what previously would have been adequate proof that they will be financially independent, such as affidavits for support from family members in the U.S. and proof of employment in the U.S., however, these individuals nonetheless are receiving denials of their visa applications. Denials of visas on public charge grounds have increased significantly since January 2018 when the State Department policy went into effect. Denials based on public charge grounds rose to almost 13,500 for fiscal year 2018, which is the highest total since 2004 and quadruple the number of such rejections for fiscal year 2017. The immigration attorneys of Peek & Toland have the experience that you need when you are seeking any relief or benefit under federal immigration laws. We will determine the facts and evidence that are relevant to your case, evaluate your options, and help you decide the best course of action for your situation. We intend to place you in the best position possible to achieve your goals. Contact our Texas immigration attorneys at our office today and learn how we can assist you through this complicated situation.

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Most Popular RFEs for H-1B Visa Applications

By Peek & Toland on June 22, 2019

U.S. Citizenship and Immigration Services (USCIS) has released a listing of its top ten reasons for issuing Requests for Evidence, or RFEs, to H-1B visa applicants. The number of RFEs that USCIS has issued over the past year has grown exponentially. In the first quarter of FY 2019 alone, USCIS issued RFEs to 60% of H-1B visa applicants, as compared to less than 30% in the same quarter of the previous fiscal year.

According to USCIS, the most common reason for issuing an RFE in response to a H-1B visa application was the failure of the employer to establish that the position for which the visa is sought qualifies as a specialty occupation. The employer must provide evidence that the job not only requires highly specialized knowledge, but also at least a bachelor’s degree, or its equivalent. Employers normally should provide USCIS with a detailed job description containing job duties and responsibilities, as well as the educational requirements. There must be a clear link between the job duties and the education necessary to carry out those job duties.

Most Popular RFEs for H-1B Visa Applications

Furthermore, USCIS often will issue an RFE to employers who fail to provide adequate evidence that they have a valid employer-employee relationship with the visa beneficiary, or the foreign worker. If the employee will be placed at a third-party worksite, the employer must demonstrate that it will retain authority over the employee and the job duties that he or she is performing through the entirety of the work period. Typically, employers should have a signed employment contract that delineates the rights and responsibilities of all parties involved.

Another common reason for USCIS to issue an RFE to a H-1B visa applicant is an alleged failure to establish that the H-1B visa beneficiary who is to work at a third-party worksite will perform specific duties related to the specialty occupation during the requested period of employment. In other words, the employee must have specific assignments and contracts in place prior beginning work, not simply expect that the employee will perform work as it arises. These are just a few of the common justifications for USCIS issuing RFEs in response to H-1B visa petitions. At Peek & Toland, we care about helping you obtain through your immigration problems. We will focus our efforts on advocating on your behalf and representing your interests throughout the immigration process. Our knowledgeable immigration lawyers know the best strategies for gathering documentation to support your goals. Allow us to handle your immigration law case by sitting down with us today and discussing your situation.

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Federal Government Increasingly Denies Work, Family, and Student Visas

By Peek & Toland on June 20, 2019

While most media coverage has focused on immigrants with no legal immigration status present in the U.S. and deportation, U.S. Citizenship and Immigration Services (USCIS), along with the State Department, quietly have been denying more and more visa applications. Specifically, between FY 2017 and FY 2018, the number of denials of applications for legal permanent residency has increased 39%. The number of denials of temporary work visas, such as the H-1B visa, also increased by five percent.

Other denials have increased over the past year, as well. The number of student visas approved by the federal government declined, as did the number of visas granted for Chinese business and tourism, immediate family members, and fiancés.

Federal Government Increasingly Denies Work, Family, and Student Visas

Furthermore, the State Department has ruled four times as many immigrants as being “ineligible” for entry to the U.S., on the grounds that they may become a “public charge.” DHS also has announced its intent to expand the “public charge” rule to use against immigrants seeking entry. Potentially, reliance on any public safety net program, such as Medicaid for children or food stamps, would result in ineligibility for those immigrants were they to apply for legal permanent residency in the future.

Additionally, USCIS is increasingly requesting additional evidence from H-1B visa applicants. In the first quarter of FY 2019, USCIS issued “Requests for Evidence” (RFE) for 60% of the applicants, whereas in the first quarter of FY 2019, it issued RFEs for less than 30% of the applicants.

The bottom line is that even though the Trump administration appears primarily focused on the eradication of immigrants with no lawful status from the country, it also is making it far more difficult for students, workers, and family members of immigrants to come to the U.S. Our goal is to assist you with your immigration concerns, whether family or business-based. We can evaluate your situation and develop the strategy that is most likely to be efficient and effective in your case. Regardless of the immigration matter that you are facing, the attorneys of Peek & Toland have the experience, knowledge and reputation that you want and need to advocate on your behalf. When results matter most, contact us at (512) 474-4445.

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H-4 and H-1B Visa Holders Remain in Limbo

By Jeanine Stone on June 19, 2019

Under an Obama administration-era rule, spouses of H-1B visa holders who are applying for legal permanent residence, or a green card, gained work authorization that generally was renewable from one year to the next. This rule allowed these spouses, present on H-4 visas, to get a job and further their own careers while in the United States. The ability to obtain work authorization also has been a selling point to recruit workers to come to the U.S. on H-1B visas; not only can H-1B visa holders bring their spouses and minor children with them to the U.S., but the spouses also can work. As a testament to the success of the program, there have been over 91,000 approved applications for work authorizations for H-4 visa holders.

H-4 and H-1B Visa Holders Remain in Limbo

The Trump administration announced its intention to revoke the work authorization for spouses of H-1B visa holders long ago. In February, however, as promised, the Department of Homeland Security (DHS) submitted a proposed regulation to the Office of Management and Budget (OMB) that would remove work authorization from H-1B visa holder spouses. Until the rulemaking process is complete, the work authorizations for these spouses remain in place, but both H-1B visa holders and their spouses remain in limbo indefinitely, waiting to find out whether a final rule will go into place.

For some couples, the inability of the H-1B visa holder’s spouse to work is a deal breaker. In other words, some couple state that they would not have come to the U.S. if they knew that one of them would not be able to work. Many individuals also feel like the U.S. government has unfairly changed the rules in the middle of the game. These couples are awaiting their green cards and doing everything that they are supposed to, and now, one of the spouses suddenly cannot work to support the family or pursue a career. For the many couples that live in large cities that are known for the high number of tech jobs, the cost of living is high, and may be unreasonable if both spouses cannot work and contribute to household expenses. Our Texas immigration lawyers are here to offer you the experienced legal representation and advice that you need in order to resolve your immigration law matter. We can act as your guide through the complicated immigration process to obtain the relief that you are seeking. Call our office today and learn about the type of assistance we can offer you.

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DHS to Issue Additional 30,000 H-2B Visas to Fill Seasonal Jobs

By Peek & Toland on June 12, 2019

On May 8, 2019, the Department of Homeland Security (DHS) and the Department of Labor (DOL) published a final temporary rule that authorizes an increase to the cap on H-2B nonimmigrant visas for federal fiscal year (FFY) 2019. Specifically, the rule allows for up to 30,000 additional visas beyond the cap that they previously set for this classification of visa through the end of FFY 2019, or September 30, 2019.

To take advantage of these additional visas, American business owners must affirm that they are likely to suffer irreparable harm, or permanent and severe financial losses, if they do not receive the number of H-2B visas that they requested. U.S. Citizenship and Immigration Services (USCIS) will grant these visas only for returning workers, or those who had H-2B visas in at least one of the last three fiscal years (2016, 2017, or 2018. The increased number of H-2B visas available does not apply to petitions not subject to the H-2B visa cap, such as those filed relative to a H-2B extension of stay request.

To be eligible for these visas, employers must meet the following criteria:

  • Employment start dates for the requested visas must be on or before September 30, 2019.
  • Comply with all existing H-2B visa requirements, including obtaining a temporary labor certification from DOL that is valid for the entire employment period
  • If filed 45 days or more after the work start date, conduct a new round of U.S. worker recruitment
  • Affirm under perjury that irreparable harm will occur if the employer is not granted all the requested visas and that all visas requested are for returning workers

Employers can continue to request premium processing at an additional cost, but USCIS will not begin the premium processing procedures until it determines from the petitions received in the first five business days of the filing period whether a lottery is needed and conducts that lottery. If approved by USCIS, the worker then would have to obtain the H-2B visa abroad at a local consular post before seeking entry to the U.S. at a port of entry.

No matter the type of immigration issue you are facing, the skilled and knowledgeable immigration lawyers of Peek & Toland are here to assist you. We handle many different types of immigration cases every day and have the kind of strategic experience and skills that are necessary to reach the desired outcome. By calling our office as quickly as possible after your legal issue arises, we will have the best opportunity to successfully resolve your immigration law case.

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U.S. Government Reveals Reasons for Delays in Processing H-1B Visa Applications

By Peek & Toland on April 29, 2019

U.S. Citizenship and Immigration Services (USCIS) recently released data showing the most common reasons for the high rates of delays in the processing and denials of H-1B visa applications. These visas are designed to allow highly-skilled foreign nationals to work for companies in the U.S.

Overall, the rate of H-1B visa approvals dropped from 96% in 2015 to 85% in 2018. Similarly, delays in the processing of these visas rose by 60%, due to the federal government’s “requests for evidence” to prove the legitimacy of the visa applications. Furthermore, delays in processing made it much more likely that USCIS ultimately would deny an H-1B visa request. The approval rate for delayed applications fell to 60% by 2018, as compared to 80% in 2015.

U.S. Government Reveals Reasons for Delays in Processing H-1B Visa Applications

The top reason given by USCIS for issuing requests for evidence from visa applicants is a failure of the petitioners to establish that the positions qualify as specialty occupations. Although the technology industry has heavily relied on H-1B visas to hire foreign nationals with special skills, the visa program has come under attack as being abused by outsourcing companies and used to replace American workers with cheaper foreign labor.

Other common reasons for USCIS issuing requests for evidence, thus slowing the processing of H-1B visa applications, include a failure of the applicant to prove the existence of a valid employer-employee relationship with the foreign national or qualifying off-site work for the foreign national in a specialty occupation for the entire duration of the visa requested. Another common reason for delays in processing was the failure of an employer to prove that the foreign national was qualified to perform the services in a specialty occupation.

At Peek & Toland, we care about helping you obtain through your immigration problems. We will focus our efforts on advocating on your behalf and representing your interests throughout the immigration process. Our knowledgeable immigration lawyers know the best strategies for gathering documentation to support your goals. Allow us to handle your immigration law case by sitting down with us today and discussing your situation.

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State Department Visa Denials Greatly Increased in 2018

By Peek & Toland on April 28, 2019

A recent Forbes article highlighted new data from fiscal year (FY) 2018, which shows that federal government policies that have hindered legal immigration have caused a significant decrease in the number of visas granted. Among other policies, “extreme vetting” of visa applicants, the Buy American and Hire American executive order, and changes to the State Department’s definition of “public charge” all have led to more potential immigrants receiving visa denials.

According to the National Foundation for American Policy, between FY 2017 and 2018, visa denials increased 39% for immigrants and five percent for non-immigrants, or those seeking only temporary visas. These denials resulted in the federal government issuing seven percent fewer temporary visas and five percent fewer immigrant visas during the same time period.

State Department Visa Denials Greatly Increased in 2018

These statistics also show that the number of denials based on “public charge” grounds increased over 300% during this time period, which is directly attributable to the administration’s changes in the policies in the State Department’s Foreign Affairs Manual. This amounted to 13,450 denials of visas on this basis. Almost 8,000 individuals were able to overcome the initial denial, but an unknown number of those are traceable to denials from previous years, rather than from the time period at issue. Plus, those who successfully overcame the initial visa denial simply could show new evidence, such as evidence of increased incomes since the time of the denial.

From the perspective of American businesses seeking to hire foreign workers, “extreme vetting” procedures have caused workers with approved temporary employment petitions to remain stuck in administrative procedures for months and months. This has an adverse economic effect on the U.S. economy. The more cases stuck in administrative processing results in even longer delays for immigrants seeking to enter the country for both employment and family-based reasons. Peek & Toland dedicates a large part of its practice to helping both individuals and businesses resolve their immigration-related issues. Immigration law is a complex, ever-changing area of the law that necessitates legal advice from experienced immigration lawyers who keep up-to-date with all relevant changes in law and policy. We will work with you to achieve the most positive outcome possible in your situation. Call our office today and set up a consultation with our skilled immigration attorneys today.

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DHS Publishes Final Rule for H-1B Visa Process

By Peek & Toland on April 19, 2019

The Department of Homeland Security (DHS) has published the final rule that makes significant changes to how it will choose which H-1B visa applications it will grant that are subject to an annual cap. H-1B visas historically have allowed U.S. employers to hire highly specialized foreign national employees in industries like biotechnology, but the number of visas available each year is limited to 65,000, plus an additional 20,000 spots for foreign nationals with advanced degree from U.S. colleges and universities. Changes to the rule became effective on April 1, 2019 and are designed to prioritize those foreign nationals with American advanced degrees, reduce the overall costs of the H-1B visa program, and further protect the jobs of U.S. workers.

Before the changes to the rule, the 20,000 slots designated for advanced degree-holders were filled first, followed by the remaining 65,000 visas. Now, the randomized selection process will be used to first fill the general 65,000 visas, followed by the 20,000 designated slots. DHS officials forecast that the rule changes could result in up to 5,340 additional postgraduate degree-holders from American educational institutions filling these spots than before.

DHS Publishes Final Rule for H-1B Visa Process

This is only one of several changes that DHS intends to implement by the end of the 2019 to ensure that H-1B visas are granted only to the most highly specialized foreign workers. For example, DHS also intends to launch an online portal for employers to participate in the H-1B visa process, including the completion of an extensive questionnaire. By 2020, employers also must file a separate petition for each foreign national whom they intend to hire, as opposed to the current practice. No matter the type of immigration issue you are facing, the skilled and knowledgeable immigration lawyers of Peek & Toland are here to assist you. We handle many different types of immigration cases every day and have the kind of strategic experience and skills that are necessary to reach the desired outcome. By calling our office as quickly as possible after your legal issue arises, we will have the best opportunity to successfully resolve your immigration law case.

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What Should I Do if My Visa is Denied?

By Peek & Toland on March 28, 2019

With increasing security measures and other policy changes put into place by the Trump administration, individuals seeking all types of visas are seeing more and more denials of their applications. For example, when applications were deficient or missing information in the past, U.S. Citizenship and Immigration Services (USCIS) simply sent applicants a notice of the deficiency and gave them an opportunity to remedy it. Now, a Trump administration-era policy change permits USCIS officers to simply deny these applications with no prior notice. For these individuals who receive visa denials, their only recourse may be to start over and reapply. This obviously can add months or years to the application process, as well as thousands of dollars in additional fees.

Although reapplication may be the only way to seek a visa, repeatedly reapplying for a six-month visitors’ visa may be a bad idea. Rather, taking time between applications to figure out what caused the denial in the first place may be more productive then simply reapplying immediately using the same information that already has resulted in a denial. For example, if you received a denial because you had insufficient proof of your ties to your current country of residence, then you should take the time to develop this evidence prior to reapplying for a visa.

 

What Should I Do if My Visa is Denied?

Similarly, if you are denied a student visa by the consulate, you should ask specifically what resulted in the denial of your visa application. If you can correct the problem, then you can reapply for a student visa, perhaps successfully.

In the case of a denial to change your status from one visa to another, you must act quickly by consulting a lawyer and applying for reconsideration. If you fail to do so, you risk being placed in deportation proceedings if your original visa has run out. Unless you have some other legitimate basis for being in the U.S., you will be asked to voluntarily depart by a certain date or face deportation.

The immigration lawyers of Peek & Toland have handled the legal representation of countless individuals facing various immigration-related issues. We are here to protect your rights and advocate on your behalf in order to get the best outcome possible in your case. Call our office today at (512) 474-4445 to set up an appointment with our immigration attorneys today.

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