The SEVIS Status Verification at Ports of Entry

The SEVIS Status Verification at Ports of Entry Summary Based on news accounts, and preliminary contact with the Department of Homeland Security (DHS), it appears that DHS is instituting an interim policy of referring arriving F, M, and J nonimmigrants to secondary inspection, to ensure that individuals whose SEVIS records have been terminated are not readmitted without a thorough review of the students’ situation. This is an evolving issue. NAFSA is in contact with the relevant DHS components to verify the details of the procedures, and will update this page as more information becomes available. If you would like to tell NAFSA of specific experiences your students have had, log in to the NAFSA website and submit to NAFSA's Report and Issue in IssueNet. If you would like to talk with your colleagues about how they are responding to this on their campuses, log in to the NAFSA website and engage with them in NAFSA's International Student Advising Forum (ISTA). Background Current law requires all arriving travelers to be inspected by U.S. Customs and Border Protection (CBP) at a U.S. port of entry (POE) before being admitted to the United States. Immigration inspection at a POE consists of two inspections levels: primary and secondary. All arriving visitors pass through primary inspection, where a CBP inspector determines admissibility to the United States by reviewing the results of government database queries, examining travel documents, and conducting a brief interview. If the CBP officer at primary determines that there are no admissibility issues, and any other issues that might have arisen are successfully resolved, then the traveler will be admitted to the United States and permitted to proceed to collect their baggage. If the CBP inspector cannot determine admissibility in the limited time available in primary inspection, the arriving visitor is referred to secondary inspection, where other CBP officers can take more time to investigate, perform additional information system queries, more thoroughly examine documents, and interview the traveler in greater detail, without delaying the flow of travelers in the primary inspection area. In the case of individuals tracked in the Student and Exchange Visitor Information System (SEVIS), the status of the traveler's SEVIS record is relevant to CBP’s decision regarding admissibility to the United States. CBP would ideally be able to see in primary inspection whether a traveler's SEVIS record has been terminated, and if so, refer the traveler to secondary inspection where a thorough review of the case could be done to determine whether or not the SEVIS record termination is an accurate indication of the traveler's current status and admissibility. Although SEVIS is updated with record terminations in real-time, the “lookout” that should be generated in CBP systems as a result of the termination may not be immediately available to CBP systems, and in most cases the workstations in primary inspection do not have direct access to SEVIS itself. DHS plans to bridge this gap by better integrating its information systems, and providing all CBP inspectors with access to SEVIS data. In the meantime, based on news accounts and preliminary contact with DHS, it appears that DHS has instituted an interim policy of referring all arriving F, M, and J students, including students who have never had a SEVIS record termination, to secondary inspection where SEVIS can be accessed, to ensure that individuals whose SEVIS records have been terminated are not readmitted without a thorough review of the students’ situation. NAFSA has inquired with the relevant DHS components to verify the details of the procedures, and will update this page as more information becomes available. http://www.greencardapply.com/news/news13/news13_0517.htm www.greencardapply.com www.greencardfamily.com

The SEVIS Status Verification at Ports of Entry

The SEVIS Status Verification at Ports of Entry Summary Based on news accounts, and preliminary contact with the Department of Homeland Security (DHS), it appears that DHS is instituting an interim policy of referring arriving F, M, and J nonimmigrants to secondary inspection, to ensure that individuals whose SEVIS records have been terminated are not readmitted without a thorough review of the students’ situation. This is an evolving issue. NAFSA is in contact with the relevant DHS components to verify the details of the procedures, and will update this page as more information becomes available. If you would like to tell NAFSA of specific experiences your students have had, log in to the NAFSA website and submit to NAFSA's Report and Issue in IssueNet. If you would like to talk with your colleagues about how they are responding to this on their campuses, log in to the NAFSA website and engage with them in NAFSA's International Student Advising Forum (ISTA). Background Current law requires all arriving travelers to be inspected by U.S. Customs and Border Protection (CBP) at a U.S. port of entry (POE) before being admitted to the United States. Immigration inspection at a POE consists of two inspections levels: primary and secondary. All arriving visitors pass through primary inspection, where a CBP inspector determines admissibility to the United States by reviewing the results of government database queries, examining travel documents, and conducting a brief interview. If the CBP officer at primary determines that there are no admissibility issues, and any other issues that might have arisen are successfully resolved, then the traveler will be admitted to the United States and permitted to proceed to collect their baggage. If the CBP inspector cannot determine admissibility in the limited time available in primary inspection, the arriving visitor is referred to secondary inspection, where other CBP officers can take more time to investigate, perform additional information system queries, more thoroughly examine documents, and interview the traveler in greater detail, without delaying the flow of travelers in the primary inspection area. In the case of individuals tracked in the Student and Exchange Visitor Information System (SEVIS), the status of the traveler's SEVIS record is relevant to CBP’s decision regarding admissibility to the United States. CBP would ideally be able to see in primary inspection whether a traveler's SEVIS record has been terminated, and if so, refer the traveler to secondary inspection where a thorough review of the case could be done to determine whether or not the SEVIS record termination is an accurate indication of the traveler's current status and admissibility. Although SEVIS is updated with record terminations in real-time, the “lookout” that should be generated in CBP systems as a result of the termination may not be immediately available to CBP systems, and in most cases the workstations in primary inspection do not have direct access to SEVIS itself. DHS plans to bridge this gap by better integrating its information systems, and providing all CBP inspectors with access to SEVIS data. In the meantime, based on news accounts and preliminary contact with DHS, it appears that DHS has instituted an interim policy of referring all arriving F, M, and J students, including students who have never had a SEVIS record termination, to secondary inspection where SEVIS can be accessed, to ensure that individuals whose SEVIS records have been terminated are not readmitted without a thorough review of the students’ situation. NAFSA has inquired with the relevant DHS components to verify the details of the procedures, and will update this page as more information becomes available. http://www.greencardapply.com/news/news13/news13_0517.htm www.greencardapply.com www.greencardfamily.com

EB-1 Petition Analysis: Kazarian vs USCIS - Discrediting the Circularity Arguments (Part 1)

EB-1 Petition Analysis: Kazarian vs USCIS - Discrediting the Circularity Arguments (Part 1) The decision in Kazarian v. USCIS goes a long way in discrediting the circularity argument that the USCIS often deploys to shoot down petitions filed under the Extraordinary Ability category (EB1A). Even though the petitioner lost in this case, the new re-issued decision is still a victory for those who wish to seek green cards as persons or extraordinary ability or as outstanding professor or researchers. Kazarian essentially holds that a petitioner claiming extraordinary ability need not submit extraordinary evidence to prove that he or she is a person of extraordinary ability. If one of the evidentiary criteria requires a showing of scholarly publications, the petitioner need not establish that the scholarly publications in themselves are also extraordinary in order to qualify as a person of extraordinary ability. This is a circular argument, which Kazarian appropriately shot down. Layer Bernie Wolfsdorf decided to take on this hopeless case pro bono after it was first denied in 2009. Nobody thought that the Ninth Circuit panel would even agree to review the case again. The whole purpose of seeking review of the decision was not to overturn the denial, but to request the Court of Appeals in the Ninth Circuit to remove, or rather discredit, the circular reasoning of the USCIS with respect to accepting evidence to prove extraordinary ability that was not required by the regulation. They believed that by removing this reasoning in Kazarian, it would give the USCIS Service Centers less ammunition to deny EB-1 petitions by rejecting evidence that can otherwise prove that one is a person of extraordinary ability. In Kazarian case, the main bone of contention was what constitutes “authorship of scholarly articles in the field.” In the original decision, Kazarian v. USCIS, the Ninth Circuit agreed with the Appeals Administrative Office (AAO) that “publication of scholarly articles is not automatically evidence of sustained acclaim; we must consider the research community’s reaction to those articles.” The Court in Kazarian 1 acknowledged that this reasoning “may be circular, because publication, on its own, indicates approval within the community.” However, the Court went on to justify the AAO’s circular reasoning probably unmindful of the adverse impact that it would have for future EB-1 petitioners, “Because postdoctoral candidates are expected to publish, however, the agency’s conclusion that the articles must be considered in light of the community’s reaction is not contrary to the statutory mandate that the alien have achieved “sustained national or international acclaim.” It was precisely this reasoning that the petitioner Kazarian’s new brief, along with the amicus brief of the American Immigration Council attacked, on the ground that it was inconsistent with the governing regulation, 8 CFR § 204.5(h)(3)(vi), which simply states, “Evidence of the alien’s authorship of scholarly articles in the field, in professional or major trade publications or other major media.” The regulation does not require consideration of the research community’s reaction to those articles, which was essentially an invention of the USCIS. Fortunately, the new decision in Kazarian acknowledged the AAO’s faulty reasoning, which Kazarian affirmed, and the following extract from the decision is worth noting: “The AAO’s conclusion rests on an improper understanding of 8 CFR § 204.5(h)(3)(vi). Nothing in that provision requires a petitioner to demonstrate the research community’s reaction to his published articles before those articles can be considered as evidence, and neither USCIS nor the AAO may unilaterally impose novel substantive or evidentiary requirements beyond those set forth at 8 CFR § 204.5. " It is hoped that the USCIS pays heed to the Kazarian court’s admonition of its flawed circularity analysis and stops insisting on evidence that has no basis in its own regulations. Deserving petitioners claiming extraordinary ability who benefit the United States ought to be able to gain permanent residence without jumping through needless hoops and hurdles. http://www.greencardapply.com/news/news13/news13_0603.htm www.greencardapply.com www.greencardfamily.com

EB-1 Petition Analysis: Kazarian case for Extraordinary Ability and Outstanding Researcher/Professor (Part 2)

EB-1 Petition Analysis: Kazarian case for Extraordinary Ability and Outstanding Researcher/Professor (Part 2) The EB1-Extraordinary Ability (EA1A or EB1-EA) and EB1 Outstanding Researcher or Outstanding Professor(EB1B or EB1-OR) category has high standards for successfully obtaining approval. These two EB1 categories have become even more difficult, in large part due to a change in the way supporting evidence is analyzed by the USCIS. An explanation of the approach is set forth in an USCIS memorandum, relying on a case entitled Kazarian v. USCIS. The history of USCIS changes and the current, controversial, two-step analysis described in the USCIS memorandum are described here. The USCIS policy memo entitled, Evaluation of Evidentiary Criteria in Certain I-140 Petitions, provides instructions to USCIS adjudicators of Extraordinary Ability, Outstanding Professor or Researcher, and Exceptional Ability I-140 petitions. This memo outlines a two-step adjudication analysis based on the decision by the Court of Appeals for the Ninth Circuit in Kazarian v. USCIS. The USCIS issued a final memo on December 22, 2010. An interim memo previously issued on April 18, 2010 contained the same guidelines for adjudication of the affected types of petitions. The memo instructs USCIS adjudicators to use an approach to evidence evaluation referenced in the Kazarian case. This review consists of a "two-part approach where the evidence is first counted and then considered in the context of a final merits determination." The USCIS first evaluates the evidence presented to determine whether the initial evidentiary requirements are met - fitting within the listed categories of evidence pertinent to the requested immigration category. The second part of the analysis essentially involves reviewing the evidence as a whole to determine whether the foreign national meets the overall eligibility standard for the category. Since the Kazarian case, and the issuance of the interim and final memos, USCIS adjudicators and the Administrative Appeals Office (AAO) have been applying these instructions narrowly, interpreting them as requiring the application of the second part of the "Kazarian approach" in every case. This has resulted in large numbers of petition denials that potentially were approvable prior this change. The memo purports to base the guidance it contains on the Kazarian decision. The two-step framework for the analysis, however, was established earlier by other federal court decisions. The court in the Kazarian case did not have to apply two steps, as it found that the petitioner did not meet the required initial evidentiary criteria in the Extraordinary Ability category. As such, the holding in that case was not related to the two-step adjudication framework. Instead, the court warned that the USCIS was not to "unilaterally impose novel substantive or evidentiary requirements." This essentially means that the USCIS is supposed to review the evidence under the legal and regulatory criteria, as stated, and not put their own "spin" on the requirements by relying on the decision's dicta. In the Kazarian case, the court did not reach the second step in the analysis, as the petitioner did not sufficiently meet the initial evidentiary criteria. The trend involves a final adjudication from the USCIS using the second step in its analysis in most cases, without regard to the findings made during the initial review of the evidence. In many cases where the USCIS determines that the petitioner meets the initial evidentiary requirements, denials still are issued. This is due to the second step, wherein the USCIS often determines that the evidence, taken in totality, does not show that the petitioner has reached the level of accomplishment required for the requested classification. Adjudication trends since the issuance of the USCIS memo concern many in the immigration community. The USCIS interpretation of the Kazarian decision has altered long-standing adjudication principles. http://www.greencardapply.com/news/news13/news13_0610.htm www.greencardapply.com www.greencardfamily.com

Do I have the Status Problem after the J1 Visa Expiration and Before the H-1B Approval?

Question: As a visiting scholar, my J1 visa will expire at the end of this month. A company wants to hire me as a research engineer, and has applied the H1B visa for me to change the status. Due to the H1B visa yearly gap, the H1B application is pending, and I can work for the company only after October 1, 2013. Do you think I may have the status problem after the J1 visa expiration and before the H1B approval? -------------------------------------------------------------------------------- Answer: To qualify for the H-1B visa approval to change your status from J1 to H-1B in the United States, you need to keep a legal nonimmigrant status on October 1, 2013. Since your J1 visa will expire at the end of this month, USCIS may approve the company's H-1B petition for an alien's worker, but you may not be able to change your status from J1 to H-1B in the United States. If that situation happens, after the H-1B petition is approved for the employer, you need to travel to your home country to get the H-1B visa on your passport at an U.S. Embassy, and then return to U.S. to work for this company. http://www.greencardapply.com/question/question13/question13_0602.htm www.greencardapply.com www.greencardfamily.com

The No "Successor-in-interest" Nature for Corporate Changes by Merger or Acquisition

Question: I am in a unique situation. I have filed for my H1B through company A and pretty recently got a 3 year extension too. I also have an approved Labor and I-140 through them. This May the company had an asset only acquisition and is now operating under a new name and Employee ID. Since we are all open to file our I-485 I contacted my immigration lawyer and explained the company reorganization. At first the lawyer was claiming that we should file an Amended I-140 due to the reorganization. My company lawyer informed my Immigration Lawyer that the new company has not taken over the liabilities of the old company, it only took over the assets. Now my immigration lawyer claims that I will have to transfer my H1B to the new company and move forward with my original I-485 application and then port after 180 days. I wanted to get a second opinion from someone on this board. -------------------------------------------------------------------------------- Answer: An amended H-1B petition is required, if your current employer undergoes a manger or acquisition AND if the new company does NOT "succeed the interest and obligations of the petitioning employer", and your employment conditions have changed. The corporate changes by merger or acquisition with no "successor-in-interest" nature will have affect on the H1B employee's status. For your case, your company lawyer informed your immigration lawyer that the new company has not taken over the liabilities of the old company, which means that the acquisition is not "succeed the interest and obligations of the petitioning employer", so your current employer needs to inform the USCIS for this changes which will affect your H1B status. http://www.greencardapply.com/question/question13/question13_0609.htm www.greencardapply.com www.greencardfamily.com

how to file the financial sponsorship for his Green Card application.

Help Desk: I am a U.S. citizen, and my boy friend is from Nepal. He came here as a tourist and stayed illegal now for 11 months. We would like to get married in New York City soon. I want to know how to file the financial sponsorship for his Green Card application. Thank you. -------------------------------------------------------------------------------- Answer: Because you are a U.S. citizen, and your boy friend was inspected by the USCIS when he entered the U.S., he will be eligible to process his Green Cad application inside U.S. once you are married. A U.S. citizen or legal permanent resident can be the Sponsor of a family based immigration petition. However, the Sponsor has to meet some requirements and legal obligations. The Sponsor has to execute a legally binding affidavit of support for the beneficiary, in which the Sponsor guarantees to maintain the standard of living of the intending immigrant at a level not lower than 125% of the national poverty level. This obligation continues until the beneficiary has become a U.S. citizen, or has worked in the United States for 40 qualifying quarters. http://www.greencardfamily.com/question/question2013/question2013_0609.htm www.greencardapply.com www.greencardfamily.com