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Staying Abroad Too Long May Affect Eligibility for Naturalization

In general, to qualify for naturalization, you must have resided continuously in the U.S. for at least 5 years, as a permanent resident, to become eligible for naturalization. An exception is if you are a qualified spouse of a U.S. citizen, in which case your continuous residence must be at least 3 years to qualify for naturalization.

You must also maintain continuous residence from the time you file the Form N-400 up to the time of naturalization (i.e. take the naturalization oath and become a U.S. citizen).

Normally, you may file your naturalization application up to 90 days before reaching the 3/5-year continuous residence period. This is known as the 90 day early filing period.

Your LPR status begins when USCIS approves your adjustment application or when you are admitted to the U.S. on an immigrant visa. For certain groups, the start date of becoming an LPR may be earlier than the actual approval of the status (commonly referred to as a “rollback” date). For example, USCIS generally considers an asylee’s date of admission as an LPR to be one year prior to the date the adjustment application was approved.

Breaks in Continuity of Residence

Continuous residence involves your maintaining a permanent dwelling place or principal residence in the United States over the period of time required by the statute. The federal regulation defines residence as your domicile or principal actual dwelling place, without regard to your intent. The duration of your residence is calculated from the time you first establish residence in a particular location.

Thus, if you list a foreign residence and no concurrent U.S. physical address on the naturalization application, during the 3/5-year statutory period, you could face problems meeting this requirement.

If you broke the continuity of residence because you stayed abroad too long, you may not file your naturalization application as early as 90 days before you meet the continuous residence requirement.

Continuous residence relates to the time you resided lawfully in the U.S. without any single absence long enough to “break” continuity for naturalization. There are two types of absences from the U.S. that break the continuity of residence for purposes of naturalization:

1.  Absence of more than 6 months but less than one year is presumed to break the continuity of residence.

Example: Melinda is absent from the U.S. from September 19, 2017 to June 26, 2018. Her absence of 280 days is presumed to break the continuity of residence because it lasted more than six months. Any time spent in the U.S. prior to September 19, 2017 presumably does not count toward her continuous residence.

She may, however, rebut the presumption of a break in continuous residence to be eligible for naturalization. She must provide evidence showing she did not disrupt her continuous residence during her stay abroad, such as keeping her job in the U.S. and not obtaining employment while abroad; maintaining a physical residence in the U.S. to which she retained full access (e.g. own or lease a home); and having immediate family members or strong family ties in the U.S.

Eligibility After Break in Continuous Residence (due to absence of more than 6 months but less than one year): Rebut presumption OR Wait at least until 6 months before reaching the end of the new statutory period

If the applicant is unable to rebut the presumption of a break in continuous residence, she must establish a new period of continuous residence to be eligible for naturalization.

Thus, if Melinda does not rebut the presumption of a break in continuous residence, she must wait until at least 6 months from reaching the 5-year anniversary of the new statutory period following her return to the United States. In this example, the new statutory period began on June 26, 2018, which is when Melinda returned to the United States. The earliest she may apply (or re-apply) for naturalization is December 26, 2022, i.e. at least 6 months from the end of the relevant statutory period.

2. Absence of one year or more (without an approved Form N-470, Application to Preserve Residence for Naturalization Purposes) absolutely breaks the continuity of residence.

Example: Jonas was absent from the United States from December 11, 2014 to January 11, 2016. His absence of 396 days absolutely breaks the continuity of residence because it lasted more than a year. Any time spent in the U.S. prior to December 11, 2014 does not count toward his continuous residence.

Unless the applicant has an approved  Form N-470, Application to Preserve Residence for Naturalization Purposes, USCIS must deny a naturalization application for failure to meet the continuous residence requirement if the applicant has been continuously absent for a period of 1 year or more during the statutory period. A Form N-470 preserves residence for LPRs who have qualifying employment abroad with the U.S. government, private sector, or a religious organization.

Eligibility After Break in Continuous Residence (due to absence of one year or more): Four Years and One Day | Two Days and One Day OR Four Years and Six months | Two Years and Six Months

When there is an absolute break in continuous residence due to absence of one year or more:

You must wait at least 4 years and 1 day after re-entering and continuously residing in the U.S. to file for naturalization, if you are subject to the 5-year continuous residence requirement. (Once 4 years and 1 day have passed from the date of your return to the United States, the period of absence from the United States that occurred within the past 5 years is now less than 1 year.)

You must wait at least 2 years and 1 day after re-entering and continuously residing in the U.S. to file for naturalization, if you are subject to the 3-year continuous residence requirement. (Once 2 years and 1 day have passed from the date of your return to the United States, the period of absence from the United States that occurred within the past 3 years is now less than 1 year.)

Merely counting out 4 years and 1 day or 2 years and 1 day from your return to the U.S. — following an absence of 1 year or more — is not sufficient to determine whether you meet the continuous residence requirement. Because the period of absence within the past 5 years (or 3 years) is still more than 6 months, you must also overcome the presumption of a break in continuous residence.

But if you wait to apply for naturalization at least 4 years and 6 months (or 2 years and 6 months) after returning to the United States and reestablishing residence, there would not be a presumption of a break in residence. The reason is the period of absence preceding the N-400 application date is now less than 6 months.

How Absence from the United States During the Statutory Period Affects Eligibility to Naturalize:

Duration of AbsenceMust Applicant Overcome Presumption of a Break in the Continuity of Residence?Eligible to Naturalize?
6 months or lessNo *(See Note 1 below)Yes
More than 6 months but less than 1 yearYesYes * (See Note 2 below)
1 year or more (without USCIS approval via N-470 process)Not eligible to applyNo

*NOTE 1:  Absences of less than 6 months may also break the continuous residence depending on the facts surrounding the absence. An example is if you claimed nonresident alien status to qualify for tax exemptions or if you failed to file income tax returns because you consider yourself a non-resident alien.

*NOTE 2: If you are unable to rebut the presumption of a break in continuous residence, you must wait to apply for naturalization at least 6 months before reaching the end of the relevant statutory period. Example: if you returned to the United States on June 26, 2018, following an absence of more than 6 months but less than 1 year — and you’re unable to rebut the presumption of a break in continuous residence — the earliest you may apply (or re-apply) for naturalization is December 26, 2022.

Length of Time Needed to Re-Establish Eligibility for Naturalization and Residence in the United States Following An Absence of 1 Year or More:

ProvisionAbsence During Statutory PeriodMay Apply for Naturalization After…
INA 316
5-year statutory period
More than 1 year4 years and 6 months, OR 4 years and 1 day (but must overcome presumption of break in continuous  residence)
INA 319
3-year statutory period
More than 1 year2 years and 6 months, OR 2 years and 1 day (but must overcome presumption of break in continuous residence)

Permanent dwelling place in the U.S.

You must have the intent to maintain lawful permanent resident status and consider all absences from the U.S. to be fixed, temporary visits abroad. Lengthy or frequent absences from the U.S. may result in a denial of naturalization due to  abandonment of LPR status.

USCIS will consider the entire period from the LPR admission until the present when determining whether you meet the continuous residence requirement. It will focus mostly on whether you maintained continuous residence (permanent dwelling place) in the United States during the statutory period.

If you have taken a trip outside the U.S. that lasted 6 months or more since becoming a permanent resident, you should have evidence that you continued to maintain a permanent dwelling/physical address in the United States and kept ties to the U.S. during your absence.

Frequent trips or stays abroad, even when each lasted less than six months, can also create problems. If you’re not able to show your principal actual dwelling place is in the United States or show residence within the United States for the statutory period, USCIS may find that you do not meet the continuous residence requirement, even if all of your individual absences were under 6 months.

For more information on eligibility for naturalization, read our related article, 5 Questions to Ask Yourself Before You File for Naturalization (U.S. Citizenship). Consult a U.S. immigration attorney to verify when you may file for naturalization, especially if you had a trip abroad lasting more than 6 months during the statutory period.

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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SEVP Modifies COVID-19 Exemptions for F-1 and M-1 Students: In-Person Classes Required in Fall 2020

On Monday, July 6, the Student and Exchange Visitor Program (SEVP) announced changes to the exemptions for F-1 and M-1 students taking online classes due to the pandemic. Under the new policy, international students may not remain in the U.S. to take a full online course load in Fall 2020 without accruing unlawful presence and being subject to removal (deportation) proceedings. F-1 and M-1 visas or admissions to the U.S. in such status will not be given to students enrolled in schools and/or programs that are fully online for the fall semester.

What is the New Policy?

The SEVP is part of the U.S. Immigration & Customs Enforcement (ICE). A July 6 announcement on ICE’s website lists the changes to temporary exemptions for the fall 2020 semester:

1. Nonimmigrant F-1 and M-1 students attending schools operating entirely online may not take a full online course load and remain in the United States. The U.S. Department of State will not issue visas to students enrolled in schools and/or programs that are fully online for the fall semester nor will U.S. Customs and Border Protection permit these students to enter the United States. Active students currently in the United States enrolled in such programs must depart the country or take other measures, such as transferring to a school with in-person instruction to remain in lawful status. If not, they may face immigration consequences including, but not limited to, the initiation of removal proceedings.

2. Nonimmigrant F-1 students attending schools operating under normal in-person classes are bound by existing federal regulations. Eligible F students may take a maximum of one class or three credit hours online.

3. Nonimmigrant F-1 students attending schools adopting a hybrid model — that is, a mixture of online and in person classes — will be allowed to take more than one class or three credit hours online. These schools must certify to SEVP, through the Form I-20, “Certificate of Eligibility for Nonimmigrant Student Status,” certifying that the program is not entirely online, that the student is not taking an entirely online course load this semester, and that the student is taking the minimum number of online classes required to make normal progress in their degree program. The above exemptions do not apply to F-1 students in English language training programs or M-1 students pursing vocational degrees, who are not permitted to enroll in any online courses.

Schools are instructed to update their information in the Student and Exchange Visitor Information System (SEVIS) within 10 days of the change if they begin the fall semester with in-person classes but later switch to only online classes, or a nonimmigrant student changes course selections, and as a result, ends up taking an entirely online course load.

What are the Effects of the New Policy?

F-1 students pursue academic coursework while M-1 students pursue vocational coursework in the United States.

U.S. federal regulation at 8 CFR 214.2(f)(6)(i)(G) states that F-1 students may take only one online class or 3 credits per session, term, semester, trimester or quarter that count toward their degree or full course of study requirement. 8 CFR 214.2(m)(9)(v) states M-1 students may not count online courses toward a full course of study.

An online course is one that does not require physical attendance for classes, examination or other activities integral to course completion. It is offered primarily through the use of television, audio, or computer transmission.

Previous COVID-19 Exemptions

On March 9, 2020, SEVP issued guidance titled Coronavirus Disease 2019 (COVID-19) and Potential Procedural Adaptions for F and M nonimmigrant students. This prior policy allowed F and M students to continue studies by taking online courses in the spring and summer semesters to meet federal regulations. It allowed them to take more online courses during the COVID-19 pandemic than what is permitted by federal regulations.

There was no requirement prohibiting a full online course load or any other restrictions for F and M students enrolled and already in the U.S. The SEVP permitted schools to change their procedures to comply with state or local state health emergency rules. Schools were not required to give prior notice of these changes and only had to report changes to SEVP within 10 business days.

Updated COVID-19 Exemptions

As of Fall 2020, the updated policy makes in-person classes mandatory for F and M students to meet the full-time course study requirements. This is a shift from the more flexible COVID-19 exemptions that SEVP gave to schools and students for the spring and summer semesters of 2020.

Nonimmigrant Students in the United States

Current F and M students may not take a full online course load and remain in the United States without violating the law. If students find all their courses will be online, they must leave the country or seek to maintain their status such as by requesting authorization for a reduced course load or switching to a school that offers in-person classes. Students who fall out of status and accrue unlawful presence are subject to being put in removal proceedings before an Immigration Court.

Normal In-Person Classes

If the school offers normal in-person classes, F students must comply with federal regulation by taking only one online class or 3 credit hours per session, term, semester, trimester or quarter.

Hybrid Model with In-Person and Online Classes

If the school offers a hybrid model with a combination of in-person and online classes, F students may take more than one online class or three credit hours online.  What this really means is that the class includes a mix of online lectures or activities and in-person lectures or activities. Hybrid schools must certify on the Form I-20 that the program is not fully online, the student is not taking an entirely online course load, and the student is taking the minimum number of online classes for Fall 2020 to make normal progress.   

No Online Classes for F-1 Students in English Language Training Programs or M-1 Students

None of the exemptions for taking online classes, including the hybrid model, are allowed for F students in English Language training programs or for M-1 students pursuing vocational degrees.  The regulations at 8 CFR 214.2(f)(6)(i)(G) and 8 CFR 214.2(m)(9)(v) do not permit online classes for such students.

[UPDATE, July 15, 2020: U.S. district judge Allison D. Burroughs announced on Tuesday, July 14, that the Trump Administration had agreed to back down in a lawsuit over the policy filed by Harvard University and the Massachusetts Institute of Technology. Previous COVID-19 exemptions — which allow foreign students to remain in the U.S. to study even if their classes have all moved online — will continue to apply. The new policy will apply only to incoming students.]

Nonimmigrant Students Outside the United States

The U.S. Department of State (U.S. Embassies and Consulates) will not issue F and M visas to applicants who plan to attend schools that offer courses entirely online in Fall 2020.

Even if they have a valid F or M visa, students will not be admitted to the United States by CBP if all the program-related courses are online only for Fall 2020.

Form I-20 Updates

F and M students must get an updated Form I-20, Certificate of Eligibility for Nonimmigrant Student Status, stating the school is not operating in full online courses mode and the student is not taking full online courses for Fall 2020 semester. This information goes in the Remarks field of the I-20.

SEVP plans to re-issue I-20s for Fall 2020 within 21 business days of the announcement (i.e. by August 4, 2020). Priority will be given to fall 2020 students arriving from outside the United States.

Current F-1 students with approved Curricular Practical Training (CPT) during program studies or with approved Optional Practical Training (OPT) or STEM OPT after program completion may remain in active status and continue their training.

Continuing F and M students, whose schools offer only online courses for Fall 2020, can keep active status if they stay outside the United States and take full online courses to meet visa requirements. They must get a new I-20 indicating they are abroad taking a full course load as the school is offering only online courses for Fall 2020.

Conclusion

The updated policy is not fully clear and schools are awaiting further guidance from SEVP, ICE. The student visa restrictions were introduced soon after the pandemic-related suspension on H, L and J visa and certain immigrant visas.

With the ending of the temporary exemptions that were granted back in March, F and M students may not lawfully remain in the United States if their school goes fully or, in some cases, partly online. To maintain status or to receive a visa or entry to the United States, the student has to take in-person classes or, in the case of F-1 students, classes that involve a mix of in-person and online attendance.

Schools that planned to operate remotely, in COVID-19 times, might need to rethink their strategy to keep their F and M students. Schools that do not at least offer a hybrid model of in-person and online classes will face a significant loss in revenue (tuition and fees from international students).

The updated policy could serve as a catalyst for colleges and universities to reopen campuses, as states continue to lift restrictions that were implemented to curb the spread of the novel coronavirus. There is flexibility in that schools may use hybrid models that are not 100% online to keep F-1 students.

Some international students might not want to bear exposure to the virus by attending classes in person. But, under the new rule, this is unavoidable if they wish to maintain their status or to obtain an F-1 or M-1 visa and be admitted to the United States for the Fall 2020 semester.

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Work Permit Fraud May Lead to Visa Revocation, Visa Denial and INA 212(a)(6)(C)(i) Inadmissibility

On June 26, Weiyun “Kelly” Huang, owner of the fictitious companies, Findream LLC and Sinocontech LLC, was sentenced to 37 months in federal prison for conspiracy to commit visa fraud. Her companies provided false employment verification records to foreign nationals seeking F-1 or H-1B visa status.

The U.S. Immigration & Customs Enforcement (ICE) played a key role in the investigation, which created ripple effects on persons who received F-1 or H-1B work authorization by presenting a job offer letter, payroll records or other employment verification documents from Findream or Sinocontech.

F-1 and H-1B Work Authorization Requires Legitimate Employment

An F-1 visa allows an international student to study in the United States at a university or other academic institution.  F students may engage in practical training during their academic program or after it ends. Curricular Practical Training (CPT) and Optional Practical Training (OPT) are the two types of training that provide work experience related to the field of study.

Eligible students may apply for up to 12 months of OPT employment authorization before completing their academic studies (pre-completion) and/or after completing their academic studies (post-completion). All periods of pre-completion OPT, however, are deducted from the available period of post-completion OPT.

The OPT employment can be part time (at least 20 hours per week on post-completion OPT) or full time; involve multiple short-term employers, contract work, self-employment, or agency work; and be paid or unpaid (as a volunteer or intern, as long as labor laws are not violated). The student must report all employment to their Designated School Official (DSO) to maintain status.

While a job offer is not required to apply for OPT, the student may not have a cumulative total of 90 days of unemployment during the 12-month OPT period. Otherwise, they fall out of status and begin to accrue unlawful presence.

Students may apply for an additional 24 months of OPT if they have a degree and are employed in a STEM (Science, Technology, Engineering or Mathematics) field. For the 24-month STEM OPT extension, the DSO requires the student to have an existing job offer from a U.S. employer and to submit a completed Form I-983 (training plan) that is signed by the student and employer.

Section 3 to Section 6 on the Form I-983 requests information on the company, the agreed-upon practical training schedule and compensation, and the formal training plan, respectively. Unlike regular OPT employment, STEM OPT employment must be paid.

An H-1B visa allows U.S.-based employers to temporarily employ foreign nationals in specialty occupations. Foreign nationals with H-1B status may stay in the U.S. for three years, with the possibility of extending their stay for a total of six years. H-1B status may be extended beyond the six-year limit in certain situations, such as when 365 days or more have passed since the filing of an application for labor certification or immigrant petition (Form I-140) for the beneficiary.

F-1 students with a timely filed H-1B petition and change of status request, and whose F-1 employment authorization will expire before the change of status to H-1B occurs (typically October 1), may be eligible for a cap-gap extension in the United States. In many cases, the OPT employment or STEM OPT employment is what allows the F-1 student to change to H-1B status without departing for visa processing at the U.S. Consulate.

ICE Investigations of Work Permit Fraud Schemes Continue

ICE’s crackdown on F-1 and H-1B visa fraud schemes spell trouble for international students and foreign national workers who use fake job offers to obtain F-1 OPT, F-1 STEM OPT, F-1 CPT, or H-1B status.

ICE may conduct on-site visits to confirm the visa holder is actually working for the employer and performing the appropriate duties. When little-known companies like Findream and Sinocontech show a high number of F-1 OPT and STEM OPT workers, this can prompt further investigation.

In March 2019, the United States filed a criminal complaint against the owner of Findream, with an affidavit from an FBI Special Agent stating it was a company on paper only, with no actual physical presence, and was created for the purpose of providing false verifications of employment to F-1 visa holders seeking to extend their stay in the U.S. via the OPT program.

The indictment stated that Huang advertised Findream as a “startup company in technology services and consulting,” with clients in China and the U.S.  She used a China-based website, “Chinese Looking for Job,” and a China-based WeChat platform, “Job Hunters of North America,” to advertise Findream and Sinocontech to F-1 visa holders in the U.S. seeking employment and H-1B visas.

The companies did not deliver any technology or consulting services, or employ any of the individuals who responded to the ads, the indictment stated. In exchange for a fee, Huang and the companies provided job offer letters and employment verification letters as proof of employment, the charges alleged. Falsified payroll records and tax forms were also said to be provided.

According to the indictment, the fraud scheme allowed at least 2,685 customers to list Findream or Sinocontech as their employer to extend their F-1 status. Subsequently, many F-1 and H-1B visa holders, particularly from China, had their visas revoked or denied or were refused entry to the United States (following travel abroad) because they had listed Findream or Sinocontech to receive work authorization.

These types of ICE investigations are ongoing. Recent reports indicate that F-1 students, most from India, have received notifications from U.S. Consulates that their visas have been revoked because they used job offer letters from Integra Technologies LLC and AZTech Technologies LLC to obtain OPT, STEM OPT and, in some cases, CPT work permits.

Through consultations with applicants, we have learned that F-1 and H-1B visa holders, most from India and China, are being refused admission at the U.S. port of entry if they previously held work authorization by association with suspicious companies, such as Integra Technologies, AZTech Technologies, and Tellon Trading, Inc. Expedited removal orders and lifetime inadmissibility charges of fraud or misrepresentation are being made by CBP for this reason.

Data from ICE shows that Integra Technologies, AZTech Technologies, and Tellon Trading were 2nd, 6th, and 10th respectively, on the list of Top 200 Employers for OPT and STEM OPT Students, which includes well-known companies like Amazon, Intel, Google, Microsoft, Deloitte, Facebook and Apple. (NOTE: At least two other companies, Wireclass and Aandwill LLC, have been linked with Integra and AzTech.)

Fraud or Willful Misrepresentation of Material Fact to Obtain U.S. Immigration Benefits is a Permanent Inadmissibility Ground

Federal agencies including ICE and USCIS have made it a priority to deter and detect immigration fraud and have increased site visits, interviews, and investigations of petitioners who use the F-1 OPT and H-1B visa programs. One reason is to protect the “many American workers who are as qualified, willing, and deserving to work in these fields have been ignored or unfairly disadvantaged,” according to the agencies.

Submitting a bogus job offer letter, employment verification letter, payroll records or other documents to maintain or obtain F-1 or H-1B status creates the risk of a visa revocation or visa refusal. It may also lead to the denial of admission and an expedited removal order at the U.S. port of entry.

Whether the F-1 or H-1B visa holder knowingly pays a company for false employment verification is sometimes unclear. The pattern involves the company initiating contact with the beneficiary and requesting payment of a “training fee” at the outset. The job offer or training program might seem real in the beginning. But at some point, it becomes obvious there is no real job.

Persons who claim to have a legitimate job offer to gain an F-1 extension or H-1B status — when there is actually no job — are subject to being found permanently inadmissible. When you present false employment verification records to show you performed job duties and got paid for such duties (in order to receive a visa or lawful status in the United States) you risk being charged with a lifetime inadmissibility ban under INA 212(a)(6)(C)(i)(fraud or willful misrepresentation of material facts to gain U.S. immigration benefits).

In unique situations, the person may challenge a section 212(a)(6)(C)(i) bar by filing a formal motion to reconsider with the appropriate agency, such as CBP or the U.S. Consulate. In most cases, the person will need a 212(d)(3) nonimmigrant waiver or Form I-601/INA 212(i) immigrant waiver.

The 212(d)(3) waiver has relatively flexible eligibility standards, which includes addressing the risk of harm to society if the person is admitted to the United States, the magnitude of the U.S. immigration violation that caused the inadmissibility, and the importance of seeking the visa. The Form I-601 waiver has stricter requirements because the person must have a qualifying relative (U.S. citizen or permanent resident spouse or parent) who will suffer extreme hardship if the person is not admitted to the United States.

If you are caught up in or benefited from an F-1 or H-1B visa fraud scheme, consult a qualified U.S. immigration attorney to discuss possible remedies. Ongoing and willful participation in the scheme might seem like a victimless offense, but it carries serious and permanent U.S. immigration consequences.

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Presenting Minnesota CLE live webcast, Thursday, July 2 at 12 pm: Finding Your Rhythm – When to Do What

On Thursday, July 2, join me on Zoom for a Minnesota CLE live webcast, Finding Your Rhythm: When to Do Focused Work, Process Emails, Brainstorm Ideas, and Make Decisions.

Attorneys routinely keep too many things on their to-do list, feel overwhelmed with busyness, and prioritize other people’s requests over their truly important tasks. They are often told to manage their time better, multitask more, work smarter, or put in longer hours to get more done. But attempting to keep up with rising demands while neglecting to consider energy peaks and valleys create an unsustainable path to productivity. 

In this presentation, you will learn how to:

  • Work with your natural rhythm or internal body clock instead of burning yourself out or staying stuck  
  • Use your preferred sleep-wake cycle (circadian rhythm) and rest-activity cycle (ultradian rhythm) to plan your day
  • Choose the best times to perform high cognitive tasks, communicate with clients, spark insights, solve problems, and rest and recharge
  • Boost your energy level and reduce overwhelm by practicing simple daily habits 

Finding your rhythm will help you fulfill your ethical duties of diligence (Rule 1.3), competence (Rule 1.1) and communication (Rule 1.4).

This is a reprise of a webcast CLE that I presented back in December 2019, when most lawyers were commuting to the office instead of working from home or working remotely. In the midst of the pandemic shutdowns and restrictions, it’s especially important to find your rhythm and stay focused on what really matters. 

To register, click HERE

See you there,

Dyan Williams

U.S. Immigration & Legal Ethics Attorney
Author of The Incrementalist: A Simple Productivity System to Create Big Results in Small Steps, an e-book at http://leanpub.com/incrementalist

COVID-19 Update: Executive Order Extends Suspension of Entry of Certain Immigrants AND Suspends Entry of H-1B, H-2B, J and L Visa Applicants and Derivative Beneficiaries, Up to December 31

On June 22, President Donald Trump signed an Executive Order titled Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak. The suspension affects both immigrant visa and nonimmigrant visa applicants in certain categories. It is set to expire on December 31, and may be continued if deemed necessary.

Who Does the Executive Order Affect?

Effective immediately, the Executive Order continues the suspension of entry of certain immigrants to the United States up to December 31, 2020. To learn more about the prior order suspending immigration and the exemptions, which now remain in effect, see COVID-19 Update: Impact of Executive Order Temporarily Suspending Some U.S. Immigration for 60 Days, As of April 23.

From June 24, the Executive Order further prohibits the entry of nonimmigrants to the United States on an H-1B visa, H-2B visa, J  visa (for intern, trainee, teacher, camp counselor, au pair, summer work travel program) or L visa, and the spouses and minor children of such visa applicants or holders, who:

(a) are outside the United States on the effective date (June 24);

(b) do not have a nonimmigrant visa that is valid on the effective date; and

(c) do not have an official travel document other than a visa (such as a transportation letter, a boarding foil, or an advance parole document) that is valid on the effective date or any date thereafter that permits a request for admission at a U.S. port of entry.

If you do not have an H-1B, H-2B, J or L visa or accompanying or following-to-join visa (H-4, J-2 or L-2 visa) that is valid as of June 24, 2020, you will not be admitted into the United States during the suspension period (i.e. up to December 31, 2020). The exception is if you fall into a category that is exempted from the Order.

[UPDATE, July 23, 2020: The U.S. Department of State announced exceptions to the Presidential Proclamation may be given to the dependent spouses and children of certain visa class holders, such as H, J, and L visa holders who are already excepted from, or not subject to the suspension. The DOS will continue to issue H, L, and J  visas to otherwise qualified derivative applicants who are currently excepted or where the principal applicant is already in valid status in the United States.  If the H, L or J principal is in the U.S. in valid status, the dependent spouse or child may apply for their derivative visa at the U.S. Consulate and enter the U.S. If the H, L or J principal is outside the U.S. with a valid visa, the dependent spouse or child may apply for their derivative visas and enter the U.S. with the principal visa holder.]

Who is Exempted from the Executive Order?

Section 3(b) of proclamation states the Order does not extend to:

(1) Any lawful permanent resident of the United States.

(2) Any applicant who is the spouse or minor child of a U.S. citizen.

(3) Any applicant seeking to enter the United States to provide temporary labor or services essential to the U.S. food supply chain.

(4) Any applicant whose entry would be in the national interest as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.

The Secretary of State, the Secretary of Labor, and the Secretary of Homeland Security shall establish standards to define categories of applicants whose entry would be in the national interest, such as those who are critical to the defense, law enforcement, diplomacy, or national security of the United States; are involved with the provision of medical care to individuals who have contracted COVID-19 and are currently hospitalized; are involved with the provision of medical research at United States facilities to help the United States combat COVID-19; or are necessary to facilitate the immediate and continued economic recovery of the United States.  

What is the Stated Purpose of the Executive Order?

Trump said the Executive Order is needed to protect American workers in an economy severely affected by the COVID-19 outbreak.

The Order states overall unemployment rate in the United States nearly quadrupled between February and May 2020. It notes, “Under ordinary circumstances, properly administered temporary worker programs can provide benefits to the economy.  But under the extraordinary circumstances of the economic contraction resulting from the COVID-19 outbreak, certain nonimmigrant visa programs authorizing such employment pose an unusual threat to the employment of American workers.”

What is the Impact of the Executive Order?

Based on a plain reading, the Executive Order does not specifically prohibit the U.S. Consulate from accepting H-1B, H-2B, J or L visa applications or derivative visa applications. It also does not stop USCIS from adjudicating the underlying petition (e.g. Form I-129) that, if approved, allows the applicant to request the visa.

If a person pays the visa application fee and is scheduled for a visa interview, the U.S. Consulate is expected to process the application. If USCIS issues a receipt notice for the petition, it has a duty to process it.

But due to the newness of the Executive Order, ambiguities in the Order itself, and the lack of U.S. Department of State guidance, it’s uncertain whether the U.S. Consulate may or will issue such visas before the suspension period expires.  

In general, the Order is confusing in large part because it extends the previous order suspending the entry of certain immigrants, while creating a new suspension for certain nonimmigrants. Thus, lawful permanent residents are listed among the exempted group.

Without careful review, a reader might question why the Order mentions permanent residents when, at first glance, it seems to focus on just H-1B, H-2, J or L visa applicants and their derivative beneficiaries. The lawful permanent resident category is also not a true exemption because they do not fall into any immigrant visa category subject to the suspension. Instead, they have green cards to be lawfully admitted to the United States as permanent residents, not as intended immigrants.

Although the Order focuses on suspending entries to the United States instead of on prohibiting visa processing at U.S. Consulates, it contains a sentence stating, “The consular officer shall determine, in his or her discretion, whether a nonimmigrant has established his or her eligibility for an exception in section 3(b) of this proclamation.” This suggests the consular officer will need to determine an exception exists before it may issue the visa, before December 31, to an otherwise eligible applicant.

The Order mentions the applicant must have an”official travel document other than a visa (such as a transportation letter, a boarding foil, or an advance parole document) that is valid on the effective date or any date thereafter that permits a request for admission at a U.S. port of entry.” The examples of an “official travel document,” as listed in the Order, are normally reserved for lawful permanent residents. For example, permanent residents may obtain a boarding foil, valid for 30 days or less, for a single entry, from the U.S. Consulate if their green card has been lost, stolen or destroyed.

What is clear from the Order is that applicants and their derivative beneficiaries will be prohibited from entering the United States (up to December 31) if they are outside the country and do not hold a visa valid as of June 24.

While it is reasonable to assume the person may either have a valid visa as of June 24 or other official travel document as of June 24 or later — for entry to the U.S. during the suspension period — the Order is ambiguously worded. It seems to indicate you need both a visa and official travel document, which makes no practical sense. A reasonable person would conclude that only one is required, i.e. you need the travel document only if you do not have the visa, and vice versa.

The U.S. Customs & Border Protection (CBP) has long held authority to deny admission at the U.S. port of entry, even when the applicant holds a valid visa or other official travel document. Each time you request entry to the United States, you are subject to inspection by CBP.

The Order adds, “Within 30 days of the effective date of this proclamation and every 60 days thereafter while this proclamation is in effect, the Secretary of Homeland Security shall, in consultation with the Secretary of State and the Secretary of Labor, recommend any modifications as may be necessary.”

Persons who are already in the United States, in lawful status, should consider filing a request for extension or change of status, if eligible, instead of depart for consular processing. USCIS is performing mission critical duties even while Field Offices are still preparing to reopen to the public. The Order has no effect on Form I-485 applications for green card/permanent residence or Form I-129 petitions or Form I-539 applications for extension or change of status within the United States.

Avoid coming to the U.S. in another status purely to circumvent the Executive Order. For example, if you enter the U.S. on a B1/B2 visitor visa, for the purpose of changing to H-1B or L-1 status, this may be considered as fraud or willful misrepresentation of material fact to obtain a U.S. immigration benefit. This subjects you to being charged with a permanent inadmissibility ground under INA 212(a)(6)(C)(i). In that event, you may not obtain a new visa or change of status without the appropriate Form I-601 immigrant waiver or 212(d)(3) nonimmigrant waiver of inadmissibility.

The Order further states, “An alien who circumvents the application of this proclamation through fraud, willful misrepresentation of a material fact, or illegal entry shall be a priority for removal by the Department of Homeland Security.”

Consult an experienced U.S. immigration attorney to discuss how this Executive Order, prior Orders and other travel restrictions affect your case.

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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