Irish immigrants should know their rights and consult an immigration attorney if they find themselves trying to avail of these US visas. 

We continue to see policy changes at the United States Citizenship and Immigration Service (USCIS) which could have an adverse effect on Irish immigrants.  Recent reviews of published data have revealed that there has been a dramatic increase in the amount of H1B denials at the USCIS.

The H-1B is a visa which allows U.S. employers to employ foreign workers in specialty occupations.

Then at the end of June, the USCIS published a new memorandum stating that the USCIS may issue a Notice to Appear to applicants who had filed for an immigration benefit, an extension of status or a change of status.

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Previously those who were denied a benefit like a change or extension of status merely departed or in some cases had already departed. Under the new policy, a Notice to Appear in immigration court may be issued directly by the USCIS. The failure to appear for removal proceedings carries a 5-year ban on re-entry to the US.  Although it might be possible to apply for a waiver of this bar, there is no guarantee a waiver would be approved.

Reminder: Unlawful Presence now applies to students & exchange visitors in the #USA on F, M or J nonimmigrant visa holders. #DontGetBarred! https://t.co/fCJc9gTzie #BeInformed #BePrepared #IrishDiaspora #GlobalIrish pic.twitter.com/BpgRqvWCL8

— CIIC (@IrishCoalition) September 6, 2018

A person could remain in the US and fight the deportation order if it is issued, but that could take years.  A key problem with this scenario is the person is deemed “unlawfully present” during that time. If “unlawfully present” for more than one year, the person faces a ten-year bar if ultimately failing in immigration court and deported.

This policy change can affect people in the following examples:

  • A person here on a B visitors visa filing for an extension or change of status to a J trainee or F student visa,
  • A person here on a J trainee visa filing for a change of status to a B visitors visa,
  • A person here on an H1b professional worker visa filing for an extension.

Attorneys and advocates across the country are unified in their opposition to this policy change.  For example, it is difficult to justify the placing in deportation proceedings of a doctor who comes to work at a Boston Hospital on an H1B visa who simply wants to continue working here.

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Our next free weekly immigration legal clinic is tomorrow evening at 4pm, here at One State Street. We are following changes in immigration policy, and at clinic you can receive a free and confidential consultation with staff and volunteer attorneys. https://t.co/5T7BRuFNIv

— IIIC (@iiicenter) August 6, 2018

Attorneys are advising all immigrant workers to take all possible precautions to make sure their work visas are filed and adjudicated to completion before the person-existing status expires so that if the petition is denied the person will still be in another status and can avoid a Notice to Appear.

With the policy change, attorneys are advising employers to file at the earliest possible date.  Petitions may be filed up to six months ahead of the work start date. Extension requests can be filed up to six months ahead of the visa expiration date.

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Change of status and extension of status

As we near the end of summer each year, we hear from people seeking information on work visas, on changing status from J1 to B visas or filing for extensions. In light of the information above, it is recommended that people have an attorney or immigration specialist review their situation before filing any paperwork at the USCIS offices.

Kieran O’Sullivan is a counselor at the Irish Pastoral Center in Boston and a native of Co. Kerry, who has worked on immigration issues since 1996.  

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