C&R Archives

USCIS Imposes Stringent New “Public Charge” Requirements

Effective February 24, 2020, USCIS will begin imposing much more stringent requirements related to “public charge”. An individual who is deemed likely to become a “public charge” will be found inadmissible to the U.S.

USCIS defines a “public charge” as an individual who is likely to become “primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance, or institutionalization for long-term care at government expense.” In determining whether an individual meets this definition for public charge inadmissibility, a number of factors will be considered, including age, health, family status, assets, resources, financial status, education, and skills. No single factor will determine whether an individual is a public charge.

These new requirements will apply to all applicants for admission to the U.S., individuals who are seeking to adjust their status to that of lawful permanent resident (“green card”) in the U.S. and those who hold a nonimmigrant visa and are seeking to extend their stay in the same nonimmigrant classification or to change their status to a different nonimmigrant classification.

In order for USCIS to make a determination as to whether an individual will likely become a “public charge”, the government will now require the completion of a new, burdensome form (Form I-944) and the submission of extensive supporting documentation (including, but not limited to, the individual’s financial and educational documents) with any adjustment of status application. For applications for extension of stay or change of non-immigrant status, USCIS has revised existing forms to include specific questions regarding public charge. Supporting evidence will also be required for these applications.

We understand that these new requirements will make the already complex U.S. immigration process even more difficult and frustrating but we pledge to do our best to develop efficient practices and procedures to help our clients deal with these matters in the most efficient and cost-effective way possible.

Please contact our office if you have any questions.

 

Trump Administration Expands Travel Bans to Six Additional Countries 

On January 31, 2020, President Trump signed a Presidential Proclamation that expands the current travel ban to include certain nationals from Burma (Myanmar), Eritrea, Kyrgyzstan, Nigeria, Sudan, and Tanzania. The Proclamation is due to go into effect on February 21, 2020.

Nationals of Burma (Myanmar), Eritrea, Kyrgyzstan, and Nigeria, with some exceptions, will be barred from entering the U.S. as immigrants.  With respect to Sudan and Tanzania, the ban applies only to immigrants under the Diversity (“green card”) Lottery. Immigrants refers to those who are seeking admission to the U.S. on a permanent basis through family, employment or through the Diversity Lottery program.

The expanded travel ban does not apply to nonimmigrants, such as business visitors, tourists, students, exchange visitors, or temporary workers (e.g. H or L visa holders) from these countries.

The expanded ban applies to persons who are outside the U.S. on the effective date and who do not already have a valid U.S. immigrant visa that was issued before February 21, 2020.

Please contact our office if you have any questions.

 

USCIS Announces Registration Program for Cap-Subject H-1B Petitions

USCIS has confirmed that employers seeking to file cap-subject H-1B Petitions for employment to begin on October 1, 2020 must first complete an online registration providing basic information about the employer and the prospective worker.

The initial registration period commences on March 1, 2020 and ends on March 20, 2020.  A $10 fee is payable in order to register. A random selection process (if needed) will then be conducted and successful applicants will be invited to submit a complete H-1B Petition with supporting documentation. If an insufficient number of registrations are submitted to utilize all 85,000 H-1B numbers, an additional registration period will be announced.

In the coming weeks, the Service will provide additional guidance on the information required to submit a proper registration, as well as further details about the process.  We will pass along additional information as soon as it becomes available.

Please contact our office if you have any questions.

 

Important Update on the December 2019 Visa Bulletin

USCIS has determined that the “Dates for Filing Chart” on the Department of State Visa Bulletin may be used to determine eligibility to apply for Adjustment of Status in the U.S.  in an Employment-Based category.  Visa numbers are “current” for all four Employment-Based categories (EB-1 through EB-4) in the Worldwide* column.  Therefore, potential applicants in any of these categories who are otherwise eligible** may apply for Adjustment of Status in the U.S. if:

They have a PERM Labor Certification approved and are ready to file the I-140 Visa Petition, or

They have already established a Priority Date by filing an I-140 Visa Petition and the Petition has been approved or is pending, or

They are prepared to concurrently file an I-140 “Self-Petition” in the Extraordinary Ability (EB-1A) or National Interest Waiver (EB-2) category.

A properly filed Adjustment of Status application (I-485) allows the applicant to remain in the U.S. until a decision is made on the application, obtain an Employment Authorization document, and obtain an Advance Parole authorization to travel abroad and reenter the U.S. while the application is pending.

However, there may be significant restrictions on international travel before and after filing depending on the applicant’s nonimmigrant visa status.  These factors must be carefully considered before taking steps to file the I-485.
Family Preference Categories

On the family side, visa numbers are currently available in December in the F2A Category (spouses and children of Lawful Permanent Residents) from all countries.

*in December, Dates for Filing are current for all countries except China and India.

**generally, the applicant must have been lawfully admitted to the U.S. and maintained lawful nonimmigrant status since last arrival.  There is an important exception which excuses status violations of less than 180 days since the last arrival (Sec. 245(k) I&N Act) in the employment-based categories only.

Please contact our office if you have any questions.

 

Trump And His Invisible Wall

We’re not prone to sending our clients links to published articles, but this one caught our attention.

Rachel Morris wrote about the challenges that immigrants and their advocates are facing in the Trump era in the most recent Huffpost online.

Her article perfectly captures the behind the scenes efforts the administration is making, without Congressional action, to make the immigration system less user friendly:

In the two years and 308 days that Donald Trump has been president, his administration has constructed far more effective barriers to immigration. No new laws have actually been passed. This transformation has mostly come about through subtle administrative shifts—a phrase that vanishes from an internal manual, a form that gets longer, an unannounced revision to a website, a memo, a footnote in a memo. Among immigration lawyers, the cumulative effect of these procedural changes is known as the invisible wall.”

https://www.huffpost.com/highline/article/invisible-wall/

We’re dealing with the results of these actions on a daily basis, and we’re committed to doing what it takes to help our clients successfully navigate the immigration system

Department of State Announces DV 2021 Visa Lottery

The Department of State has announced the procedures for the next Visa Lottery.  Detailed information is available on the Department of State website at:

https://travel.state.gov/content/dam/visas/Diversity-Visa/DV-Instructions-Translations/DV-2021-Instructions-Translations/DV-2021-%20Instructions-English.pdf

The Visa Lottery enables 50,000 individuals from most countries of the world an opportunity to obtain a green card provided they meet certain minimal qualifications.  In addition, they must not be “excludable” from the U.S. as a result of such factors as criminal record, immigration violations, etc. For fiscal year 2021, 50,000 DVs will be available.

Applicants are chosen by a computer-generated random drawing after submitting a simple application and photograph via an online system established by the State Department. The visas are distributed among six geographic regions, with a greater number of visas going to regions with lower rates of immigration, and with no visas going to nationals of countries sending more than 50,000 immigrants to the United States over the period of the past five years. No single country may receive more than seven percent of the available Diversity Visas in any one year.

For DV-2021, natives of the following countries are NOT eligible to apply because the countries sent more than 50,000 immigrants to the United States in the previous five years:

Bangladesh, Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, El Salvador, Guatemala, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam.  Persons born in Hong Kong SAR, Macau SAR, and Taiwan ARE eligible to participate in the Lottery.

A “native” is a person born in a country, or entitled to be “charged to” the country under the rules of “alternate chargeability.”  Under the rules of alternate chargeability, an alien applicant born in an ineligible country may “use”

  • the country of birth of his or her spouse, if the alien applicant is married to a native of an eligible country-provided the spouse is eligible for a visa and will immigrate to the U.S. with the applicant; or
  • the country of birth of either parent, if the alien applicant was born in a country in which neither of his or her parents had established a residence at the time of the applicant’s birth.

The spouse or children (a “child” is an unmarried person under 21 years of age) of a successful applicant will also be eligible for immigrant status, regardless of their place of birth.

If selected, applicants will be instructed to apply for an immigrant visa at the U.S. Consulate in their country of residence. However, applicants who are in the U.S. will, in many cases, be eligible to adjust their status through a local Immigration office.

A successful applicant must prove that he or she has at least a high school education or its equivalent, or two years of work experience during the past five years in a job which, according to the Department of Labor’s O*Net Online database, requires at least two years of training or experience. An applicant must also establish that she/he meets the usual qualitative requirements for entry to the U.S.  For example, an applicant with a criminal record may be barred.

Entries for the DV-2021 DV program must be submitted electronically between noon Eastern Daylight Time (EDT) (GMT-4), Wednesday, October 2, 2019, and noon, Eastern Standard Time (EST) (GMT-5), Tuesday, November 5, 2019. Applicants must submit entries electronically during this registration period using the electronic DV entry form (E-DV) at www.dvlottery.state.gov. Paper entries will not be accepted. We strongly encourage applicants not to wait until the last week of the registration period to enter. Heavy demand may result in website delays. No entries will be accepted after noon, EDT, on November 5, 2019.

We believe that anyone with access to the Internet can complete the entry process without hiring an attorney or paying a fee to a third party, though it may be worthwhile for some individuals who are not computer savvy to pay a small fee to have someone assist them with the process.   PAYMENT OF A FEE TO A THIRD PARTY WILL NOT INCREASE YOUR CHANCE OF BEING SELECTED.

However, we strongly recommend that anyone selected in the lottery consult with an experienced immigration attorney to determine the best course of action and to identify any issues which may derail their application for a green card.

Please feel free to contact our office if you have any questions.

 

Updated USCIS Forms Required effective October 15, 2019

USCIS has finally published the much anticipated  new editions of Forms I‑485, I‑129, I‑539/I‑539A, I‑864, and I‑864EZ.  Also published is the new Form  I‑944, Declaration of Self Sufficiency, required by the updated “Public Charge” regulations.

They will accept the current edition of these forms if they are postmarked on or before Oct. 14, 2019.  However, note that October 14 is a federal holiday and the U.S. Postal Service will be closed.

The Service has confirmed that they will only accept the new editions of these forms if postmarked on or after October 15, 2019.

The Service has also confirmed that a dated receipt from the courier service such as UPS, FedEx, or DHL is equivalent to a U.S. Postal Service postmark.

 

August 2019 Visa Bulletin Retrogression

Effective August 1, the availability of employment-based visa numbers experienced significant setbacks across the board.  Among the most notable developments are the following:

Visa numbers will no longer be current in the Worldwide EB-2 and EB-3 categories.  Instead, cut-off dates will be established.

The EB-2 category will have a cut-off date of January 1, 2017 and the EB-3 category will have a cut-off date of July 1, 2016.  The EB-1 category has also regressed further, to July 1, 2016.

While I-140 Immigrant Visa Petitions seeking to qualify in one of these categories can continue to be filed, only applicants who have established a “Priority Date” * prior to the cut-off date can file an Adjustment of Status (I-485) application and obtain the associated benefits of an Employment Authorization and Advance Parole document.

Applicants in these categories chargeable to the Worldwide quota who have a Priority Date after the cut-off date who are otherwise eligible must file their I-485 during the month of July 2019, or face waiting until their date is again reached.

Applicants considering filing a concurrent EB-2 Visa Petition and Adjustment of Status application based, for example, on a National Interest Waiver, also must do so during this month to avoid an indeterminate delay before the numbers again become current.  It is impossible to predict when this will happen.

Applicants born in China, India and other countries which already had established cut-off dates in these categories saw some further regression in several of the categories.

The August Visa Bulletin may be viewed on the Department of State website at www.travel.state.gov.

Please contact our office if you have any questions.

*a Priority Date is established by the filing of a PERM Labor Certification Application which is eventually approved, or the filing of an I-140 Immigrant Visa Petition in those cases where a Labor Certification is not required.

 

USCIS Announces Two Important Developments

First, effective immediately, Premium Processing is available for all types of H-1B Petitions including, unless there is another revision, Petitions that will be filed in the H-1B Lottery beginning on April 1, 2019.  When an H-1B petitioner properly requests the agency’s premium processing service, USCIS guarantees a 15-day processing time. If they do not adjudicate the Petition within 15‑calendar days, USCIS will refund the $1,410 fee and continue with expedited processing of the Petition.

Premium Processing may be requested for pending cases by filing Form I-907 with fee to the Service Center processing the Petition.

Second, USCIS has introduced a new, expanded Form I-539 (Application to Extend or Change Nonimmigrant Status).  The new Form is optional now but mandatory effective March 22, 2019. The new Form will require all applicants to have their biometrics (i.e. fingerprints) taken at an appointment to be scheduled by USCIS after the application is filed. Unfortunately, this is likely to delay the processing of these cases.

As always, please contact us if you have any questions.

 

USCIS Proposes Changes to H-1B Filing Procedure

 

On November 30, 2018 USCIS announced a proposal to change the way cap-subject H-1B Petitions are filed.

Until now, cap-subject H-1B Petitions could be filed after April 1 requesting a start date of October 1 for the upcoming fiscal year. Because the demand for numbers has far exceeded the available allocation during the past few years, it has been imperative for employers to file Petitions in the first few days of April.  Then, Petitions were selected for consideration in a random selection process.  Those not selected were returned to the Petitioner, along with the filing fees.

USCIS is now proposing that Petitioners electronically register proposed H-1B cases during a designated registration period.  This period would begin at least 14 days before April 1 and would remain open for at least 14 days.  There would be at least 30 days advance notice of the upcoming registration period.

The information required from the Petitioner and the prospective employee to register might include the following:

  • The employer’s name, identification number (EIN), and address;
  • the employer’s authorized representative’s name, job title, and contact information;
  • the beneficiary’s name, date of birth, country of birth, country of citizenship, gender, and passport number, as well as whether the beneficiary has obtained a master’s or higher degree from a U.S. institution of higher education;
  • the employer’s attorney or accredited representative, if applicable; and
  • any additional basic information requested by the registration system or USCIS.

The random selection process would then take place to choose Petitions for adjudication.  The selection process is designed to favor Petitions for candidates with a U.S. Master’s Degree.  Once selected, Petitioners would have 60 days to file the H-1B Petition.  USCIS will provide details on when and where to file.

USCIS admits that it is very unlikely that the system will be in place for the upcoming H-1B filing “season.”  Therefore, until we learn otherwise, we are advising clients to prepare for the upcoming H-1B season as done in prior years by starting early and preparing a robust and well-documented Petition for April filing.