Visa Lawyer Blog

Articles Posted in Family Visas

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On Friday October 11, 2019, three Federal courts in California, New York, and Washington issued three temporary injunctions blocking the Trump administration from enforcing the Public Charge rule on a nationwide basis, which was set to go into effect on October 15, 2019.

The decision to block the government from enforcing the Public Charge rule is sure to set off a contentious legal battle that is just beginning to unfold.

California’s Injunction

In California, the City of San Francisco, State of California, and La Clinica de La Raza, a health care provider, joined together as plaintiffs to sue the United States Citizenship and Immigration Services (USCIS), the U.S. Department of Homeland Security (DHS), and the President of the United States to prevent the Public Charge rule from going forward.

U.S. District Judge Phyllis Hamilton granted the Plaintiffs a preliminary injunction bringing a temporary stop to the government’s plans to enforce the rule, in states falling under the purview of the U.S. District Court of Appeals for the Ninth Circuit.

Judge Hamilton wrote that in seeking to enforce the final rule, the government failed to consider the impact the rule would have on local and state governments when immigrants chose to leave public health benefit program, “[DHS] made no attempt, whatsoever, to investigate the type or magnitude of harm that would flow from the reality which it admittedly recognized would result—fewer people would be vaccinated,”

Washington’s Injunction

Similarly in a separate but related lawsuit, the States of Washington, Colorado, Delaware, Hawaii, Illinois, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, and Rhode Island joined together as Plaintiffs to sue the United States Citizenship and Immigration Services (USCIS), the U.S. Department of Homeland Security (DHS), the heads of these agencies, and the President of the United States.

The Washington injunction was more sweeping in scope in that the Federal Judge in that case, Rosanna Malouf Peterson, ordered a nationwide injunction forcing the government to refrain from implementing or enforcing the rule on a temporary but nationwide basis. In her decision Judge Peterson wrote, “the Court declines to limit the injunction to apply only in those states within the U.S. Court of Appeals for the Ninth Circuit.”

As a result, the broad scope of the injunction prevents the government from enforcing the Public Charge rule on a nationwide basis.

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Instructions for the 2021 Diversity Immigrant Visa Program

The Diversity Immigrant Visa Program registration season is now among us. The U.S. Department of State has released instructions on how to apply for the FY 2021 Diversity Immigrant Visa Program in which 55,000 Diversity Visas (DVs) will be up for grabs. Registration will begin promptly at 12:00 pm (ET) on October 2, 2019 and will continue until 12:00 pm (ET) on November 5, 2019. There is no cost to register for the Diversity Visa Program.

Please remember that the law allows only one entry per person during each registration period. Individuals who submit more than one entry will be disqualified.

How does selection occur?

The Department of State determines selectees through a randomized computer drawing. The Department of State distributes diversity visas among six geographic regions, and no single country may receive more than seven percent of the available DVs in any one year.

Am I eligible to apply?

You are eligible to apply if you meet the following requirements:

Requirement #1: You must be a national of one of the following countries (see below) OR

If you were not born in an eligible country, you may apply if your spouse was born in a country whose natives are eligible provided that both you and your spouse are named on the selected entry, are found eligible and issued diversity visas, and enter the United States simultaneously

OR

If you were born in a country that is ineligible, but neither of your parents were born or legally residents of that country at the time of your birth, you may claim the country of their birth.

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The process of getting a visa for a family member can be stressful.

The immigration system is complex. Being separated from your family can be painful and visa processing times frustrating. The law seems to change so often, it can be hard to keep track of what rules you’re supposed to follow.

Recently, the United States Department of State changed the family sponsored visa numbers for several countries. They released these new numbers in the September 2019 Visa Bulletin.

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The Trump administration has published a proposed rule in the Federal Register expanding the social media information that can be collected as part of the non-immigrant and immigrant visa process.

This new proposed rule is part of the President’s plan to “Protect the Nation from Foreign Terrorist Entry into the United States,” as stated in Executive Order 13780.

As you may recall this Executive order seeks to “establish screening and vetting standards and procedures to enable DHS to assess an alien’s eligibility to travel to or be admitted to the United States or to receive an immigration-related benefit from DHS.”

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On August 28, 2019, the United States Citizenship and Immigration Services (USCIS) issued new policy guidance defining “residence” as it relates to U.S. Citizenship.

The new policy guidance clarifies what it means to “reside in the United States” for the purpose of acquiring citizenship and sets out new policy guidelines as it relates to the acquisition of citizenship of children of U.S. government employees and U.S. armed forces members employed or stationed outside the United States.

Effective October 29, 2019, children residing abroad with their U.S. citizen parents (who are U.S. government employees or members of the U.S. armed forces stationed abroad) will not be considered to be residing in the United States for acquisition of citizenship. Similarly, leave taken in the United States while stationed abroad is not considered residing in the United States even if the person is staying in property he or she owns.

Therefore, U.S. citizen parents who are residing outside the United States with children who are not U.S. citizens should apply for U.S. citizenship on behalf of their children, by filing Form N-600K Application for Citizenship and Issuance of Certificate Under Section 322 and must complete the process before the child’s 18th birthday.

The child of a member of the U.S. armed forces accompanying his or her parent abroad on official orders may be eligible to complete all aspects of the naturalization proceedings abroad. This includes interviews, filings, oaths, ceremonies, or other proceedings relating to naturalization.

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On Wednesday, the Trump administration announced a proposal that will change the settlement agreement reached in Flores v. Reno, an agreement that limited the amount of time and conditions under which the U.S. government could detain immigrant children.

Reno v. Flores prevented the government from holding immigrant children in detention for over 20 days. The Trump administration is now seeking to do away with that prohibition and hold undocumented families traveling with children for an indefinite period of time.

In a press conference on Wednesday, Acting DHS Secretary Kevin McAleenan, announced the administration’s plans to publish a final rule in the Federal Register to do away with the Flores rule. The rule would become effective 60 days after publication. The proposal however will likely be met with great opposition and result in years long litigation.

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In this post we bring you the latest immigration news.

Final Rule Inadmissibility on Public Charge Grounds

The Department of Homeland Security has posted the official version of final rule “Inadmissibility on Public Charge Grounds,” in the Federal Register.

The Final Rule will become effective at 12:00 a.m. EST on October 15, 2019.

Who does the rule apply to?

The rule will be applied to applications and petitions postmarked (or electronically submitted) on or after October 15, 2019.

The rule will not apply to applications and petitions pending with USCIS prior to October 15, 2019.

To read the official version of the rule please click here.

USCIS Completes Return of Unselected H-1B Petitions

As of August 15, 2019, USCIS has returned all FY2020 H-1B cap-subject petitions that were not selected in the lottery. Unselected petitions contain a rejection notice explaining that the petition was not selected in the lottery.

If you submitted a FY 2020 H-1B cap-subject petition that was delivered to USCIS between April 1 and April 5, 2019, and you do not receive a receipt notice or returned petition by August 29, 2019, contact USCIS for assistance.

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USCIS will be publishing a final rule on August 14, 2019, in the Federal Register, that expands the list of public benefits that make a foreign national ineligible to obtain permanent residence and/or an immigrant or nonimmigrant visa.

The Immigration and Nationality Act makes inadmissible and therefore (1) ineligible for a visa, (2) ineligible for admission and (3) ineligible for adjustment of status, any alien who, in the opinion of the DHS is likely at any time to become a public charge.

The process of determining whether an alien is likely to become a public charge is called a “public charge determination.”

Receipt of certain public benefits leads to a “public charge determination” meaning that the applicant is ineligible to receive the benefit they are requesting (such as permanent residence) based on the fact that they are likely to become a public charge to the United States government.

What is a public charge?

A person is a “public charge” if they are 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.

The final rule expands the scope of this definition by making a public charge any alien who receives one or more designated public benefits for more than 12 months in the aggregate within any 36-month period.

Under the final rule announced today, immigration will now be taking into consideration the following benefits to determine whether an individual is or is likely to become a public charge to the U.S. government:

Reliance on or receipt of non-cash benefits such as:

  • Cash benefits for income maintenance
  • SNAP (food stamps)
  • Section 8 Housing Assistance under the Housing Choice Voucher (HCV) Program
  • Section 8 Project-Based Rental Assistance, and
  • certain other forms of subsidized housing.

In addition, the government will continue to take into consideration the following types of benefits:

  • Temporary Assistance for Needy Families (TANF)
  • Supplemental Security Income (SSI)
  • Medicaid

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USCIS has announced that it will be closing all of its International Immigration Offices by March 10, 2020.

As of June 30, 2019, USCIS has already permanently closed its field office in Ciudad Juarez, Mexico, and on July 5th, the office in Manila, Philippines permanently closed.

By the end of January 2020, the majority of international USCIS field offices are expected to be closed, including offices in Mexico City, London, Athens, and Guatemala City.

The first offices to close will be those in Monterrey, Mexico, Seoul, South Korea, and Manila, Philippines, with a projected closing date of September 2019.

The following is a complete list of USCIS International Immigration Offices expected to close:

Latin America, Canada and the Caribbean (LACC) District

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We are happy to report that on July 10, 2019 the House of Representatives passed the Fairness for High-Skilled Immigrants Act of 2019 (H.R. 1044), a bill that if enacted, would amend the Immigration and Nationality Act to eliminate the per-country numerical limitation for employment-based immigrants, and increase the per-country numerical limitation for family-sponsored immigrants.

What is H.R. 1044?

H.R. 1044 is a piece of legislation that was first introduced before the House of Representatives on February 7, 2019 by Representative Zoe Lofgren.

Employment-Based Sponsorship

The bill seeks to drastically change the way that our employment-based green card system works by eliminating the “per country cap” that limits the number of green cards that may be issued to applicants per fiscal year depending on their country of origin also known as country of chargeability.

Currently, employment-based workers fall into one of five “preference categories” including EB-1 Priority Workers, EB-2 Professionals Holding Advanced Degrees/Persons of Exceptional Ability, EB-3 Skilled Workers, Professionals, EB-4 Special Immigrants, and EB-5 Investors. Each of these categories is subject to Congressional numerical limitations, as well as per-country limitations.

H.R. 1044 proposes to remove the per-country limitations to enable applicants to obtain employment visas based on merit, and not based on country of origin. The bill would also eliminate the 7% cap for employment-based visas and remove an offset that reduced the number of visas for individuals from China.

The bill also establishes transition rules for employment-based visas from FY2020-FY2022, by reserving a percentage of EB-2 (workers with advanced degrees or exceptional ability), EB-3 (skilled and other workers), and EB-5 (investors) visas for individuals not from the two countries with the largest number of recipients of such visas. Of the unreserved visas, not more than 85% would be allotted to immigrants from any single country.

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