Visa Lawyer Blog

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Fresh off the press! In this blog post we will discuss a new proposed rule that is set to be published in the Federal Register on September 4, 2019. We have reviewed an advance copy of this proposed rule and will tell you everything you need to know about the new rule.

At a Glance

The proposed rule will require petitioners filing H-1B cap-subject petitions to pay a $10 registration fee for each petition they submit to USCIS for the H-1B cap selection process beginning with the H-1B fiscal year 2021 cap season.

Overview

As you may recall, on January 31, 2019, DHS published a final rule requiring petitioners seeking to file H-1B cap-subject petitions (including those eligible for the advanced degree exemption) to first electronically register with USCIS during the designated registration period (“H-1B registration final rule”).

USCIS stated that the new H-1B registration system would be implemented beginning with H-1B fiscal year 2021 to ensure the registration system and process work correctly.

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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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Recently our firm successfully filed an H-3 visa for a Front Office Manager position with a prestigious hotel chain. Here are a few things we learned along the way to help you file a successful H-3 visa for a trainee.

Establish frequent communication with the petitioner

            In the case at issue the employer/petitioner was a major hotel chain with a great reputation, making it easier to establish the hotel as a distinguished organization with the capacity to hold such training. Our point of contact was the Director of Human Resources.

Create a detailed training plan

            Creating a tailored training plan for the employer/petitioner was by far the most difficult part of filing this case because the hotel had its own rules and regulations for approving training sessions. At first, we submitted a very detailed training plan for approval to the Hotel Managers. We went through additional drafts and revisions to have the final training plan approved. Here were the steps we took to get to the final plan:

Step 1: Communicate with the petitioner:

At the outset we established what the employer/petitioner needed to include in the training plan. In this case, we had to create a training plan from scratch, because the employer/petitioner was not satisfied with the initial draft. We started by clarifying the scope of what was being offered to the beneficiary. Our office went through several rounds of drafts before coming to an agreement of what should be included in the training plan.

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On August 20, 2019, Immigration and Customs Enforcement (ICE) announced “enhanced coordination” efforts to remove Guatemalan adults and families arriving at the border more quickly. These efforts have been implemented to discourage Central Americans from attempting to enter the United States illegally and to deter human smuggling.

Acting Associate Director of ICE ERO Timothy Robbins made the following statement regarding these enforcement actions, “Breaking U.S. laws by illegally entering the United States is an ineffective manner to petition to legally remain in the United States. Ultimately, if you have no basis to remain in the United States, you will be apprehended and returned to your home country.”

ICE has announced that since mid-July it has implemented a more streamlined process to expeditiously remove Guatemalans who have no basis to remain in the United States.

According to ICE, this process allows the US to repatriate these individuals, “without utilizing resources to house aliens or manage their cases while they await immigration or removal proceedings out of custody.”

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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 International Field Offices

On August 9, 2019, USCIS announced its plans to maintain seven international field offices open in Beijing, Guangzhou, Nairobi, New Delhi, Guatemala City, Mexico City, and San Salvador.

As previously reported, all other USCIS international field offices will close between now and August 2020.

Functions performed at closing international offices will be handled domestically or by USCIS domestic staff on temporary assignments abroad. In addition, the Department of State (DOS) will assume responsibility for certain in-person services that USCIS currently provides at international field offices.

In addition to issuing visas to foreign nationals who are abroad, DOS already performs many of these service functions where USCIS does not have an office.

Targeted Immigration Raids

As our readers may be aware, U.S. Immigration and Customs Enforcement (ICE) has been conducting targeted immigration raids (Enforcement and Removal Operations) to remove undocumented immigrants from the United States.

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Photo: Christian Leo Seno
Flickr

The United States Supreme Court has announced that it will decide the fate of DACA, Deferred Action for Childhood Arrivals, during its next term, beginning in October, with a decision likely to be handed down by the Court in early 2020.

The Court’s decision to take up the issue of DACA will take place during a highly contentious political climate as Americans prepare to vote in the 2020 Presidential election.

Adding to the great divide among Americans about the future of DACA, is the Supreme Court’s current ideological split. At the moment, the Supreme Court is evenly split with 4 liberal justices and 4 conservative justices. Justice Alito, the “swing” voter is likely to cast the decisive vote.

As constitutional history has suggested, DACA is likely to find support among the liberal justices on the bench including Ginsburg, Sotomayor, Kagan, and Breyer, while finding opposition from Justices Thomas, Alito, Gorsuch, Kavanaugh, and Chief Justice Roberts.

This will not be the first time the Supreme Court hears a case involving the constitutionality of the DACA program.

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On August 1, 2019, the United States Citizenship and Immigration Services (USCIS) announced that Syrian nationals currently receiving benefits under Temporary Protected Status (TPS) may re-register through March 31, 2021, to maintain their status under the program.

Re-registration instructions and information on how to renew employment authorization will soon be published on the USCIS website and the federal register.

Applicants must re-register by submitting Form I-821 Application for Temporary Protected Status to maintain TPS benefits, and may submit a properly completed Form I-765 Application for Employment Authorization to renew employment authorization documents (EAD) at the same time. Alternatively, TPS applicants may file Form I-765 at a later date.

Those who are eligible to apply will receive new employment authorization documents with a new expiration date.

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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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