Visa Lawyer Blog

Articles Posted in Immigrant Visas

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In this post, we would like to provide our readers with an important update released by the United States Citizenship and Immigration Services (USCIS) with respect to the public charge rule.

Given the Supreme Court’s recent ruling in favor of the government, the United States Citizenship and Immigration Services (USCIS) has announced that they will begin implementing the “Inadmissibility on Public Charge Grounds” rule on February 24, 2020, EXCEPT for in the State of Illinois, where the rule remains enjoined for the time being by a federal court.

That means that EXCEPT for in the State of Illinois, USCIS will begin to apply the Final Rule to applications and petitions postmarked (or submitted electronically) on or after February 24, 2020.

The postmark date for all applications and petitions sent by commercial courier (UPS/FedEx/DHL) is the date reflected on the courier receipt.

The public charge rule will NOT apply to applications or petitions postmarked before February 24, 2020 and petitions that remain pending with USCIS.

Prepare for Changes: USCIS to update all Adjustment of Status Forms

USCIS has announced that the agency will be updating all forms associated with the filing of adjustment of status, its policy manual, and will be providing updated submission instructions on its website this week to give applicants and their legal representatives enough time to review filing procedures and changes that will apply to all applications for adjustment of status postmarked on or after February 24, 2020.

Failure to submit forms with the correct edition dates and/or abide by the new filing procedures will result in the rejection of an application or petition.

The Final Rule provides that adjustment of status applicants subject to the public charge grounds of inadmissibility will be required to file Form I-944 Declaration of Self-Sufficiency along with Form I-485, as part of the public charge inadmissibility determination to demonstrate they are not likely to become a public charge. Therefore, we expect USCIS to provide instructions regarding the submission of Form I-944 with adjustment of status applications.

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We kick off a brand-new week with breaking news handed down by the United States Supreme Court.

Today, in a 5-4 decision, the Supreme Court ruled that the Trump administration may enforce  the controversial rule entitled, “Inadmissibility on Public Charge Grounds” which expands the scope of public benefits that will render a permanent resident or immigrant visa applicant ineligible for immigration benefits. The public charge rule makes certain individuals inadmissible to receive permanent residence on public charge grounds based on their use of certain government assistance programs.

As we reported, on January 13, 2020 the Trump administration filed an emergency appeal asking the Supreme Court to lift a remaining lower court injunction preventing the government from enforcing the public charge rule. Today, the conservatives on the Supreme Court overpowered the four liberal justices on the court, in favor of the Trump administration, ruling that the government may now begin to enforce the public charge rule despite challenges to the rule pending in the lower courts.

Overview: 

Under current immigration law, an individual who, in the opinion of DHS is likely at any time to become a public charge is (1) ineligible for a visa (2) ineligible for admission to the United States and (3) ineligible for adjustment of status (permanent residence).

In determining whether an applicant is or will likely become a public charge USCIS has always considered the receipt of Temporary Assistance for Needy Families (TANF), Supplemental Security Income (SSI), and Medicaid, benefits that make an applicant ineligible for permanent residence.

The public charge rule goes further and expands the list of benefits that make a foreign national ineligible to obtain permanent residence or an immigrant visa (in addition to the benefits listed above). These additional benefits include:

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Welcome back to our blog! We kick off the week by bringing you recent developments regarding the government’s controversial rule entitled, “Inadmissibility on Public Charge Grounds” which sought to expand the scope of public benefits that could render a permanent resident or immigrant visa applicant ineligible for immigration benefits.

As you know, in October of 2019, the final rule “Inadmissibility on Public Charge Grounds,” was swiftly blocked by several federal judges shortly before going into effect. By court order, the government cannot implement the final rule anywhere in the United States until a final resolution has been reached in several lawsuits brought against the government challenging the validity of the public charge rule.

On Monday, January 13, 2020, the Trump administration filed an emergency appeal with the Supreme Court of the United States, asking the court to lift the remaining lower court injunction, that is currently stopping the government from enforcing the public charge rule.

The government’s request comes just one week after a three-judge panel for the U.S. Court of Appeals for the Second Circuit, upheld a lower court injunction, preventing the government from implementing the public charge rule on a nationwide basis.

Angered by the decision, the government decided to appeal the U.S. Court of Appeals decision by bringing the matter to the Supreme Court, urging the Court to side with the President and allow the implementation of the rule while a decision in the New York lawsuit is reached on the merits.

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It’s official. Yesterday, the United States Citizenship and Immigration Services (USCIS) published a notice in the Federal Register formally implementing the mandatory registration requirement for H1B petitioners seeking to file a cap-subject petition for Fiscal Year 2021. The notice went into effect on January 9, 2019, the date of publication.

Beginning March 1, 2020, before a petitioner can file an H-1B cap-subject petition, including petitions eligible for the advanced degree exemption, the petitioner must first electronically register with USCIS. Only petitioners with a valid registration selection will be eligible to file an H-1B petition with USCIS.

The initial registration period for FY 2021 will open on March 1, 2020 and is expected to close on March 20, 2020. The actual end date will be provided on the USCIS website.

Who must register?

H-1B cap-subject petitioners, including those eligible for the advanced degree exemption, seeking to file a FY 2021 H-1B cap petition will be required to first register electronically with USCIS and pay the associated $10 H-1B registration fee for each submission

Prospective petitioners or their authorized representatives must electronically submit a separate registration naming each alien for whom they seek to file an H-1B cap-subject petition. Duplicate registrations are prohibited.

What happens after the registration period closes?

Once the registration period closes, USCIS will conduct the initial selection process.

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Welcome to 2020! It’s a new year and a brand-new decade. In this post, we cover the things you need to watch and groundbreaking events taking place in 2020 that will shape the future of immigration for years to come.

2020 Presidential Election

One of the most momentous events in American history will take place November 3, 2020, as Americans head to the polls to vote for the next President of the United States. The winner of the 2020 presidential election will be inaugurated on January 20, 2021.

Candidates for the Presidency will take part in dozens of debates leading up to the presidential election during the next few months. As it stands, fourteen Democratic nominees remain in the 2020 presidential race vying for an opportunity to oppose President Donald Trump come November.

The top Democratic candidates include Joe Biden, Bernie Sanders, Pete Buttigieg, and Elizabeth Warren. On February 3, 2020 these candidates will participate in the Iowa Democratic caucuses, the first nominating contest in the Democratic Party presidential primaries.

For its part, the Republican National Committee has pledged its support to President Trump in his re-election bid, meaning that Donald Trump will likely be unopposed in the 2020 Republican Party presidential primaries. Only two other Republican candidates have formally announced their intent to take part in the presidential race, including Joe Walsh and Bill Weld.

As previously reported, the outcome of the 2020 Presidential election will have a profound effect on the future of immigration, given the central role that the topic has had in American politics during the Trump administration, and its continued level of importance in the 2020 election.

The Supreme Court will take on the issue of DACA

During the Spring of 2020, several big decisions will be made on immigration by a conservative Supreme Court.

On June 28, 2019, the U.S. Supreme Court agreed to hear lawsuits filed against the Trump administration challenging the President’s decision to abruptly terminate Deferred Action for Childhood Arrivals (DACA). Oral arguments began on November 12, 2019 in Washington D.C., and a final decision is expected to be handed down by the court this spring.

Currently five conservative justices sit on the bench (Chief Justice Roberts, Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh), tipping the scales in favor of conservatives with regard to the future of DACA.

A decision in favor of the President would mean the end of the program and no legislative solution to shield Dreamers from deportation. Perhaps more importantly, the decision would re-energize the President’s base, increasing the President’s chances for re-election.

While a decision against the Trump administration would preserve the DACA program and allow Dreamers to continue to live and work in the United States without fear of deportation. Such a decision would also impact the outcome of the Presidential election, given that it would unify the Democratic party and supports sympathetic to the plight of Dreamers.

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In this blog post, we would like to remind our readers that today is the last day to submit a public comment on the USCIS proposed rule increasing immigration fees for certain petitions. Initially USCIS had set a 30-day comment period ending on December 16, 2019, however the comment period was later extended for two more weeks, ending today December 30, 2019.

Once the comment period has closed, USCIS will review all public comments and publish a final rule in the Federal Register which will contain the rule’s effective date of implementation.

The filing fees for the following petitions would increase substantially under the proposed rule:

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In its latest attempt to limit the entry of asylum seekers to the United States, the Trump administration has published a new proposal in the Federal Register entitled, “Procedures for Asylum and Bars to Asylum Eligibility,” adding minor crimes to the list of offenses that would bar individuals from obtaining asylum.

The proposal primarily seeks to establish additional bars on eligibility for asylum seekers who have committed certain offenses in the United States after entering the country, including minor offenses. Offenses which have been committed in a foreign country will not be counted. Therefore, the proposal targets asylum seekers who were once present in the United States, now returning to the United States seeking asylum protection, or asylum seekers waiting for a decision on a pending asylum case in the United States who have committed an offense after entering the country.

Under this new proposal, the ineligibility bar would apply to the following individuals:

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The U.S. Department of State recently released the December 2019 Visa Bulletin. In this post, we will discuss the current state of the visa bulletin, potential for advancement, retrogression, and predictions.

Family-based Preference Categories

The Final Action Date for F2A has been current and remains current since July 2018 across all countries through December. Low demand in this category has made it “current” and is expected to remain current for the foreseeable future.

Movement for all other family-preference categories remains as before.

F-4 visa demand is increasing which may result in slow movement in this category in the foreseeable future, but not nearly enough to cause a retrogression.

Employment-based preference categories

Overview

For the month of December 2019, EB-2 Worldwide, as well as EB-2 El Salvador, Guatemala, Honduras, Mexico, Philippines, and Vietnam remain current.

Similarly, EB-3 Worldwide, as well as EB-3 El Salvador, Guatemala, Honduras, Mexico, and Vietnam remain current.

The Visa Bulletin notes that visa availability is likely to slow down for employment-based visa categories due to the steady increase in the level of employment-based demand for adjustment of status cases filed with USCIS. If the current pace of demand continues, a final action date will be implemented for EB-2, EB-3, and EB-3 Other Worker preference categories as early as January.

Charles Oppenheim, Chief of the Visa Control and Reporting Division at the U.S. Department of State has reported that if the level of demand subsides, it is possible that these categories will remain current, however there is no evidence that demand will slow down for these categories, therefore visa applicants should be prepared for the implementation of Final Action Dates as early as January 2020.

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On November 14, 2019, the United States Citizenship and Immigration Services will publish a proposed rule in the Federal Register to increase immigration fees for certain petitions. After publication, the proposal will be open for a 30-day comment period. After that point the agency will review public comments and draft the final rule. At this time there is no definitive date set out in the proposed rule for enforcement of these fees. Therefore, readers should note that these fee increases will likely not take effect until well into Fiscal Year 2020.

What does the rule propose?

The rule proposes the following fee increases by immigration benefit:

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Moreover, DHS proposes that fees for the following types of petitions be limited to a 5 percent increase above current fees:

  • Form I-290B, Notice of Appeal or Motion.
  • Form I-360, Petition for Amerasian, Widow(er) or Special Immigrant.
  • Form I-600, Petition to Classify Orphan as an Immediate Relative
  • Form I-600A, Application for Advance Processing of an Orphan Petition
  • Form I-600A/I-600, Supplement 3, Request for Action on Approved Form I-600A/I600.42
  • Form I-800, Petition to Classify Convention Adoptee as an Immediate Relative.
  • Form I-800A, Application for Determination of Suitability to Adopt a Child from a Convention Country.
  • Form I-800A, Supplement 3, Request for Action on Approved Form I-800A

Changes to Fee Waiver Requests

DHS further proposes to limit fee waivers grants to individuals who have an annual household income of less than 125 percent of the Federal Poverty Guideline as defined by the U.S. Department of Health and Human Services (HHS).

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In the latest blow to President Trump’s embattled Presidency, on November 2nd federal judge Michael Simon issued a preliminary injunction blocking the government from enforcing the President’s Proclamation issued on October 4, 2019, suspending the entry of any immigrant who will “financially burden the United States healthcare system.”

Judge Simon’s decision came just one day before the government’s planned implementation of the Presidential Proclamation.

The judge’s order applies nationwide and prohibits the government from implementing any part of the Proclamation requiring individuals seeking an immigrant visa to provide evidence “to a consular officer’s satisfaction” that they would either be covered by an approved health insurance within 30 days of entry to the United States, or possess the financial resources to pay for reasonably foreseeable medical costs.

Judge Simon’s decision came in response to a class action lawsuit filed in Federal District Court in the District of Oregon by seven United States Citizens and a non-profit organization against the Trump administration, challenging the legality of the Presidential Proclamation.

Plaintiff’s argued that the Proclamation should be found unlawful because it does not advance the President’s goal of reducing the burden of uncompensated care for uninsured individuals. Plaintiff’s called into question the President’s true intentions in issuing the Proclamation, stating that the Proclamation “is but the latest link in a long chain of statements and actions by this President and his Administration expressing antipathy toward all noncitizens. . .particularly immigrants of color, from Central and Latin America, Africa and the Middle East.”

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