Amended Public Charge Rule Will Not Go Into Effect on October 15th

Earlier this afternoon, a federal judge in New York issued an injunction against the recently amended “public charge” rule. We discussed the amended public charge rule a few weeks ago. People deemed to be a public charge may be prevented from applying for permanent residency. The amended rule altered the definition of “public charge” to include an individual who receives one or more designated public benefits for more than 12 months, in the aggregate, within any 36-month period. Additionally, it was broadened to include many common services, such as public housing assistance, food stamps, supplemental income, and certain Medicaid costs.

The temporary injunction issued today will prevent the amended public charge rule from taking effect on Oct. 15.

The rule is being challenged in several federal courts by immigrants’ rights groups and more than a dozen state attorneys general. While the public charge requirement has been a long-standing rule, it has not previously been defined this specifically.

As the rule continues working its way through the court system, we will continue to monitor it and provide updates. But for now, people filing for permanent residency will not be subjected to the newly amended public charge rule.

For more frequent updates, please follow us on Twitter (@GrahamAdairLaw).

Plan to Terminate H-4 Work Permit Program Delayed, DHS Seeks to Put Lawsuit on Hold

A memo from the U.S. Department of Justice, dated 9/16/19, has indicated that anticipated changes to the visa program which has allowed H-4 visa holder spouses of H-1B workers to obtain Employment Authorization Documents (EADs) will not be issued until the spring of 2020 at the earliest. The plan to eliminate the work authorization for H1-B spouses was formally introduced in February of 2019, with a proposed rule from USCIS and the Department of Homeland Security (DHS) “Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization.” The new regulations, currently under federal review, were initially expected to be published this year.

The U.S. Court of Appeals for the District of Columbia is currently hearing a lawsuit seeking to invalidate the H-4 EAD rule. The suit was filed by anti-immigration group Save Jobs USA, arguing that the DHS had no authority to issue the initial H-4 EAD rule, which was introduced in 2015. DHS lawyers maintain that the suit should be put on hold due to the ongoing efforts by the administration to rescind the program. According to the memo …DHS’s intention to proceed with publication of the H-4 EAD proposed rule remains unchanged. At this point, DHS has informed counsel that it believes the earliest possible publication date for that rule would be in spring 2020. Although that timeframe is aspirational, DHS believes that the September 27, 2019 oral argument should be removed from the calendar and postponed…”

We will continue to monitor developments and share updates as more information becomes available. If you have any questions, please feel free to contact your Graham Adair representative. For more frequent updates, please follow us on Twitter (@GrahamAdairLaw).

 

USCIS Proposes New Rule on H-1B Registration Fee Requirement

On Wednesday September 4, 2019, USCIS published a proposed rule in the Federal Register that would require payment of a $10 fee from all petitioners filing a H-1B cap-subject petition. The rule would apply to each registration submitted for the selection process, and is expected to be applicable to 2021 fiscal year cap filings. The 30-day public comment period is now open, with comments due 10/4/19 via mail or the Federal eRulemaking Portal: www.regulations.gov.

The new fee, which was excluded from the original January 2019 final rule that introduced the new online registration requirement, is expected to result in a marginal increase in costs for selected selected petitioners, and a cost savings for both unselected petitioners and the government. This is one in a series of steps toward implementing the new electronic registration system for H-1B filing. Details remain to be released about the new process, which will be in place for the April 2020 H-1B filing season.

We will continue to monitor developments and share updates as more information becomes available. If you have any questions, please feel free to contact your Graham Adair representative. For more frequent updates, please follow us on Twitter (@GrahamAdairLaw).

USCIS and DHS Publish Final Rule on Public Charge Grounds for Inadmissibility

On Wednesday August 14, USCIS and DHS published in the Federal Register the new final rule amending the regulations by which DHS determines admissibility on “public charge” grounds. Specifically, this is a change in the rule and a clarification of the definitions of what constitute a “public charge” and “public charge benefits.” The rule will go into effect at 12:00 a.m. Eastern Time on October 15, 2019, and cases filed prior to this date will be adjudicated based on the previous guidelines. The new rule will not affect currently pending cases. If any foreign nationals have received assistance from one of the programs designated below, they should advise our office at the initiation of any nonimmigrant or immigrant process so we can evaluate if the receipt will pose a problem.

The rule defines the term “public charge” to mean an individual who receives one or more designated public benefits for more than 12 months, in the aggregate, within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months).

The agency considers the following programs as grounds for inadmissibility:

  • Supplemental security income (SSI)
  • Temporary Assistance to Needy Families (TANF)
  • State general relief or general assistance
  • Medicaid programs covering institutionalization for long term care
  • Nonemergency Medicaid
  • Supplemental nutrition and assistance program (SNAP, formerly food stamps)
  • Section 8 Housing Choice Voucher Program
  • Section 8 Project-Based rental assistance
  • Public Housing

The rule will also affect those in nonimmigrant status if they have received any of the aforementioned public benefits above the designated threshold (12 months within any 36-month period). If they do receive such benefits, they will no longer be eligible for an extension or change of state.

The final rule does not include receipt or potential receipt of the following benefit programs as grounds for inadmissibility:

  • Emergency medical assistance
  • Disaster relief
  • National school lunch or school breakfast programs
  • Foster care and adoption
  • Head Start
  • Child Health Insurance Program including Medicaid for Aliens under 21
  • Earned Income Tax Credit or Child Tax Credit
  • Public benefits received by individuals who are serving in active duty or in the Ready Reserve component of the U.S. armed forces, and their spouses and children
  • Public benefits received by certain international adoptees and children acquiring U.S. citizenship
  • Medicaid for pregnant women
  • Medicaid for school-based services (including services provided under the Individuals with Disabilities Education Act)

Benefits received by the applicant’s U.S. citizen children or other family members are not considered in determining whether the applicant is likely to become a public charge. The final rule also clarifies that DHS will only consider public benefits received directly by the applicant for the applicant’s own benefit, or where the applicant is a listed beneficiary of the public benefit. DHS will not consider public benefits received on behalf of another as a legal guardian or pursuant to a power of attorney for such a person.

USCIS will exercise its discretionary authority, in limited circumstances, to offer an otherwise inadmissible foreign national the opportunity to post a public charge bond. The final rule sets the minimum bond amount at $8,100; the actual bond amount will be dependent on the individual’s circumstances.

If a foreign national has received any of the public benefits listed above, we urge them to contact our office so that we can advise on the potential impact and the best possible course of action.

USCIS has Updated Policy Manual in Regard to Services Provided to Public

The United States Citizenship and Immigration Services (USCIS) has updated its policy manual regarding services to the public, including general administration of certain immigration benefits, online tools and providing up-to-date information.

Notable updates include revisions to “case specific information,”  “expedited treatment” and “service request procedures.” The American Immigration Lawyers Association (AILA) has issued a 13-page response to the USCIS policy manual update.

In matters involving “case specific information,” the AILA takes issue with some field offices requiring mobile devices to be shut off. These mobile devices often allow access to case specific information. See excerpt from the AILA regarding this matter below.

“USCIS might consider a general policy requiring that all electronic devices be switched to “silent” or “vibrate” when inside a facility and further establish criteria for permissible use of such devices during interviews and appointments, such as accessing case specific information, conducting case related research, and responding to an urgent or emergency situation.” Sec. h paragraph 3.

USCIS currently has vague guidelines regarding “expedited treatment” matters. Section g. of AILA’s response would like USCIS to provide more specifics on scenarios where expedite requests will be granted. Not only would this provide clarity to applicants, but it would also cut down on requests, which in turn would save USCIS a lot of manpower in sifting through inordinate amounts of non-qualifying expedite requests.

In regard to matters involving “service request procedures,” the AILA document provides requests to improve and expedite services provided by USCIS.

Graham Adair will continue to provide updates if and when additional changes are made.

USCIS Looks to Decrease N-400 and I-485 Processing Times

The United States Citizenship and Immigration Services (USCIS) will administer a nationwide policy to decrease discrepancies in Form N-400 (Application for Naturalization) and Form I-485 (application to register for permanent residency or adjust immigrant status) processing times based on immigrant location.

USCIS has experienced an increase in processing times since the end of 2015, due to a large increase in forms during 2016 and 2017. Both years were projected to see a decrease in forms, however 2017 receipts were up 15.6% from 2016, and 2016 receipts were up 25.5% from 2015. The increased filings didn’t affect field offices equally, thus resulting in processing time discrepancies between field offices.

As a matter of reference, Nebraska Service Center Form I-485 processing times are 10-13 months compared to 15.5 to 49.5 months at the Texas Service Center. Most of the I-485’s are adjudicated in these two regional centers. The first number in both ranges is the median time it takes to complete cases and the second number is the time it takes to complete 93% of cases.

As caseloads are being shifted between field offices to reduce processing times, the USCIS could schedule applicants to appear for interviews at field offices outside of their usual jurisdiction. Applicants could also receive an interview appointment notice or other notices, such as Request for Evidence, from a field office out of their usual jurisdiction. These changes to caseload won’t affect where the applicants attend their biometrics appointments. USCIS will still direct applicants to the nearest application support center, and they should follow the instructions on any notices they receive from USCIS.

USCIS Announces H-1B Cap Season Start, Premium Processing Changes for FY 2020

United States Citizenship and Immigration Services (USCIS) has announced that Fiscal Year (FY) 2020 H-1B cap-subject petitions will begin being accepted on April 1, 2019. The agency has also announced several changes to the petition process:

Premium Processing

FY 2020 premium processing for cap-subject H-1B petitions will take place in two phases: (1) petitions requesting change of status and (2) all other petitions, such as those filed with consular processing. Petitioners will be able to concurrently file their request for premium processing with their H-1B petition. USCIS will begin processing these concurrent filings by May 20, 2019 at the latest. USCIS anticipates that it will begin processing all other cap-subject H-1B petitions in June 2019.

Employer Data Hub

USCIS will launch the H-1B Employer Data Hub on uscis.gov on April 1, 2019. In an effort to to provide additional transparency into the H-1B program, the public will be able to search for information including which companies sponsored H-1B employees and how many, as well as approval and denial rates.

Cap Selection

Earlier this year, the Department of Homeland Security (DHS) announced changes to the H-1B cap selection process with reference to petitions eligible for the advanced degree exemption. More information on these changes can be found here.

For further guidance or case-specific questions, please contact your Graham Adair representative. For more frequent updates, please follow us on Twitter (@GrahamAdairLaw).

USCIS Resumes Premium Processing for All H-1B Petitions

USCIS has announced that it will resume premium processing this Tuesday, March 12, 2019 for all H-1B petitions. This is the final step of a 3-stage reinstatement of premium processing for H-1B petitions. After the nearly 6-month suspension, which started last August, USCIS first began accepting premium processing on cap-subject H-1B petitions filed last year. Then last month it reinstated premium processing for any H-1B petition filed prior to December 21, 2018.

USCIS’s policy on premium processing suspensions began a year ago in April when it announced that cap-subject H-1B petitions could not be filed with premium processing. It then extended and expanded the suspension in August 2018 to include all H-1B petitions.

It remains to be seen if USCIS will be able to honor premium processing requests on the cap-subject H-1B petitions that will be filed starting April 1. Considering the many backlogged H-1Bs that will certainly interfile premium processing requests, we expect that USCIS will receive thousands of requests in the coming days. Coupled with that is the recent announcement that H-4 EADs will likely be going away soon and the new biometrics requirements for dependent spouses, so many of those corresponding H-1B extensions will likely be filed with premium processing as well.
USCIS’s rate hike on premium processing requests, from $1225 to $1410, is now in effect, so any new requests should be accompanied by the higher fee.
For further guidance or case-specific questions, please contact your Graham Adair representative. For more frequent updates, please follow us on Twitter (@GrahamAdairLaw).

USCIS Announces It Will Resume Premium Processing For H-1B Petitions Filed On Or Before Dec. 21, 2018

USCIS has announced that it will resume premium processing this Tuesday, Feb. 19, 2019 for all H-1B petitions filed on or before Dec. 21, 2018. If you requested premium processing service and received a transfer notice for a pending H-1B petition, then you must submit a premium processing request to the service center now handling the petition. If your petition was transferred and you send your premium processing request to the wrong center, USCIS will forward it to the petition’s current location. However, the premium processing clock will not start until the premium processing request has been received at the correct center.

Remember to include a copy of the transfer notice with your premium processing request to avoid delays. If you received a request for evidence (RFE) for a pending petition, you should also include the RFE response with the premium processing request.

USCIS has been slowly reinstating premium processing for H-1Bs, which started on Jan. 28, when USCIS resumed premium processing for FY 2019 cap-subject petitions, including those eligible for the advanced degree exemption. However, the temporary suspension of premium processing remains in effect for applicable H-1B petitions filed on or after Dec. 22, 2018.

If you have any questions, please feel free to contact your Graham Adair representative. For more frequent updates, please follow us on Twitter (@GrahamAdairLaw).

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USCIS to Publish Revised Form I-539 and New Form I-539A

The USCIS recently announced that it has revised its Form I-539, Application to Extend/Change Nonimmigrant Status. The new form will be available on the USCIS website on March 11, 2019. After that date, the USCIS will only accept the revised version of Form I-539.

Form I-539 is used for dependents of an H-1B visa applicant, who is changing visa status, or for dependents extending their current H-4 status.

Starting March 11, 2019, USCIS will ONLY accept the revised Form I-539 with an edition date of February 04, 2019. USCIS will reject a Form I-539 dated December 23, 2016 or earlier, and it appears that there is no grace period.

On March 11, 2019, it will also publish a new Form I-539A, Supplemental Information for Application to Extend/Change Nonimmigrant Status. Form I-539A replaces the Supplement A provided in previous versions of Form I-539. Form I-539A can only be submitted with Form I-539; it cannot be filed as a standalone.

According to the USCIS website, the revised Form I-539 will include the following significant changes:

  • Every co-applicant included on the primary applicant’s Form I-539 must submit and sign a separate Form I-539A, which will be available on the USCIS’s Form I-539 webpage on March 11, 2019. Parents or guardians may sign on behalf of children under 14 or any co-applicant not mentally competent to sign.
  • Every applicant and co-applicant must pay an $85 biometric services fee, except certain A, G, and NATO nonimmigrants as noted in the new Form I-539 Instructions to be published on March 11, 2019.
  • Every applicant and co-applicant will receive a biometric services appointment notice, regardless of age, containing their individual receipt number. The biometric services appointments will be scheduled at the Application Support Center (ASC) closest to the primary applicant’s address. Co-applicants who wish to be scheduled at a different ASC location should file a separate Form I-539.
USCIS will reject any Form I-539 that is missing any of the required signatures or biometrics fees, including those required for Form I-539A.
If you have any questions, please feel free to contact your Graham Adair representative. For more frequent updates, please follow us on Twitter (@GrahamAdairLaw).
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