As you know from our January 31 News Flash, the Department of Homeland Security’s Final Rule regarding Public Charge determinations has taken effect for all applications and petitions postmarked (or submitted electronically) on or after February 24, 2020. Initially, residents of Illinois were exempted from this implementation; however, the Supreme Court lifted the injunction for Illinois on Friday, so the rule took effect nationwide. This rule provides a drastic amendment to the way in which “public charge” grounds of inadmissibility are defined in the context of eligibility for immigration benefits. We summarized some of these changes in our October 10 News Flash, before implementation of the rule was first enjoined. Beginning yesterday, new versions of forms I-129, I-539, and I-485 incorporating the public charge requirements are now required.  

Effect on Green Card Applicants

I-485 applicants for adjustment of status (green cards) are required to complete a new Form I-944, Declaration of Self-Sufficiency, which will allow USCIS to conduct a closer review of their personal circumstances to determine whether they have used or are likely to use public benefits in the future. Applicants will be required to disclose significant financial and credit information, and to provide documentation, including copies of tax returns and a U.S. credit score and report. Under the new framework, applicant information will be reviewed under a “totality of the circumstances” test that will take into account the applicant’s: age; health; family status; assets, resources, and financial status; and education and skills. These factors will be weighed in their totality, with some weighed more positively and others more negatively, and no single factor will make an alien inadmissible. 

Effect on Nonimmigrants in the United States

Nonimmigrants applying for an extension of stay or a change of status to another nonimmigrant category will be required to disclose certain public benefits they receive or are certified to receive on or after February 24, 2020. Nonimmigrants will not be subject to a totality of the circumstances test and will not be required to submit Form I-944. If a nonimmigrant has received 12 months or more, in the aggregate, of public benefits within the 36-month period since obtaining their current nonimmigrant status (and since February 24, 2020), they will be ineligible to change or extend status in the United States. 

Visa Applicants Applying for Benefits at a U.S. Consulate

As explained in our February 24 News Flash, the Department of State (DOS) also implemented its Interim Final Rule yesterday (February 24, 2020). The DOS rule is similar to the DHS rule, in that DOS will apply a totality of the circumstances test to determine whether visa applicants (both immigrant and nonimmigrant) are likely, at any time in the future, to receive more than 12 months in the aggregate of public benefits within any 36-month period. DOS will look at past receipt of public benefits, and will take into account the applicant’s: age; health; family status; assets, resources, and financial status; education and skills; and visa classification sought. No one factor alone will be determinative. DOS will consider the following to be heavily-weighted positive factors: household income, assets and resources of at least 250% of the Federal Poverty Guidelines; work authorization with current annual income of at least 250% of the Federal Poverty Guidelines; private health insurance for use in the United States. 

Please note that certain classes of immigrants are exempt from the public charge ground of inadmissibility, such as refugees, asylees, T and U visa applicants, and certain self-petitioners under the Violence Against Women Act. However, most employment-based applicants are subject to the new rules.

As you know, USCIS is due to implement a new electronic registration process for H-1B cap petitions for FY2021. The new system will be comprised of three basic steps:

For more information, see our News Flash from earlier this month. If you would like assistance registering someone for the FY2021 H-1B cap lottery, please contact one our experienced attorneys as soon as possible. 

On January 31, USCIS released a new version of Form I-9, which must be used for all employment verifications and re-verifications completed on or after May 1, 2020. 

As a reminder, employers must complete Form I-9 for all employees in the U.S., and are responsible for retaining completed I-9s for inspection for a designated period of time after an employee leaves the company (either one year after the date of termination or three years after the hire date, whichever is later).

In response to the coronavirus outbreak in China, effective February 2, the Trump Administration issued a temporary ban on foreign nationals entering the United States who have visited China within 14 days of seeking admission. Such foreign nationals will be denied entry, with the exception of lawful permanent residents, immediate family members of U.S. citizens and lawful permanent residents, and certain others.

 

U.S. citizens who have visited China’s Hubei Province within 14 days before reentry to the United States will face a mandatory quarantine. Citizens returning from other parts of mainland China will face advanced screening and a self-imposed quarantine to monitor their health. U.S. permanent residents, immediate family of U.S. citizens and permanent residents, and others exempted from the entry ban are also subject to quarantine. All travelers subject to these restrictions will be redirected to one of 11 airports to undergo health screenings at a Center for Disease Control (CDC) quarantine station. Up do date information is available from the CDC . 

 

Effective February 3, visa services (including all regular visa appointments) at the U.S. Embassy and Consulates in China have been suspended until further notice.

 

The Trump Administration will reevaluate this ban every 15 days until the travel restrictions and quarantine requirements can be lifted. 

The Trump Administration’s Executive Order 13780, which among other things implemented travel restrictions on individuals from certain countries, was initially issued in March 2017 and has evolved several times since then. Most recently, on January 31, a new Presidential Proclamation was issued to expand the list of countries subject to travel restrictions (a.k.a. the "travel ban").  

At this time, certain individuals from the following countries are subject to U.S. travel restrictions: Eritrea, Iran, Kyrgyzstan, Libya, Myanmar (Burma), Nigeria, North Korea, Somalia, Sudan, Syria, Tanzania, Yemen and Venezuela (political officials only). 

Nationals from the newly-added countries (Eritrea, Kyrgyzstan, Myanmar, Nigeria, Sudan, and Tanzania) are not prohibited from obtaining new nonimmigrant visas, nor are existing visas cancelled. Furthermore, the Proclamation does not prevent individuals in the United States from applying for adjustment of status through Form I-485 (i.e. obtaining a green card while here). However, effective February 21, nationals of all six countries are now prohibited from obtaining immigrant visas at a U.S. Consulate abroad to enter the United States as lawful permanent residents. The ban also prohibits nationals of Sudan and Tanzania from entering the United States pursuant to the Diversity Visa Lottery.  

On January 23, 2020, the State Department published a new rule in the Federal Register amending its current regulation concerning the issuance of B (visitor) nonimmigrant visas to individuals applying for visas to visit “for pleasure.” The rule clarifies that tourism for the purpose of obtaining U.S. citizenship for a child by giving birth in the United States, or “birth tourism”, is not a permissible activity for a temporary visitor visa. 

Most significantly, the new Rule creates a rebuttable presumption “that any B nonimmigrant visa applicant who a consular officer has reason to believe will give birth during her stay in the United States is traveling for the primary purpose of obtaining U.S. citizenship for a child.” This presumption is considered fact until disproved. In order for an individual to rebut this presumption, the applicant must establish that her primary purpose for visiting the United States is not to give birth to a U.S. citizen child. DOS acknowledges that medical treatment for a complicated pregnancy, when demonstrated, may be sufficient to overcome this presumption, but this is not guaranteed.

The rule also codifies the current standards for obtaining a B nonimmigrant visa for the primary purpose of obtaining medical treatment. Such individuals are required to provide documentation showing that a physician and/or hospital has agreed to provide the treatment and that the visa applicant has the means to provide payment for all expenses.

The Chief of the Visa Control and Reporting Division, U.S. Department of State (DOS) provides periodic analyses of current immigrant visa trends and future projections, beyond the basic visa availability updates provided in the monthly Visa Bulletin. Following is a synopsis of the current trends in immigrant visa number availability, as of March 2020: 

 

There are five preference categories for the allotment of employment-based immigrant visa numbers, and four preference categories for family-based immigrant visa numbers. For purposes of this newsletter, we are including only the categories most applicable to our business clients. For additional information on other preference categories not included below, please contact the attorney with whom you work, or visit the State Department's website.  

Employment-Based Preference Categories

 

 

Family-Based Preference Category

Immigrant visa numbers are available only to an applicant whose priority date is earlier than the cut-off date listed in the charts below. "C" means current, i.e., numbers are available for all qualified applicants.   

Following are the relevant Visa Bulletin Final Action Dates for March 2020 (i.e. dates that allow an application to be adjudicated):

Dates for Filing:

The Dates for Filing are traditionally used by the State Department to initiate the immigrant visa interview process, with the expectation that those dates will become current (i.e. be listed on the Final Action Dates chart) within the next 8 to 12 months. USCIS announces each month on its website whether it will use the Final Action Dates or the Dates for Filing chart to accept I-485 applications. So far this Fiscal Year, USCIS has allowed individuals whose priority date is current based on the Dates for Filing chart to file their I-485 applications (with associated applications for EAD and Advance Parole), but those I-485s will not be adjudicated until the priority date becomes current on the Final Action Dates chart. 

Following are the relevant Visa Bulletin Dates for Filing for March 2020 (i.e. dates that allow an application to be filed with USCIS):

While processing times at USCIS and the Department of Labor (DOL) fluctuate, both agencies attempt to adjudicate cases on a first in - first out basis and in the order in which they were received. Based on reported processing times from those agencies and recent case adjudications at RSST Law Group, following are the average processing times for the most commonly-filed employment-based applications and petitions: