In this issue
- Changes in Public Charge Ground of Inadmissibility
- USCIS Updates Filing Addresses for Some I-129 Petitions
- USCIS Announces Citizenship and Assimilation Grant Opportunities
- Expedited Removal Expands to Interior of United States
- USCIS Amends EB-5 Regulations, Raising Minimum Investment Amounts and Modifying TEA Designations
- H-2B Petitioners Must Include Temporary Labor Certification Final Determination With Form I-129
- USCIS Ombudsman Says EAD Help Requests Constituted Single Largest Source of Work in 2018, Recommends Changes to H-1B Program Implementation Under BAHA
- House Holds Hearing on USCIS Policy Changes, Processing Delays
- USCIS Announces Changes to Naturalization Test
- State Dept. Announces Diversity Lottery 2020 Results
- ICE Moving Forward With Arrests of Immigrants and Family Members, Trump Says
- House Passes Bill to Eliminate Per-Country Cap on Employment-Based Immigrants
- Executives of Staffing Companies Charged With H-1B Visa Fraud
- New Publications and Items of Interest
Changes in Public Charge Ground of Inadmissibility
On Wednesday, August 14, 2019, DHS published a final rule governing the INA §212(a)(4) public charge grounds of inadmissibility. The rule is scheduled to go into effect after 60 days, on October 15, 2019.
Summary of Rule
The DHS final rule dramatically changes the standard by which the Department determines whether an applicant for adjustment of status or admission is "likely at any time to become a public charge" and therefore inadmissible to the United Under the final rule at 8 CFR 212.21(a), USCIS removes the consideration of whether an individual is primarily dependent on public benefits, redefining public charge as a noncitizen who receives a specified public benefit 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 final rule defines a public benefit as:
- Any federal, state, local, or tribal cash assistance for income maintenance, including:
- Social Security Income (SSI);
- Temporary Assistance for Needy Families (TANF);
- Federal, state, or local cash benefits programs for income maintenance (often called "General Assistance" in the State context, but which also exist under other names);
- Supplemental Nutrition Assistance Program (SNAP),;
- Section 8 Housing Assistance under the Housing Choice Voucher Program as administered by HUD;
- Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation) under Section 8 of the U.S. Housing Act of 1937;
- Medicaid, with certain exceptions, such as benefits received by individuals under the age of 21 and pregnant women (or for a period of 60 days after the last day of pregnancy); and
- Public housing under section 9 of the U.S. Housing Act of 1937
An affidavit of support will no longer be determinative to whether an individual is likely at any time in the future to become a public charge. Rather, to make that assessment, adjudicator will apply a complex “totality of circumstances” test that weighs the foreign national’s age; health; family status; education and skills; and assets, resources, and financial status, taking into account a broad range of positive and negative factors.
One heavily weighted negative factor is an applicant's receipt of specified public benefits for 12 or more months within any 36-month period. Critically, however, DHS will not regard as a negative factor the receipt of specified benefits prior to the rule's effective date, with the exception of cash assistance and long-term institutionalization benefits that DHS already considers relevant to the public charge determination under current policy.
Under the final rule, DHS will also conduct a more limited public charge determination of non-immigrants seeking a change or extension of status, by removing the future-looking requirement of the public charge determination, and only considering whether the noncitizen has received designated benefits for more than 12 months in the aggregate within a 36-month period since obtaining the non-immigrant status they seek to change from or extend, through the adjudication of that request.
USCIS Updates Filing Addresses for Some I-129 Petitions
Though no normal announcement was made, USCIS has updated the direct filing addresses for Form I-129, Petition for a Nonimmigrant Worker. Specifically, changes were made on the USCIS webpage for the filing addresses for H-1B cap-exempt petitions for extension of stay, change of status, concurrent employment, consular notification, and amended petitions, excluding those filed for H-1B cap-exempt entities, H-1B cap-exempt petitions based on a Conrad/IGA waiver or Guam, and all H-1B1, H-1B2, and H-1B3 petitions.
Petitions listed on the USCIS webpage under “Direct Filing Addresses for Form I-129, Petition for a Nonimmigrant Worker,” under the dropdown box entitled, “All Other H-1B Petitions (H-1B extension of stay, change of status, concurrent employment, POE/PFI/consular notification, and amended petitions),” are now accepted at:
- California Service Center (CSC),
- Nebraska Service Center (NSC),
- Texas Service Center (TSC), and
- Vermont Service Center (VSC)
USCIS Announces Citizenship and Assimilation Grant Opportunities
On July 30, USCIS announced it would accept applications for two funding opportunities under the Citizenship and Assimilation Grant Program, potentially providing $10 million in grants for citizenship preparation programs. The grants are available to organizations that prepare lawful permanent residents for naturalization, promoting knowledge of English, U.S. history, and civics.
There are two different grant opportunities:
- The Citizenship Instruction and Naturalization Application Services grant opportunity will fund up to 36 organizations offering both citizenship instruction and naturalization application services to lawful permanent residents.
- The Refugee and Asylee Assimilation Program grant opportunity will fund up to four organizations to provide individualized services to lawful permanent residents who entered the United States under the U.S. Refugee Admissions Program or were granted asylum. These services will assist these individuals in acquiring knowledge and skills leading the grant aims to promote long-term assimilation through the education of lawful permanent residents who strive for naturalization but lack the instruction, information, and services necessary to attain it.
Applications for either of these grant opportunities are due by August 13, 2019.
Within 30 days of receiving the award, all funded grant recipients must enroll in E-Verify as a regular employer and remain in good standing with E-Verify throughout the entire period of grant performance. USCIS projects its announcement of award recipients to occur in September.
To apply for either funding opportunity
Click here for more information on the Citizenship and Assimilation Grant Program for FY 2019
Click here to email the USCIS Office of Citizenship.
Expedited Removal Expands to Interior of United States
With immediate effect, the Department of Homeland Security (DHS) issued a notice on July 23, 2019, to place certain persons determined to be inadmissible in expedited removal, with limited exceptions. Affected individuals include those who have not been admitted or paroled into the United States and who have not "affirmatively shown, to the satisfaction of an immigration officer, that they have been physically present in the United States continuously for the two-year period immediately preceding the date of the determination of inadmissibility."
The notice makes the following points, among others:
- Currently, immigration officers can apply expedited removal "to aliens encountered anywhere in the United States for up to two years after the alien arrived in the United States, provided that the alien arrived by sea and the other conditions for expedited removal are satisfied."
- For those who entered the United States by crossing a land border, DHS permits the use of expedited removal "if the aliens were encountered by an immigration officer within 100 air miles of the U.S. international land border and were continuously present in the United States for less than 14 days immediately prior to that encounter."
- The DHS Secretary has the "sole and unreviewable discretion" under the Immigration and Nationality Act "to modify at any time the discretionary limits on the scope of the expedited removal designation."
- The Acting DHS Secretary is exercising his statutory authority to designate several categories of aliens not previously designated for expedited removal:
- Aliens who did not arrive by sea who are encountered anywhere in the United States more than 100 air miles from a U.S. international land border, and who have been continuously present in the United States for less than two years; and
- Aliens who did not arrive by sea who are encountered within 100 air miles from a U.S. international and border and who have been continuously presenting the United States for at least 14 days but for less than two years.
- Aliens otherwise subject to expedited removal who indicate either an intention to apply for asylum or a fear of persecution or torture will be given further review by an asylum officer, including an opportunity to establish "credible fear" and thus potential eligibility for asylum.
- An alien otherwise subject to expedited removal is given a "reasonable opportunity to establish to the satisfaction of the examining immigration officer that he or she was admitted or paroled into the United States." Aliens determined by immigration officers to be subject to expedited removal nonetheless "will receive prompt review of that determination if they claim under oath, after being warned of the penalties for perjury, that they have been admitted for permanent residence, admitted as a refugee, granted asylum, or are a U.S. citizen."
This is a major expansion of expedited removal. An estimate of at least 20,000 additional immigrants per year may be subject to expedited removal under the new policy. The American Civil Liberties Union (ACLU) quickly put out a statement calling the policy "unlawful," noting that under the plan, "immigrants who have lived here for years would be deported with less due process than people get in traffic court," and vowing to "sue to end this policy quickly." In the meantime, immigration lawyers are counseling clients of the need to be able to quickly document that they have been in the United States for at least two years, including carrying such documentation with them at all times.
Written comments may be submitted by September 23, 2019, via the method set forth in the DHS notice.
Read the DHS Federal Register notice
Read the ACLU statement
USCIS Amends EB-5 Regulations, Raising Minimum Investment Amounts and Modifying TEA Designations
U.S. Citizenship and Immigration Services (USCIS) has published a final rule, effective November 21, 2019, amending the regulations governing the employment-based fifth preference (EB-5) immigrant investor classification and associated regional centers to reflect statutory changes and "modernize" the EB-5 program. The final rule provides priority date retention for certain EB-5 investors, increases the required minimum investment amounts, changes the targeted employment area (TEA) designation process, and clarifies USCIS procedures for the removal of conditions on permanent residence.
Among other things, the final rule:
- Clarifies that the priority date of a petition for classification as an investor is the date the petition is properly filed
- Clarifies that a petitioner with multiple approved immigrant petitions for classification as an investor is entitled to the earliest qualifying priority date
- Retains the 50 percent minimum investment differential between a TEA and a non-TEA instead of changing the differential to 25 percent as proposed, thereby increasing the minimum investment amount in a TEA from $500,000 to $900,000 rather than $1.35 million, as DHS initially proposed (the minimum non-TEA investment will be $1.8 million)
- Bases future inflation adjustments on the initial investment amount set by Congress in 1990 rather than on the most recent inflation adjustment
- Modifies the original proposal that any city or town with a population of 20,000 or more may qualify as a TEA, to provide that only cities and towns with a population of 20,000 or more outside of metropolitan statistical areas may qualify as a TEA, eliminates a state's ability to designate certain geographic and political subdivisions as high unemployment areas, and gives the Department of Homeland Security responsibility for directly making TEA designations "based on revised requirements in the regulation limiting the composition of census tract-based TEAs"
Practitioners are expecting a rush on EB-5 investments in the months before the effective date of November 21, 2019, which could increase the already long waits for EB-5 visas for those from high-volume countries by years, assuming Congress does not allocate additional visa numbers or eliminate per-country caps.
Read the USCIS announcement
Read the final rule
H-2B Petitioners Must Include Temporary Labor Certification Final Determination With Form I-129
U.S. Citizenship and Immigration Services (USCIS) announced on July 26, 2019, that employers who file an H-2B application for temporary labor certification in FLAG will only receive a temporary labor certification electronically, as of July 3, when the Department of Labor implemented its new Foreign Labor Certification Application Gateway (FLAG) system for the H-2B temporary nonagricultural worker program. Those whose applications for a temporary labor certification were processed in FLAG must include a printed copy of the electronic one-page "final determination" of their H-2B temporary labor certification approval when submitting the Form I-129, Petition for a Nonimmigrant Worker.
USCIS said it will consider a printed copy of the final determination as the original and approved temporary labor certification. Applicants must also ensure that the DOL Case Number identified on the final determination matches the ETA Case Number provided in Part 5, Item 2 of the I-129.
USCIS Ombudsman Says EAD Help Requests Constituted Single Largest Source of Work in 2018, Recommends Changes to H-1B Program Implementation Under BAHA
The U.S. Citizenship and Immigration Services (USCIS) Ombudsman recently released its 2019 Annual Report.
The report notes that requests for help related to employment authorization documents (EADs) constituted the single largest source of work for the Ombudsman's Case Team in calendar year 2018—over a third of its total case load. During a four-month period between December 2017 and March 2018, the number of incoming EAD cases spiked 400 percent, most related to processing delays.
The Ombudsman also noted that it explored in depth the H-1B visa program. The lengthy, detailed H-1B section includes 290 footnotes and several recommendations for changing implementation of the H-1B program by USCIS and the Department of Labor to align with President Trump's "Buy American and Hire American" (BAHA) executive order.
Read the USCIS Ombudsman's Annual Report for 2019
Read the BAHA order
House Holds Hearing on USCIS Policy Changes, Processing Delays
On July 16, 2019, the House of Representatives held a hearing on policy changes and processing delays at U.S. Citizenship and Immigration Services (USCIS). Witnesses included representatives from USCIS, the American Immigration Lawyers Association (AILA), Catholic Legal Immigration Network (CLINIC), the Immigrant Legal Resource Center, and the Center for Immigration Studies. Statements were also submitted by various organizations.
Regarding policy changes, Jill Marie Bussey, CLINIC's Director of Advocacy, cited the expansion of in-person interview requirements and related "extreme vetting," new rules on requests for evidence and notices of intent to deny, elimination of the 90-day processing requirement for employment authorization documents, information services "modernization" that includes narrowing of the options and points of access for stakeholders to request information and services regarding their pending cases, the ending of self-scheduling of in-person InfoPass appointments at field offices, and diverting resources to enforcement-focused activities. All of these policy changes, she said, are contrary to USCIS's mission, contribute to backlogs and inefficiencies, and create unnecessary barriers for applicants and their legal representatives, are not justified by data, and thus have contributed to significant consequences and cascading effects for employers, legal service providers, individuals and families, and USCIS and other agencies.
With respect to processing delays, Marketa Lindt, AILA President, testified that USCIS's average case processing time surged by 46 percent from FY 2016 to FY 2018 and by 91 percent from FY 2014 to FY 2018. "[I]n FY 2018 the agency processed 94 percent of its benefit form types more slowly than in FY 2014. For many of these form types, processing times more than doubled in recent years, and some tripled. This past fiscal year, the agency's overall backlog of delayed cases exceeded 5.69 million, a 69 percent increase over FY 2014.”
Read the hearing testimony and statements
USCIS Announces Changes to Naturalization Test
On July 19, 2019, U.S. Citizenship and Immigration Services (USCIS) announced that it is revising the current naturalization test in English and civics.
In December 2018, USCIS formed a naturalization test revision working group with members from across the agency. The working group is reviewing and updating the naturalization test questions. The group will also assess potential changes to the speaking portion of the test. USCIS said it "is soliciting the input of experts in the field of adult education to ensure that this process is fair and transparent." Details of the changes being considered were not released. USCIS plans to pilot the test revision this fall, and to set an implementation date in December 2020 or early 2021. USCIS is also formalizing a decennial revision process to allow for updates every 10 years. Critics have expressed concerns that the announcement is a continuation of efforts by USCIS to make naturalization more difficult, including dramatically slowing down the processing of naturalization applications.
Read the USCIS announcement
Read the USCIS memorandum on the revisions
State Dept. Announces Diversity Lottery 2020 Results
The Kentucky Consular Center has registered and notified the winners of the DV-2020 diversity lottery. Approximately 83,884 applicants have been registered and notified and may now apply for an immigrant visa, the Department of State (DOS) announced. Since it is likely that some of the persons registered will not pursue their cases to visa issuance, the agency said this larger figure should ensure that all DV-2020 numbers will be used during fiscal year 2020 (October 1, 2019, to September 30, 2020).
Applicants registered for the DV-2020 program were selected at random from 14,722,798 qualified entries (23,182,554 with derivatives) received during the 34-day application period in late 2018. The visas have been apportioned among six geographic regions with a maximum of seven percent available to persons born in any single country.
During the visa interview, principal applicants must provide proof of a high school education or its equivalent, or show two years of work experience in an occupation that requires at least two years of training or experience within the past five years. DOS said that those selected will need to act on their immigrant visa applications quickly. Applicants should follow the instructions in their notification letters and must fully complete the information requested.
Click here for the DOS Visa Bulletin for August 2019 (scroll down to "E"), which includes a country-by-country list of the numbers,
ICE Moving Forward With Arrests of Immigrants and Family Members, Trump Says
President Trump told reporters recently that U.S. Immigration and Customs Enforcement (ICE) is moving forward with previously postponed operations to arrest and quickly deport thousands of immigrants and their family members who are in the United States without authorization. According to reports, some may be held in detention centers in Texas and Pennsylvania and others may be detained in hotel rooms while they are processed. It appeared as of press time that not nearly as many were detained as predicted, however.
Immigrants are being advised, among other things, to make emergency plans and that they are not legally required to open the door to ICE agents without a search warrant or court order. Some may have the right to reopen their immigration cases.
Some organizations helping immigrant families in need include KIND (Kids in Need of Defense), Women's Refugee Commission, Catholic Legal Immigration Network, ACLU Immigrants' Rights Projects, RAICES, Al Otro Lado, Florence Project, Lawyers for Good Government (Project Corazon Travel Fund), Justice in Motion, Immigrant Families Together, Innovation Law Lab, ActBlue, Lights for Liberty, United We Dream, American Immigration Council, National Immigration Law Center, Human Rights First, National Immigrant Justice Center, ALDEA-People Justice Center, American Immigration Council, Immigrant Justice Campaign, PIRC (Pennsylvania Immigration Resource Center), CIRC (Penn State Law Center for Immigrants' Rights Clinic), Annunciation House, HIAS, and Cornell Law School.
Additional resources and information for helping families at risk of deportation are listed below under "New Publications and Items of Interest." See also "ABIL Member/Firm News" below, which includes numerous news articles with related information and advice.
Read the relevant news articles: New York Times, Daily Mail, Quartz, Business Insider, Univision (Spanish)
House Passes Bill to Eliminate Per-Country Cap on Employment-Based Immigrants
The U.S. House of Representatives passed the "Fairness for High-Skilled Immigrants Act of 2019" (H.R. 1044) on July 10, 2019. The bill, introduced by Reps. Zoe Lofgren (D-CA) and Ken Buck (R-CO), would eliminate the per-country cap (numerical limitation) on employment-based immigrants and raise family-based per-country caps from 7 to 15 percent. The per-country cap provision would be implemented over a three-year phase-in period: during year one, no more than 85 percent of employment-based visas could be allocated to India or China; in years two and three, no more than 90 percent of employment-based visas could be allocated to those countries. An additional provision protects people who have immigrant visa petitions approved before September 30, 2019. The legislation is expected to benefit primarily Indian and Chinese workers, who constitute the largest proportion of H-1B skilled workers waiting for years in the U.S. green card backlog.
The bill will be considered by the Senate next. The Senate version, S. 386, was recently blocked by Rand Paul (R-Ky.), who said he wants to amend the bill with an accommodation for EB-3 nurses. Other recent developments on the Senate side included the addition of provisions strengthening H-1B specialty occupation enforcement requested by Sens. Mike Lee (R-Utah) and Charles Grassley (R-Iowa). Although the bill has bipartisan support, it is unclear whether it has a chance of passage.
Read the text and history of the House version
Read Rep. Lofgren's statement
Read the Senate version of the bill
Read the news reports: Bloomberg Law, Deseret News, Business Today
Executives of Staffing Companies Charged With H-1B Visa Fraud
Four executives of two information technology staffing companies have been arrested on charges of conspiracy to commit visa fraud, for fraudulently using the H-1B visa program to gain an unfair advantage over competitors. The conspiracy charge carries a maximum penalty of five years in prison and a $250,000 fine.
The defendants allegedly used staffing companies to recruit foreign nationals and sponsor them for H-1B visas. According to U.S. Citizenship and Immigration Services (USCIS), to expedite their visa applications, they filed H-1B applications falsely asserting that the foreign workers/beneficiaries had already secured positions at another company when in reality no such positions existed. Instead, the defendants used the fraudulent applications to build a "bench" of job candidates already admitted to the United States who could then be hired out immediately to client companies without the need to wait for visa application processing, giving the defendants an advantage over their competitors in the staffing industry, USCIS said.
Read the USCIS release
New Publications and Items of Interest
Advisories and tips:
- Community Advisory: Social Media, Criminalization, and Immigration has been published by the National Lawyers Guild's National Immigration Project. This advisory summarizes ways in which immigration agents may use social media against those in removal proceedings or involved in criminal cases.
- How to safeguard your data from searches at the border is the topic of several recent articles and blogs. See examples here and here.
- Listings and links to cases challenging executive orders, and related available pleadings
Government Agency Links
Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State's latest Visa Bulletin with the most recent cut-off dates for visa numbers: