In this issue
- USCIS Announces Public Charge Rule Implementation Following Supreme Court Stay of Nationwide Injunctions
- Trump Administration Restricts U.S. Entry of Travelers From and Through China Due to Coronavirus Risk
- Trump Administration Suspends U.S. Entry, With Exceptions, of National from Six New Countries
- USCIS Changes Adjudication Process for EB-5 Visa Petitions to 'Visa Availability Approach'
- USIS Announces I-9 Form Changes
- Biometrics Collection Guidance Updated
- USCIS Updated Process for Accepting Petitions for Relatives Abroad
- State Department Issues Final Rule Ordering Denials of B Visas to Combat 'Birth Tourism'
- USCIS Announces Termination of Iranian Eligibility for E-1 and E-2 Nonimmigrant Classification Based on Treaty
- USCIS Reopens, Extends Comment Period for Fee Increases
- USCIS Releases Final FY 2019 Statistics
- Iranian-Americans Stopped, Questioned When Returning From Canada
- USCIS Publishes Notice 'Formally Announcing' Implementation of Electronic H-1B Registration Process and Timeframe
USCIS Announces Public Charge Rule Implementation Following Supreme Court Stay of Nationwide Injunctions
U.S. Citizenship and Immigration Services (USCIS) announced that it will implement the Inadmissibility on Public Charge Grounds final rule on February 24, 2020, except in Illinois, where the rule remains enjoined by a federal court as of January 30, 2020. Earlier, on January 27, 2020, the Supreme Court stayed the order of a New York federal court granting a nationwide injunction against the implementation of the public charge rule.
Among other things, the final rule includes a requirement that those seeking to adjust status to permanent residence or seeking an extension of stay or change of status demonstrate that they have not received public benefits over a designated threshold. The final rule considers a noncitizen a public charge if he or she receives certain public benefits for more than 12 months in the aggregate in any 36-month period, such that the receipt of two benefits in one month counts as two months. USCIS will also consider whether a noncitizen seeking an extension of stay or change of status has received certain public benefits since obtaining the nonimmigrant status he or she seeks to extend or from which he or she seeks to change.
Except for the state of Illinois, USCIS said it will apply the final rule to applications and petitions postmarked (or submitted electronically) on or after February 24, 2020. USCIS said it will post updated forms, submission instructions, and Policy Manual guidance on the USCIS website during the week of February 3, 2020, "to give applicants, petitioners, and others ample time to review updated procedures and adjust filing methods." In the coming weeks, the agency said, it plans to hold a public engagement for "immigration attorneys, industry representatives, and other relevant groups to discuss the final rule."
Trump Administration Restricts U.S. Entry of Travelers From and Through China Due to Coronavirus Risk
On January 31, 2020, President Trump issued a proclamation effective February 2, 2020, restricting and limiting entry into the United States of "all aliens who were physically present within the People's Republic of China, excluding the Special Administrative Regions of Hong Kong and Macau, during the 14-day period preceding their entry or attempted entry into the United States." The proclamation states that this action is necessary because "[t]he potential for widespread transmission of the [coronavirus] by infected individuals seeking to enter the United States threatens the security of our transportation system and infrastructure and the national security." Other countries announcing similar travel restrictions include Australia, Italy, Japan, Pakistan, and Russia.
The proclamation lists exceptions, such as lawful permanent residents (LPRs) of the United States, spouses and children of U.S. citizens or LPRs, air and sea crews, and others. It includes details about medical screening and quarantining, and the responsibilities of air carriers.
Trump Administration Suspends U.S. Entry, With Exceptions, of National from Six New Countries
On January 31, 2020, the Trump administration announced suspension of entry into the United States for nationals of six new countries, with some exceptions: Burma (Myanmar), Eritrea, Kyrgyzstan, Nigeria, Sudan, and Tanzania, "until those countries address their identified deficiencies" related to security and information-sharing issues. The proclamation specifies that the restrictions generally are on immigrant visa travel by those outside the United States and not on nonimmigrant visa travel. The proclamation exempts special immigrant visas for those who have helped the United States.
The proclamation states country-by-country exceptions to the ban. For example, diversity immigrants, but no others, from Sudan and Tanzania are suspended. The proclamation takes effect on February 21, 2020.
USCIS Changes Adjudication Process for EB-5 Visa Petitions to 'Visa Availability Approach'
U.S. Citizenship and Immigration Services (USCIS) announced a process change for Form I-526, Immigrant Petition by Alien Investor, "from a first-in, first-out basis to a visa availability approach."
"Changing our approach from a first-in, first-out adjudication process to one that prioritizes petitions connected to individuals from countries where visas are currently available better aligns the EB-5 program with congressional intent and makes it more consistent with other USCIS operations," said USCIS Deputy Director Mark Koumans. The new visa availability approach prioritizes petitions "where visas are immediately available, or soon available, and will not create legally binding rights or change substantive requirements," the agency noted. Applicants from countries where visas are immediately available "will now be better able to use their annual per-country allocation of EB-5 visas." USCIS said this new approach, which takes effect March 31, 2020, will apply to petitions pending as of the effective date of the change.
USIS Announces I-9 Form Changes
As of January 31, 2020, employers should begin using a new version of the Form I-9 (version 10/21/2019, expires 10/31/2022). U.S. Citizenship and Immigration Services (USCIS) says the old form will become obsolete on April 30, 2020. Employers may use the old form until that date.
Changes to the Form I-9 include:
- Addition of Eswatini and North Macedonia to the Country of Issuance field in Section 1 and the foreign passport issuing authority field in Section 2 per those countries' recent name changes. These changes are only visible when completing the fillable Form I-9 on a computer.
- Clarification of who can act as an authorized representative on behalf of an employer
- Updating of USCIS website addresses
- Clarification of acceptable documents
- Updating the process for requesting the paper Form I-9
- Updating the DHS Privacy Notice
Biometrics Collection Guidance Updated
U.S. Citizenship and Immigration Services (USCIS) announced updates to its policy guidance concerning mobile biometrics services and fingerprint waivers:
- USCIS will not provide mobile biometrics services in prisons or jails for individuals who cannot attend their Applicant Support Center (ASC) appointments due to incarceration or detention. This policy applies only to individuals held in non-Department of Homeland Security (DHS) custody. For those in DHS custody, U.S. Immigration and Customs Enforcement will continue to collect biometrics.
- An approved fingerprint waiver is tied to the specific petition, request, or application listed on notice of the appointment for submission of biometrics at the ASC. In other words, someone cannot use an approved waiver for any other biometrics requirement for any future filings. Individuals may qualify for a waiver of the fingerprint requirement if they cannot provide fingerprints because of a medical condition.
USCIS Updated Process for Accepting Petitions for Relatives Abroad
U.S. Citizenship and Immigration Services (USCIS) announced that Form I-130, Petition for Alien Relative, will only be processed domestically by USCIS or internationally by the Department of State (DOS) in certain circumstances beginning February 1, 2020.
DOS will assume responsibility for certain services previously provided at USCIS international offices, services that DOS already provides in countries where USCIS does not have a presence. Eligible active-duty service members assigned overseas will file their Forms I-130 locally with DOS, as will certain non-military petitioners who meet specific criteria for consular processing.
Generally, DOS will process a Form I-130 locally if the petition falls under blanket authorization criteria, as defined by USCIS
- Temporary blanket authorizations for instances of prolonged or severe civil strife or a natural disaster; or
- Blanket authorization for U.S. service members assigned to military bases abroad.
In addition to these blanket authorizations, DOS maintains discretion to accept Form I-130 if a U.S. citizen petitioner meets the "exceptional circumstance" criteria outlined in the USCIS Policy Manual.
All other petitioners residing overseas must file Form I-130 online or by mail through the USCIS Dallas Lockbox facility for domestic processing.
State Department Issues Final Rule Ordering Denials of B Visas to Combat 'Birth Tourism'
The Department of State's Bureau of Consular Affairs has amended its regulation governing the issuance of visas in the ''B'' nonimmigrant classification for temporary visitors for pleasure, effective January 24, 2020. The final rule establishes that travel to the United States with the primary purpose of obtaining U.S. citizenship for a child by giving birth in the United States is an impermissible basis for the issuance of a B nonimmigrant visa. Consequently, a consular officer "shall deny a B nonimmigrant visa to an alien who he or she has reason to believe intends to travel for this primary purpose," the rule states, noting that this rule is an effort to combat the "birth tourism industry" as a matter of national security.
The final rule also codifies a requirement that a B nonimmigrant visa applicant who seeks medical treatment in the United States must demonstrate, to the satisfaction of the consular officer, the arrangements for such treatment and establish the ability to pay all costs associated with such treatment. The rule establishes a "rebuttable presumption that a 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 the child."
Although the regulation amends the part pertaining to visitors for pleasure, the language is broad enough to subject B-1 business visitor applicants to the rebuttable presumption. The rule would thus also adversely affect women who seek to come to the United States to engage in legitimate business activities, which includes business meetings and entrepreneurial activities. The rule only applies to visa applicants at U.S. consular posts and not to visa waiver applicants whose first opportunity to establish their eligibility as visitors is at a U.S. port of entry. As of January 23, 2020, no guidance has been issued by U.S. Customs and Border Protection HQ to ports of entry concerning the final rule.
The Department said the rule is exempt from notice and comment under the foreign affairs exemption of the Administrative Procedure Act: "Opening this pronouncement of foreign policy to public comment, including comment from foreign government entities themselves, and requiring the Department to respond publicly to pointed questions regarding foreign policy decisions would have definitely undesirable international consequences."
USCIS Announces Termination of Iranian Eligibility for E-1 and E-2 Nonimmigrant Classification Based on Treaty
U.S. Citizenship and Immigration Services (USCIS) announced on January 23, 2020, that nationals of Iran and their dependents are no longer eligible to change to or extend their stays in E-1 or E-2 nonimmigrant status on the basis of the 1955 Treaty of Amity, Economic Relations, and Consular Rights between the United States and Iran due to the treaty's termination.
USCIS said that those who are currently in valid E–1 or E–2 status on the basis of the Treaty of Amity, including their family members who are also in valid E status, must depart the United States upon expiration of their authorized period of stay in the United States, unless otherwise authorized to remain in the United States (e.g., pursuant to a change of status to another nonimmigrant status or adjustment of status to lawful permanent residence). The changes described in the notice do not prevent Iranian nationals and their dependents from seeking admission in, or applying for a grant of, another nonimmigrant visa classification for which they believe they can establish eligibility under U.S. immigration law, the agency noted.
USCIS Reopens, Extends Comment Period for Fee Increases
U.S. Citizenship and Immigration Services (USCIS) has reopened and extended the comment period on its proposed rule raising certain fees for immigration services and benefits to February 10, 2020.
USCIS Releases Final FY 2019 Statistics
U.S. Citizenship and Immigration Services (USCIS) has released its final fiscal year (FY) 2019 agency statistics. They include naturalizations, green cards, employment authorizations, and protected populations, among other categories. Highlights from FY 2019 include:
- USCIS naturalized 834,000 new citizens, which the agency said was an 11-year high.
- USCIS granted lawful permanent residence to nearly 577,000 individuals.
- USCIS received nearly 2.2 million employment authorization applications and approved more than 500,000 petitions for nonimmigrant workers in FY 2019, including specialty occupation, temporary agricultural and non-agricultural, and other workers.
- USCIS processed more than 40 million cases through E-Verify.
Iranian-Americans Stopped, Questioned When Returning From Canada
Following closely on the heels of heightened tensions between the United States and Iran, reports have surfaced of more than 60 Iranian-Americans being held for questioning when returning from Canada via Washington State. The questions reportedly included political opinions in some cases. Most were released, some after up to 10 hours of questioning. Others were denied entry, at least temporarily.
A spokesperson for U.S. Customs and Border Protection (CBP) said, "Social media posts that CBP is detaining Iranian-Americans and refusing their entry into the U.S. because of their country of origin are false." Meanwhile, Washington's Lt. Governor Cyrus Habib said that he personally received worrisome messages from friends that they or their family members were stopped and questioned at the Peace Arch border crossing at Blaine, Washington.
Read news articles, NYTimes and NewsWeek
The Council on American-Islamic Relations (CAIR) has published "know your rights" materials in many languages, including "Know Your Rights While Traveling."
USCIS Publishes Notice 'Formally Announcing' Implementation of Electronic H-1B Registration Process and Timeframe
On January 9, 2020, U.S. Citizenship and Immigration Services (USCIS) published a Federal Register notice formally announcing implementation of the H-1B registration process for fiscal year 2021 H-1B cap-subject petitions.
USCIS will open an initial registration period from March 1, 2020, through March 20, 2020, for the FY 2021 H-1B numerical allocations. The agency released the following details:
- During this timeframe, H-1B cap-subject petitioners, including those eligible for the advanced degree exemption, seeking to file a FY 2021 H-1B cap petition must 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 person for whom they seek to file an H-1B cap-subject petition. Duplicate registrations are prohibited.
- As described in the H-1B registration final rule, if more than a sufficient number of registrations are received, USCIS will randomly select the number of registrations projected as needed to reach the FY 2021 H-1B numerical allocations after the initial registration period closes and notify registrants with selected registrations no later than March 31, 2020.
- Prospective petitioners with selected registrations will be eligible to file a FY 2021 cap-subject petition only for the person named in the registration and within the filing period indicated on the eligibility notice.
- Employers will be notified by USCIS of the exact amount of time allowed for filing the H-1B petition, which will in all cases be at least 90 days but may be longer at the discretion of USCIS. Employers will have the ability to file their petitions as soon as eligible (i.e., by April 1) to allow the beneficiary to obtain cap-gap, if required.
- USCIS may determine it is necessary to continue accepting registrations, or open an additional registration period, if it does not receive enough registrations and subsequent petitions projected to reach the numerical allocations.
The Alliance of Business Immigration Lawyers recommends a thorough evaluation of any potential H-1B petition even before submitting the registration. For example, there ought to be preliminary discussions on education credentials, occupational classifications, wage levels, job descriptions, proving the specialty occupation, and establishing the nexus between the petitioner and third-party sites all before submitting a registration. It would be most unfortunate for an employer to be notified of a selection only to be later advised that their H-1B petition would likely be denied due to a degree or specialty occupation issue.
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: