What's New in the World of Immigration?

12/16/2019 - Expect More Lawsuits And Restrictions On H-1B Visas In 2020

FROM FORBES 12/16/2019

The year 2020 is unlikely to be an improvement over 2019 for companies that hire foreign-born scientists and engineers on H-1B visas. Companies should expect 2020 to bring more restrictions.

An H-1B is generally the only practical way for an international student or a high-skilled foreign national educated abroad to work long-term in the United States. Under Trump administration policies, denial rates for H-1B petitions for initial employment (primarily new employees) quadrupled, “rising from 6% in FY 2015 to 24% through the third quarter of FY 2019,” according to a National Foundation for American Policy analysis. “The 12% denial rate for continuing employment [mostly for existing employees] is also historically high – 4 times higher than the denial rate of only 3% for H-1B petitions for continuing employment as recently as FY 2015.”

In a stable policy environment that adheres to the law and regulations, H-1B denial rates should be extremely low, since, given the time and expense, companies and attorneys only submit applications for individuals they believe meet the legal requirements.

Three developments in 2020 may affect H-1B visas. First, U.S. Citizenship and Immigration Services (USCIS) has announced it will implement an electronic registration for “petitioners seeking to file H-1B cap-subject petitions.” A $10 fee will be charged for each registration. “You may submit as many beneficiaries as you would like for one registrant (employer/agent) in one registration,” according to information on the USCIS H-1B registration tool released online. Employers would list each professional and he or she would be entered into the “lottery” held in April each year for 65,000 H-1B petitions and the 20,000-exemption from the annual limit for foreign nationals with advanced degrees from U.S. universities. “USCIS will open an initial registration period from March 1 through March 20, 2020,” according to an agency press release.

“The new H-1B registration system will likely dramatically increase initial applications,” said Dagmar Butte, a partner at Parker, Butte & Lane, in an interview. She thinks smaller employers potentially could be “squeezed out” under the new system. “In addition, since the government has not been entirely clear about the post-selection process and timing, it is likely that a scramble to complete and file petitions will ensue that will create significant time pressure on employers and their attorneys.”

This assumes the system is implemented in 2020. “Our worst nightmare is that the announced electronic registration system for the lottery either doesn’t work as intended or is stopped at the 11th hour and leaves hundreds of thousands of potential applications unprepared,” said Butte. “Most attorneys recommend that employers have at least a skeletal application ready to go in case USCIS decides to scrap the registration at the last minute.” There is also a potential for problems at the Department of Labor, which could experience an influx of labor condition applications (another part of the H-1B process) after the lottery selections are made.

11/29/2019 - USCIS Implements $10 Fee for H-1B Visa Registration

WASHINGTON—U.S. Citizenship and Immigration Services today announced a final rule that will require a $10 non-refundable fee for each H-1B registration submitted by petitioning employers, once it implements the electronic registration system. The registration fee is part of an agency-wide effort to modernize and more efficiently process applications to live or work in the United States.

The H-1B program allows companies in the United States to temporarily employ foreign workers in occupations that require the application of a body of highly specialized knowledge and a bachelor’s degree or higher in the specific specialty, or its equivalent.

Upon implementation of the electronic registration system, petitioners seeking to file H-1B cap-subject petitions, including those eligible for the advanced degree exemption, will first have to electronically register with USCIS during a designated registration period, unless the requirement is suspended.

“This effort will help implement a more efficient and effective H-1B cap selection process,” said USCIS Acting Director Ken Cuccinelli. “The electronic registration system is part of an agency-wide initiative to modernize our immigration system while deterring fraud, improving vetting procedures and strengthening program integrity.”

The final rule, Registration Fee Requirement for Petitioners Seeking to File H-1B Petitions on Behalf of Cap-Subject Aliens, is effective Dec. 9, 2019, and the fee will be required when registrations are submitted. USCIS is fee-funded, and this non-refundable fee will support the new electronic registration system to make the H-1B cap selection process more efficient for both petitioners and the agency.

USCIS is slated to implement the registration process for the fiscal year 2021 H-1B cap selection process, pending completed testing of the system. The agency will announce the implementation timeframe and initial registration period in the Federal Register once a formal decision has been made, and USCIS will offer ample notice to the public in advance of implementing the registration requirement.

USCIS published a notice of proposed rulemaking highlighting a registration fee on Sept. 4, 2019, which included a 30-day public comment period. USCIS received only 22 comments during that time, and has considered all submissions and offered public responses ahead of announcing the final rule, which is effective on Dec. 9.

08/15/2019 - Public Charge Policy: Current Rule vs New Rule

The below is the best summary I've seen so far explaining the current rule vs the new rule on Public Charge Policy.

On August 14, 2019, the Department of Homeland Security (DHS) published a final rule related to public charge in the Federal Register. According to DHS, the rule will not take effect until October 15, 2019. [The rule will not affect cases filed prior to October 15, 2019].

This new rule will mainly impact those seeking permanent resident status through family member petitions. The rule will not take effect until mid-October 2019. Until that time, all pending adjustment of status cases and those that are postmarked before October 15, 2019 will be adjudicated under current standards.

Additionally, many organizations have indicated they will file lawsuits challenging the legality of the rule. Thus, even after publication, legal challenges could delay implementation.

Here are a few important points regarding the public charge rule:

 The new rule interprets a provision of the Immigration and Nationality Act (INA) pertaining to inadmissibility. The inadmissibility ground at issue says a person is inadmissible if they are likely to become a public charge. INA § 212(a)(4). This law only applies to individuals seeking admission into the United States or applying for adjustment of status. This provision of the law does not apply to all immigrants.

 Public charge and this rule do not apply in the naturalization process, through which lawful permanent residents apply to become U.S. citizens.

What is the current law?

 Currently, immigration officers decide public charge by evaluating whether an applicant for a green card or an individual seeking to enter the United States on certain visas is likely to become primarily dependent on the government for support. Primary dependence refers to reliance on cash-aid for income support or long-term care paid for by the government.

 To decide whether an individual is a public charge, immigration officers rely on multiple factors specified in the INA. They must also rely on the “affidavit of support,” which is a contract signed by the immigrant’s sponsor , indicating that the sponsor will financially support the immigrant. This affidavit of support offers strong evidence that the immigrant will not become primarily dependent on the government.

 Under existing policy, immigration officers also consider whether an immigrant applying for a green card or admission to the United States has used cash aid (such as TANF, also known as “welfare,” or SSI) or long-term institutionalized care in the past. Immigrants who have used this form of assistance will have to show that it is not likely they will need these resources for support in the future.

 Use of publicly-funded health care, nutrition, and housing programs are not currently considered negative factors for purposes of public charge. Beginning on October 15, 2019, the new rule will consider some of these benefits in the public charge determination. This is a drastic change from longstanding policy.

What’s in the new rule?

 While the test for whether someone is likely at any time to become a public charge will still be prospective as required by the statute, the new rule redefines the definition of a public charge. Now, instead of assessing whether an applicant is likely to become primarily dependent on the government for income support, the new rule defines a public charge as a person who receives any number of public benefits for more than an aggregate of 12 months over any 36-month period of time. Each benefit used counts toward the 12-month calculation. For instance, if an applicant receives two different benefits in one month, that counts as two-months’ use of benefits.

 The rule expands the list of publicly-funded programs that immigration officers may consider when deciding whether someone is likely to become a public charge. Under the new rule, Medicaid, the Supplemental Nutrition Assistance Program (SNAP, formerly known as Food Stamps), Section 8 housing assistance and federally subsidized housing will be used as evidence that a green card or visa applicant is inadmissible under the public charge ground.

 The proposal also considers that all use of cash aid, including not just TANF and SSI but also any state or local cash assistance program, could make an individual inadmissible under the public charge ground.

 Benefits received by family members of the immigrant will still not be considered in the public charge determination. Additionally, Medicaid received by applicants while under age 21 or while pregnant are not considered. In addition, the proposal does not change long-standing policies that allow immigrants to access emergency medical care and disaster relief without public charge repercussions.

 It is important to remember that prior receipt of benefits is only one factor in the public charge test. The new rule sets out criteria for considering several factors in assessing the likelihood that a person will need more than 12 months of public benefits in aggregate over a 36-month period in the future. The rule also elaborates on criteria for considering financial status, size of family, age, education, skills and employment, among others.

 The rule allows immigration officers to consider English proficiency (positive), or lack of English proficiency (negative); medical conditions and availability of private health insurance; and past use of immigration fee waivers. The rule will require immigrants to attach a Declaration of Self-Sufficiency when applying for a green card in addition to the many forms already required.

 The rule creates “heavily weighted negative factors” and a couple “heavily weighted positive factors.” It is a heavily-weighted negative factor to receive more than 12 months of public benefits in the aggregate over the 36-month period of time before submitting the application for adjustment or admission. Heavily weighted positive factors include having a household income of at least 250% of the federal poverty level. It is not clear how an officer should decide a case that has a heavily weighted factor or both heavily weighted negative and positive factors.

 Bonds are possible where an immigration officer finds inadmissibility based on public charge. Bonds will be highly discretionary and the new rule says that some factors that will generally make an applicant ineligible for a bond.

This new rule, if implemented, will mainly impact those seeking permanent resident status through family member petitions. Immigrants should consult with an immigration expert who understands public charge to learn whether the public charge rule even applies to them or their family. Remember, many categories of immigrants are exempt from public charge. The rule will not take effect until mid-October. Until that time, all pending adjustment of status cases and those that are postmarked before October 15, 2019 will be adjudicated under current standards.

Existing policy is still in effect. The new rule will apply to adjustment of status applications postmarked on or after October 15, 2019 . The new rule will not apply to adjustment of status applications that are pending or postmarked before that date. Additionally, legal challenges may delay implementation.

The above summary was Published by the National Immigration Law Center

08/01/2019 - How to Shrink the USCIS Backlog in One Minute or Less

By: Jason Boyd, Policy Counsel with AILA’s Government Relations department.

Imagine if a multi-billion-dollar entity that has chronically failed to meet core organizational goals—a failure causing hardship for millions of customers—touted to those customers a “solution:” laxer goals.

This is no hypothetical. US Citizenship and Immigration Services (USCIS), the agency whose failure to timely process applications for immigration benefits is burdening millions of individuals, families, and American businesses nationwide, is now championing lowered standards for case processing as one solution.

During a July 16 Congressional hearing on its crisis-level case backlog, USCIS outlined various prongs of a backlog reduction plan—some of them constructive, others unacceptable. Its aim to “Redefine Processing Time Goals to Better Reflect True Cycle Times” falls squarely into the latter category. USCIS’s testimony indicates that, at minimum, the agency could lengthen the green card application processing time goal, currently set at 120 days.

While relaxation of this and other processing time benchmarks would technically reduce the backlog as USCIS commonly measures it, it would not improve actual processing times or the lives of applicants. The agency defines its “net backlog”—which officials often call simply “the backlog”—as the number of cases not adjudicated within processing time goals. Cases that USCIS cannot presently act on, such as applications with outstanding requests for supplemental evidence, are excluded from this figure.

Under this definition, the size of USCIS’s net backlog hinges on the processing time goals self-assigned by the agency. Faster goals would instantly increase the backlog by pushing more pending cases outside target thresholds. Slower goals would automatically shrink it. The new benchmarks would not necessarily shift processing times themselves, just USCIS’s determination of whether those times constitute a delay. In fact, even if processing times spike, laxer goals could send the net backlog into freefall. That plunge could project a misleading impression of improved agency performance, masking continued deterioration of USCIS services along with heightened customer hardship.

But this “solution” is troubling not just because it solves nothing. It also conveys an unwillingness to accept accountability for, and even promotes normalization of, the agency’s systemic failure to process cases efficiently. To “Redefine Processing Time Goals to Better Reflect True Cycle Times” is to change goals to accommodate underperformance rather than to change performance to meet goals. During the July 16 hearing, Rep. Joe Neguse (D-CO) underscored this point. He observed that, during his tenure as Executive Director of a consumer protection agency in Colorado, “it would not be received well if I said well, I’m going to simply change the processing time because we can’t meet it.”

USCIS offers unconvincing justifications for moving its goalposts. It cites a July 2018 report in which DHS’s Office of Inspector General found that the 120-day green card application processing time goal was “unrealistic.” But the report based this conclusion on USCIS adjudications as they are currently administered without meaningfully assessing their efficiency. As AILA has documented, inefficient policies pervade those adjudications. Such measures include an unnecessary in-person interview requirement for all employment-based green card applicants that, by the agency’s own admission, has slowed case processing since its implementation in October 2017. It should come as no surprise that wasteful, time-intensive policies like this one would render existing processing time goals less tenable. Rather than fix the policies, however, USCIS has resolved to loosen the goals.

USCIS also maintains that revisions to processing time goals “would set more realistic timelines for the public on how long they should expect to wait.” But those goals are distinct from the “current processing times” that USCIS provides on its website as a public tool for identifying normal processing periods for green card cases and other form types. If the agency wants to better manage expectations, it should provide more transparent and accurate data on current processing rather than water down its performance objectives.

The millions of backlogged individuals, families, and U.S. businesses need meaningful solutions to the agency’s crisis-level delays. Lowered standards are not among them. As a starting point, USCIS should reverse inefficient policies and practices, like the referenced in-person interview requirement, that comprise core drivers of the backlog. And Congress should swiftly pass legislation that, by strengthening USCIS transparency and accountability, helps promote timely adjudications.

Ultimately, our nation of immigrants cannot and will not accept a normalization of delays. We deserve a USCIS that rises to its processing time goals, not one that runs from them.

06/10/2019 - Premium Processing Begins for Remaining H-1B Cap-Subject Petitions on June 10

On June 10, we will begin premium processing for all remaining FY 2020 H-1B cap-subject petitions. Starting on that date, petitioners may file Form I-907, Request for Premium Processing Service, with the USCIS service center that is processing their petition. On March 19, we announced that we would offer premium processing in a two-phased approach during the FY 2020 cap season to best manage premium processing requests without fully suspending it. In the past few years, we suspended all premium processing for H-1B petitions due to high demand. Based on feedback from the public, we are using this phased approach to benefit petitioners and ensure efficient premium processing. The first phase, which started on May 20, included FY 2020 cap-subject H-1B petitions requesting a change of status and the second phase includes all other FY 2020 cap-subject petitions.

At this time, premium processing for H-1B petitions that are exempt from the cap, such as extension of stay requests, remains available.