Iandoli Desai & Cronin PC News
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It is International Education Week, November 18-22, 2019 and IDC attorneys are speaking at several colleges and universities across Massachusetts during that week.
If your institution is interested in a presentation, please contact Iandoli Desai & Cronin at info@iandoli.com.
Attorney Mary Walsh, as Co-Chair of the Boston Bar Association's Immigration Section, is hosting an important event about asylum seekers this Friday, November 8th from 12:30-1:30pm at 16 Beacon Street, Boston, MA. Hear from Eunice Rendón, an expert on immigration, violence prevention, public health, and civil safety, who will cover the current challenges and possible options of relief for asylum seekers in transit and remaining in Mexico. She will also discuss the impact of the Department of Homeland Security's "Remain in Mexico" policy. Since the policy took effect, more than 42,000 asylum seekers have been sent back to Mexico to wait until their court cases in the U.S. are heard. All the while, the number of people requesting asylum in Mexico has increased by about 53 percent amid the Administration's effort to push Mexico, Guatemala, El Salvador, and Honduras to accept more migrants, most of whom come from Central American countries.
Speaker Bio: Eunice Rendón is the Executive Director of Agenda Migrante and a researcher in the National System of Researchers of CONACYT (Mexico’s National Council of Science and Technology). Previously, Ms. Rendón served as the Deputy Executive Secretary of Mexico's Executive Secretariate of the National Public Security System, consultant in different international organizations belonging to the United Nations System, and fellow at the National Health Institute in the United States.
For more information or to register for the event, please go to the BBA's website.
TPS extended for Six (6) Countries
The Department of Homeland Security (DHS) announced on November 1, 2019 that the validity of TPS-related documentation for beneficiaries under the Temporary Protected Status (TPS) designations for El Salvador, Haiti, Honduras, Nepal, Nicaragua and Sudan will be extended through January 4, 2021.
The notice automatically extends the validity of Employment Authorization Documents; Forms I-797, Notice of Action; and Forms I-94, Arrival/Departure Record (collectively, TPS-related documentation). The validity dates for the affected countries are:
TPS Designation(s) Current Expiration Date New Expiration Date
El Salvador, Haiti, Nicaragua, and Sudan Jan. 2, 2020 Jan. 4, 2021
Honduras Jan. 5, 2020 Jan. 4, 2021
Nepal Mar. 24, 2020 Jan. 4, 2021
DHS is extending the TPS documentation in compliance with the preliminary injunctions of the Courts. Should the government prevail in its challenge to the Ramos preliminary injunction, the secretary’s determination to terminate TPS for Nicaragua and Sudan will take effect no earlier than 120 days from the issuance of any appellate mandate to the district court. The secretary’s determination to terminate TPS for El Salvador will take effect no earlier than 365 days from the issuance of any appellate mandate to the Ramos district court to allow for an orderly transition for affected TPS beneficiaries.
American Council on Education (ACE) and 43 other higher education associations file amicus brief with the US Supreme Court; November 12, 2019 hearing date with a ruling expected in Spring 2020
An Amicus Brief was filed by the American Council on Education and 43 Other Higher Education Associations in Department of Homeland Security, et al. v. Regents of the University of California, et al. (October 4, 2019)to the Supreme Court of the United States in support of district court decisions that have kept in place the Deferred Action for Childhood Arrivals (DACA) policy, which the Trump Administration rescinded in 2017.
The government claims that its rescission of the policy is not reviewable. Amici argue that the recession of DACA is subject to judicial review and that rescinding DACA will considerably harm colleges and universities and their students by making it far more difficult for promising students to enroll in postsecondary institutions.
Iandoli Desai and Cronin, P.C. will continue to monitor the ongoing litigation and will provide updates as they become available.
U.S. Admissions Directors Increasingly Concerned About International Enrollment as International interest in U.S. business schools down and Chinese student enrollment in decline
According to Inside Higher Ed's 2019 Survey of College and Admissions Officers, 86 percent of admissions directors at public and private U.S. colleges are concerned about their institution's ability to meet 2019–20 enrollment goals and 58 percent are concerned about maintaining international student enrollment numbers. Following the trend from the 2018 survey results, 76 percent of respondents said that "the policies and rhetoric of the Trump administration have made it more difficult to recruit international students." Read more in the ICEF Monitor.
Furthermore, in a recent survey of college counselors in China, 87 percent of counselors reported that Chinese students and their families are now reconsidering plans for studying in the United States. Eighty-five percent of counselors said that the top concern for parents is the unpredictable Chinese student immigration policies of the Trump administration. Survey respondents also pointed to concerns about student safety in the United States and uncertainty about post-graduation employment opportunities. Read more in Inside Higher Ed.
Proposal to Replace Duration of Status (D/S) for F-1, J-1 and other nonimmigrants with Maximum period of stay dates
US Immigration and Customs Enforcement (ICE) announced that they intend to propose a rule to limit the amount of time international students can stay in the country by eliminating the "duration of status" or "D/S" policy. If the admission stamp or Form I-94 contains a specific date, then that is the date by which individual must leave the United States. If the individual has D/S on the admissions stamp or Form I-94, the individual may remain in the United States as long as they continue your course of studies, remain in their exchange program, or qualifying employment.
Under the proposed change, ICE would modify the period of authorized stay to a maximum period of stay, with options for extension, for each applicable visa category. This policy is part of the spring 2019 Regulatory Agenda of Department of Homeland Security. However, the policy is still at the “Proposed Rule Stage” and has not been approved for implementation. The agency’s target date for the change is February 2020.
This would be a significant change in how F-1, J-1 and M-1 nonimmigrants are admitted into the US.
Urge your members of Congress to speak out and publicly defend international students and scholars.
Department of Labor Releases Information related to USCIS adjudicating H-1Bs
As H-1B employers and H-1B beneficiaries have long known, US Citizenship and Immigration Service (USCIS) has relied heavily, and erroneously, in asserting H-1B eligibility based on a sister agency’s data, specifically, the Bureau of Labor Statistics (BLS) Occupational Outlook Handbook (OOH).The OOH itself notes, “the OOH provides a general, composite description of jobs and cannot be expected to reflect work situations in specific establishments or localities. The OOH, therefore, is not intended to, and should never, be used for any legal purpose.”
Pursuant to a recent Freedom of Information Act (FOIA) request, Department of Labor (DOL) released information related to communications within the BLS concerning USCIS’s use of the OOH in adjudicating H-1B petitions. The FOIA request highlights from BLS, “We have known for several years that the US. Customs and Immigration Service (USCIS) occasionally uses education and training information in the OOH to establish strict education requirements for H-1B eligibility. This is an incorrect use of OOH information and we discourage this practice.”
Check-in with Department of State’s Charlie Oppenheim regarding the November 2019 Visa Bulletin
EB-1:
For November, the EB-1 Final Action Dates advanced according to Charlie’s previous prediction with EB-1 Worldwide advancing approximately 5 weeks from April 22, 2018 to June 1, 2018; EB-1 China advancing a full three months from November 1, 2016 to February 1, 2017; and EB-1 India holding at January 1, 2015.
Charlie noted that for November, EB-1 China advanced the anticipated three full months due to lower than expected demand, but cautioned that the rate of advancement could slow down. Members should not expect EB-1 India to advance for some time since there is already significant number use and pending demand in that category. Charlie noted that he has already given out 17% of the targeted EB-1 India numbers set aside for Q1 of the fiscal year. Since EB-1 China and EB-1 India will be subject to their per country limits in the foreseeable future, the only possibility of more rapid movement in these categories is if demand for visas in EB-1 Worldwide were to fall below that allowed under the overall annual limit.
The latest report Charlie received from USCIS shows significantly lower demand in EB-1 Worldwide compared to the last few years. He notes that the potential demand reported for EB-2 Worldwide and EB-3 Worldwide combined dwarfs the reported demand for EB-1 Worldwide.
If this low demand trend continues, EB-1 Worldwide could potentially return to current at some point this fiscal year. Practitioners should not expect to see this happen prior to April at the earliest, and should be cautioned that a significant increase in demand in this category could prevent this possibility. If EB-1 Worldwide does return to current again, EB-1 India, and possibly China, would benefit from the "otherwise unused numbers" which would allow the Final Action Date to advance at a faster pace for those two countries.
In the past, Charlie was able to wait until closer to the end of the fiscal year to redistribute the otherwise unused worldwide numbers in the EB-3 and EB-1 categories, allowing the India and China categories to advance. More recently, the high demand in EB-3 and EB-1 Worldwide prevented these categories for China and India from advancing as they had in the past. This has resulted in significant amounts of pending demand awaiting forward movement of the Final Action Dates, particularly for India.
Charlie reports that there are 17,000 pre-adjudicated EB-1 India requests pending at USCIS or overseas posts. No forward movement is expected in EB-1 India through January. However, when the date does begin to move, there is a potential for EB-1 India to leap forward by up to 6-8 months because of low concentration of demand in the weekly groupings.
EB-2:
EB-2 Worldwide remains current for November and is expected to remain current for the foreseeable future.
In November, EB-2 India advances only one day from May 12, 2009 to May 13, 2009, which is consistent with Charlie’s earlier prediction that it will advance at a pace of "(u)p to one week." Charlie is starting to see an increase in upgrades from EB-3 India to EB-2 India, with the numbers requested so far in October most likely being attributable to upgrade requests.
EB-2 China advances two months in November from January 1, 2015 to March 1, 2015. Given that the Final Action Date for EB-3 China (November 1, 2015) is eight months ahead of EB-2 China, it is likely to prompt downgrades which could take the pressure off of EB-2 China demand, causing that category to advance.
EB-3:
The EB-3 category bears watching as we continue to move into Q2 of the fiscal year and beyond, and especially EB-3 Other Workers. Charlie is very surprised at the high level of numbers used in this category this fiscal year as well as pending demand for this category, noting that it is significantly higher than it has been in the past to the tune of thousands. Nevertheless, Charlie still expects EB-3 Worldwide to remain current through at least January.
EB-3 China is receiving a high level of downgrade requests, with 300 requests in October alone, causing its Final Action Date to hold at November 1, 2015 for November. As noted above, if this trend continues it will limit the advancement of EB-3 China while potentially increasing the rate of advancement for EB-2 China.
Members should expect little to no movement for EB-3 India.
November Visa Bulletin
Each month, the U.S. Department of State publishes the Visa Bulletin, listing all "preference" categories and states whether or not a backlog exists for each one.
For November 2019 USCIS has again indicated that the “Dates for Filing Applications,” chart should be used in establishing eligibility to file the I-485 Adjustment of Status petitions. Since last month’s retrogression of all preference categories, there has been significant advancement in many, but not all, preference categories. This means that those who filed the Form I-140 on or before the date given in the Visa Bulletin are able to file for or be granted permanent resident status.
While the EB-1 preference category for all countries remains backlogged, the November movement for all countries other than China and India remains at July 1, 2019, meaning that those applicants whose I-140 was filed on or before that date are able to file Form I-485 to become permanent residents, or if their I-485 applications are already pending, to be approved. China and India remain backlogged to September 1, 2017 and March 15, 2017, respectively.
The EB-2 preference category remains “current” for all countries other than China and India which means that individuals in these categories may immediately file I-485 applications. China and India remain backlogged to August 1, 2016 and July 1, 2009, respectively.
Because of the difference in dates on the two charts, I-485 applications filed now may be pending for lengthy periods of time; however, the opportunity to file the I-485 applications is available now.
If you have questions about planning, please feel free to reach out and schedule a consultation with one of the attorneys (info@iandoli.com).
Presidential Proclamation Suspending the Entry of Legal Immigrants Not Covered by Approved Health Insurance and Subsequent Court Challenge
On October 4, 2019, President Trump issued a proclamation suspending the entry of immigrants who “will financially burden the U.S. healthcare system,” effective at 12:01 am (ET) on November 3, 2019. With some exceptions, the proclamation held that immigrants must establish to the satisfaction of a consular officer that they will be covered by approved health insurance within 30 days of entry into the United States or that they possess the financial resources to pay for reasonably foreseeable medical costs. This measure prevents legal immigrants from receiving immigrant visas if they lack the immediate financial ability to purchase health insurance outside of the Affordable Care Act (ACA) exchanges. Inability to meet this requirement will result in the denial of an otherwise approvable visa application.
Prospective immigrants had been scrambling to figure out how to get the necessary coverage, navigating a complex healthcare bureaucracy that has, for the most part, not previously catered to those who are not yet in the country.
However, on Wednesday, October 30, 2019, a class-action suit was filed in Portland, Oregon, to bar President Trump from restricting visas for immigrants without health insurance. It applies to people seeking immigrant visas from abroad, not those already in the country, and doesn’t affect asylum seekers, refugees or children. On November 2, 2019, the Court issued a Temporary Restraining Order (TRO), which prevents the administration from implementing the proclamation for the next 28 days.
Iandoli Desai and Cronin, P.C. will continue to monitor the ongoing litigation regarding the health insurance proclamation and will provide updates as they become available.
Lawsuits Halt USCIS Public Charge Rule and Department of State Public Charge Rule will not be implemented in 2019 until new form and rules published
On October 11, 2019, Judges before the U.S. District Courts for the Southern District of New York (PDF, 68 KB), Northern District of California (PDF, 888 KB), Eastern District of Washington (PDF, 631 KB), Northern District of Illinois (PDF, 137 KB), and District of Maryland (PDF, 498 KB) have ordered that US Citizenship and Immigration Services (USCIS) cannot implement and enforce the final rule on the public charge ground of inadmissibility under section 212(a)(4) of the Immigration and Nationality Act. The court orders also postpone the effective date of the final rule until there is final resolution in the cases. Most of the injunctions are nationwide, and prevent USCIS from implementing the rule anywhere in the United States.
Also on October 11, 2019, Department of State (DOS) published an interim final rule that amends 22 CFR 40.41, Ineligibility Based on Public Charge Grounds, to add certain definitions, including definitions of public charge, public benefit, alien's household, and receipt of public benefit. On October 15, 2019, DOS announced that "Visa applicants are not requested to take any additional steps at this time and should attend their visa interviews as scheduled. The Department is seeking approval for use of a new form before it implements any changes to our processes. We will inform applicants of any changes to current visa application procedures." On October 24, DOS published in the Federal Register the DS-5540, Public Charge Questionnaire for public comment. The comment period will be open until December 23, 2019, and comments may be submitted via regulations.gov or via email at PRA_BurdenComments@state.gov.
As a reminder, the interim final rule will not be implemented until the form and DOS revisions have been finalized. Given the public comment period for the form, the DOS rule will not be implemented in 2019.