U.S. Travel Bans Impact China & Six Other Countries
On January 31, the Trump administration announced the following sweeping new travel restrictions:
Responding to the Coronavirus Situation, United States Restricts Travel From China
U.S. Health and Human Services Secretary Azar announced a ban on foreign nationals traveling from China and quarantines for U.S. citizens coming from China. The restrictions went into effect at 5:00 p.m. (EST) on Sunday, February 2.
"Foreign nationals, other than immediate family of U.S. citizens and permanent residents, who have traveled in China within the last 14 days will be denied entry into the United States for this time," per a presidential proclamation under INA 212(f), signed by President Trump on January 31.
Any U.S. citizen returning to the United States who has been in Hubei province in the 14 days prior to their entry to the United States will be subject to up to 14 days of mandatory quarantine to ensure they have been provided proper medical care and health screening
Any U.S. citizen returning to the United States who has been anywhere else in mainland China in the 14 days prior to their entry to the United States will undergo "proactive entry health screening at a select number of ports of entry," and up to 14 days of "monitored self-quarantine" to ensure they have not contracted the virus and do not pose a public health risk.
Furthermore, on January 30, the World Health Organization declared that the spread of the virus is a Public Health Emergency of International Concern while, the U.S. State Department issued a Level 4 “do not travel” advisory for China.
Please note, the US Embassy Consulates in China are temporarily closed February 3-7 in accordance with Chinese government guidance. As such, when they re-open, they will likely be backlogged so visa processing could see substantial delays.
Trump Administration Announces Expansion of Travel Ban
In a January 31, 2020, Presidential Proclamation, the Trump administration expanded its travel ban to place visa and entry restrictions on travelers from six additional countries, including Eritrea, Kyrgyzstan, Myanmar, Nigeria, Sudan, and Tanzania.
The expanded ban will become effective at 12:01 a.m. (EST) on February 21, 2020. The ban contains restrictions on certain (not all) immigrant visa petitions being processed abroad at U.S. Embassies but does not impact nonimmigrants. Therefore, it will not impact applications for Adjustment of Status to Permanent Resident from within the U.S., acquisition of nonimmigrant visas like B-1/B-2 tourist, F-1 student, J-1 exchange visitor, H-1B worker, etc., or of admission to the United States in those categories. However, visitors in these may still be subject to extra scrutiny, as we have seen in the case of Iranian citizens most recently.
Expected USCIS Filing Fee Increases
As highlighted in last month’s newsletter, Department of Homeland Security (DHS) proposed a rule which would make changes to the USCIS fee schedule. DHS proposes to adjust USCIS fees by a weighted average increase of 21%, add new fees, and make other changes. The proposed changes include new and/or increased fees for adjustment of status, asylum, DACA renewals and naturalization. The proposed rule also seeks to eliminate critical fee waivers that allow vulnerable immigrants to maintain their status and progress in their immigration journey.
The following is a sample of proposed fee increases and changes to the Green Card and Naturalization process:
Adjustment of Status to Lawful Permanent Residency- Currently, an adjustment of status application costs $1,225 for most applicants. The current fee includes the cost of concurrently filed applications for work and travel authorization. USCIS is proposing to separate the filing fees for these applications and increase the total price of that package to $2,195.
Deferred Action for Childhood Arrivals, or DACA - USCIS is proposing to include a new fee for DACA renewals of $275. Currently, renewing DACA requesters pay $410 for employment authorization and $85 for biometrics. However, USCIS is proposing to raise the employment authorization fee to $490 and to roll the biometrics fee into the proposed $275 I-821D fee. Thus, the cost of a DACA renewal will increase from $495 to $765, an overall increase of 55%.
Fee Waivers - USCIS is proposing to slash existing fee waivers except for those enumerated by statute (i.e., VAWA self-petitioners, battered spouses of certain nonimmigrants, U visas, T visas and TPS). Among the fee waivers largely eliminated are those for applications for naturalization, adjustment of status, green card replacement and renewals (Form I-90) and employment authorization.
Naturalization - USCIS is proposing to increase the naturalization applications (Form N-400) fee 83%, raising the fee from $640 to $1,170. Additionally, USCIS is proposing to eliminate the Form N-400 Reduced Fee as well as fee waivers for the N-400. This will increase the burden on low-income immigrants seeking to naturalize, delaying their access to citizenship.
Please contact Iandoli Desai & Cronin PC if you have questions applying for benefits that you may be eligible for now in preparation of the proposed fee increases taking effect.
USCIS Begins Accepting Green Card Applications under Liberian Refugee Immigration Fairness (LRIF)
U.S. Citizenship and Immigration Services (USCIS) announced that it will begin accepting applications to adjust status to lawful permanent resident from certain Liberian nationals under Section 7611 of the National Defense Authorization Act for Fiscal Year 2020, Liberian Refugee Immigration Fairness (LRIF), signed into law on December 20, 2019.
To be eligible for permanent residence (a Green Card) under LRIF, a Liberian national must have been continuously physically present in the United States from November 20, 2014, to the date they properly file an application for adjustment of status. USCIS will accept properly filed applications until December 20, 2020, one year from the enactment of the LRIF.
Applicants must be otherwise eligible to receive an immigrant visa and be admissible to the United States. The spouses, unmarried children under 21, and unmarried sons and daughters 21 or older of eligible Liberian nationals are also eligible for Green Cards.
The following grounds of inadmissibility do not apply to applicants under the LRIF:
Public Charge (INA 212(a)(4));
Labor Certification Requirements (INA 212(a)(5));
Aliens Present Without Admission or Parole (INA 212(a)(6)(A)); and
Documentation Requirements (INA 212(a)(7)(A)).
Aliens are ineligible under LRIF if they have:
Been convicted of any aggravated felony;
Been convicted of two or more crimes involving moral turpitude (other than a purely political offense); or
Ordered, incited, assisted or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group or political opinion.
For more information about filing for adjustment of status under the LRIF, contact the attorneys at Iandoli Desai & Cronin PC.
USCIS Expands Guidance on “Unlawful Acts” Bar to Establishing Good Moral Character for Naturalization
In December 2019, USCIS issued a policy alert expanding its policy guidance regarding unlawful acts that reflect adversely on moral character and may prevent an applicant from meeting the good moral character (GMC) requirement for naturalization. Policy highlights include:
Expands existing guidance on the “unlawful acts” bar to establishing GMC for naturalization, including adding additional examples of unlawful acts.
Emphasizes that USCIS officers determine whether an “unlawful act” is a conditional bar on a case-by-case basis and provides guidance on that case-by-case analysis.
The policy became effective December 13, 2019.
Economic Value Statistics of International Students and Scholars
NAFSA: Association of International Educators is the world's largest nonprofit association dedicated to international education and exchange. NAFSA provides annual statistics including economic value of international students and visitors. NAFSA's latest analysis finds that international students studying at U.S. colleges and universities contributed $41 billion and supported 458,290 jobs to the U.S. economy during the 2018-2019 academic year. NAFSA reports that for every seven international students, three US jobs are created and supported by spending occurring in the higher education, accommodation, dining, retail, transportation, telecommunications and health insurance sectors.
NAFSA conducts an annual state-by-state and congressional district analysis of the economic contributions of international students and their families to the U.S. economy. Massachusetts specific data shows that the 71,098 international students have contributed $3.2 Billion and 38,799 jobs during the 2018-2019 academic year. The economic contributions of international students are in addition to the immeasurable academic and cultural value these students bring to our campuses and local communities.
U.S. Department of Education Information Collection Request based upon Section 117 of the Higher Education Act Foreign Gift and Contract Reporting
Over the last year, motivated largely by concerns about China’s perceived growing influence, federal policy makers and national security and science agencies have been looking into ways to protect sensitive research and academic freedom at American colleges and universities. As a result, the Department of Education and other policy makers have started to focus on the Sec. 117 foreign gift reporting requirements.
In December, the Department of Education Notice asked the Office of Management and Budget (OMB) to conduct an emergency review of the Department's Information Collection Request on Foreign Gifts and Contracts under Section 117 of the Higher Education Act. This notice asks OMB to conduct an emergency review of the Department's Information Collection Request on Foreign Gifts and Contracts, which requires each institution of higher education to report gifts and contracts with foreign sources that exceed a value of $250,000 (Docket No. ED-2019-ICCD-0154).
In November of this year, the American Council on Education submitted a letter to the Department expressing concerns about the breadth of the request and rather than simplify the process will complicate the reporting process. In essence, it would increase the scope of Section 117 beyond what the statute requires and significantly expand the type of information colleges and universities must report. Click here for details on what new information might be required.
USCIS Issues Public Guidance on Visa Retrogression and How to Follow Up on Pending Green Card Applications
In December, US Citizenship and Immigration Services (USCIS) issued public guidance on visa retrogression which can occur when an application for green card, known as Form I-485, application for adjustment of status, or immigrant visa application is adjudicated.
If, at the time of final adjudication of the green card, an applicant’s priority date no longer meets the cut-off date published in the Visa Bulletin, due to retrogression, his or her case must be held in abeyance until an immigrant visa once again becomes available. If an applicant has been interviewed at a USCIS office and an immigrant visa is not available, then USCIS may hold the case at different USCIS locations until an immigrant visa becomes available. At the conclusion of the interview, and if the officer has determined the Form I-485 is approvable other than an immigrant visa not being available, the officer will provide the green card applicant with a Notice of Interview Results informing the applicant of the reason(s) the application is being continued.
Once the visa number becomes available again, USCIS will not notify the AOS applicant of an immigrant visa becoming available and further processing of his or her case. Applicants may visit the current Visa Bulletin maintained by the Department of State (DOS), which informs the public of the current month’s visa cut-off dates and to monitor when a visa becomes available to them based on their category, country of chargeability, and priority date.
USCIS will finalize processing of the green card application or an immigrant visa-retrogressed case when visas become available to applicants based on their priority dates and the cut-off dates in the current month’s Visa Bulletin. Due to the number of immigrant visa numbers that become available on the first date of each month, and the fact that many cases may require updated evidence, it may take several months before USCIS is able to complete the adjudication of some cases.
These retrogressions may require immigrants to extend H-1B, O-1, and other nonimmigrant categories until such time that immigrant visa numbers do become available, so it is strongly advised to plan accordingly and to allow enough time so that no gap exists which could affect the ability of the applicant to work in the United States and/or travel abroad. We will be checking each month to monitor the Visa Bulletin and will provide updates.
Check-in with Department of State’s Charlie Oppenheim regarding the January 2020 Visa Bulletin
EB-1
In January, the EB-1 Worldwide Final Action Date advances 2.5 months to October 1, 2018. The EB-1 China Final Action Date advances one week to May 22, 2017, and EB-1 India’s Final Action Date continues to hold at January 1, 2015. While EB-1 China and EB-1 India demand remain high, rest of world demand has tapered off and is currently lower than Charlie’s monthly use target. If this trend continues, EB-1 Worldwide could potentially become current by the summer of 2020.
EB-1 China will continue to advance at a pace of up to three weeks, but members should not expect EB-1 India to advance in the near future. There continues to be sufficient demand in this category for applicants with priority dates that are earlier than January 1, 2015 to enable Charlie to reach his target without having to advance the Final Action Date.
EB-2 Worldwide & EB-3 Worldwide
Last month’s Check-in warned of the possibility of retrogression in the EB-2 Worldwide and EB-3 Worldwide categories as early as January 2020. We were pleasantly surprised that these categories will remain current for January. Members should continue to monitor these categories closely moving forward, as Charlie has informed AILA that Final Action Dates will be imposed in these categories—it is merely a matter of when that will occur. He notes that EB-3 Worldwide will have a Final Action Date imposed no later than March 2020, with a strong possibility of that happening in February. EB-2 Worldwide is likely to remain current longer than EB-3 Worldwide, and hopefully no cut-off date will be required until after March 2020.
The longer these categories remain Current, the more likely it is that the retrogression will be more significant so as to severely limit the number usage for a period of time.
The EB-2 China Final Action Date advances one week in January to July 1, 2015, and EB-2 India advances 3 days to May 18, 2009. Over the coming months, Charlie expects EB-2 China to advance at a pace of up to one month, with EB-2 India advancing at a rate of up to one week. Charlie notes that EB-2 China demand has picked up at a steady pace, but still remains manageable for now.
The EB-3 China Final Action Date advances one month to December 1, 2015, in January, which positions EB-3 China’s Final Action Date five months ahead of EB-2 China, maintaining a climate favorable for downgrades. Charlie predicts that the EB-3 China Final Action Date will continue to advance at a rate of up to six weeks. China EB-3 Other Worker category will continue to have an earlier Final Action Date than EB-3 China due to excessive demand in this category.
The EB-3 India Final Action Date holds at January 1, 2009, for January, keeping it almost five months behind EB-2 India, maintaining a climate favorable for upgrades. Charlie predicts advancement of “up to” three weeks for EB-3 India, but notes that we should not expect to see any movement in this category until the demand begins to drop below his monthly target number usage.
EB-3 Other Worker Worldwide is likely to have a Final Action Date imposed in the coming months.
January Visa Bulletin
Each month, the U.S. Department of State (DOS) publishes the Visa Bulletin, listing all "preference" categories and states whether or not a backlog exists for each one.
Please note that USCIS has clarified that “if a particular immigrant visa category is ‘current’ on the Final Action Dates chart or the cutoff date on the Final Action Dates chart is later than the date on the Dates for Filing chart, applicants in that immigrant visa category may file using the Final Action Dates chart during that month.”
For January 2020, USCIS has again indicated that the “Dates for Filing” chart should be used in establishing eligibility to file the I-485 Adjustment of Status petitions. In January, the EB-1 preference category on the Dates of Filing Chart for all countries other than China and India is “current.” This means the I-485 applications may be filed immediately with the Form I-140. China and India remain backlogged to October 1, 2017 and March 15, 2017, respectively.
The EB-2 preference category also 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).
H-1B Planning Season is Upon Us with a New Process and New Deadlines
H-1B sponsorship is offered by U. S. employers for Foreign Nationals working for those employers in Specialty Occupations which require at least a bachelor’s degree (or the equivalent in education and/or experience). Approved H-1B employees can work for the sponsoring employer for 3 years in the first instance.
USCIS has announced they will implement the new e-registration tool this upcoming H-1B cap season. As such, employers seeking to file H-1B cap-subject petitions for the fiscal year 2021 cap, including those eligible for the advanced degree exemption, must first electronically register. USCIS will open an initial registration period from March 1 through March 20, 2020. The H-1B random lottery process, if needed, will then be run on those electronic registrations. Only those with selected registrations will be eligible to file H-1B cap-subject petitions. Given this advanced timeline for e-registration, it is now the best time for employers to decide whether they will file H-1B petitions.
Please feel free to contact the attorneys of Iandoli, Desai & Cronin now with your questions about potential H-1B sponsorship.