Iandoli Desai & Cronin PC News
IDC attorneys are continuing to present post-graduation employment options at area colleges and universities. If your institution is interested in a presentation, please contact Iandoli Desai & Cronin at info@iandoli.com.
I-9 Updates
USCIS announced the release of its revised Form I-9 (Employment Eligibility Verification) with a version date of ‘‘(Rev. 10/21/2019)’’ is available for use starting January 30, 2020 to replace the form currently in use. Employers may continue using the prior version of the form, with a version date of “(Rev. 07/17/2017 N),” until April 30, 2020. After this date, the prior version of the form will no longer be valid for use.
Employees who have already completed the Form I-9 on the previous version of the Form I-9, including employees who have accepted their offer of employment, but have not yet begun working, do not need to complete a new Form I-9 using the newly released version.
Employers can download the newest version of the Form I-9 at www.uscis.gov/I-9.
SEVP Broadcast message concerning Novel Coronavirus
On January 29, 2020, the Student and Exchange Visitor Program (SEVP) broadcast a message concerning Novel Coronavirus and how the nationwide response to the 2019 novel coronavirus (2019-nCoV) will impact F and M students and their accompanying dependents.
SEVP highlighted that the Center for Disease Control (CDC) is the primary resource for up-to-date information on all diseases and biological threats. CDC information about this virus is available at About 2019 Novel Coronavirus (2019-nCoV).
Additionally, many state and local government public health agencies are developing directions, and state educational systems are incorporating this information into their messaging for schools. Identify and refer to these resources in the management and enrollment of students traveling from 2019-nCoV impacted places. Additionally, advise students traveling from 2019-nCoV impacted places to refer to guidance from the CDC and U.S. Customs and Border Protection about specific port of entry screening processes.
If your school has international students who are currently outside of the United States in impacted places or who are exhibiting symptoms of 2019-nCoV:
1. Initial students:
a. Delay their program start date and issue a new initial Form I-20, “Certificate of Eligibility for Nonimmigrant Student Status.”
2. Active students:
a. You may authorize a medical reduced course load. The student will need to provide medical documentation from a doctor. The DSO would then register the student in the Student and Exchange Visitor Information System (SEVIS) for a medically reduced course load with no course load.
b. You may terminate their SEVIS records for authorized early withdrawal upon the student’s request.
3. Students on temporary absence:
a. You may advise them not to travel to the United States until they can re-enroll in a full course of study.
b. If the delay in a student’s return from a temporary absence exceeds the five-month limit, you should provide details to the SEVP Response Center at SEVP@ice.dhs.gov. SEVP will resolve these on a case-by-case basis.
If your school has students currently inside the United States who are exhibiting symptoms of 2019-nCoV:
1. If it is not possible for the student to enroll for this term, please follow step 2a above to authorize a medically reduced course load.
2. Please have the student follow the directions from the CDC: What to do if you are sick with 2019 Novel Coronavirus (2019-nCoV).
Check-in with Department of State’s Charlie Oppenheim regarding the February 2020 Visa Bulletin
EB-1:
In February, the final action date for EB-1 Worldwide advances two months to December 1, 2018. Based on currently available information, it remains possible--yet too early to confirm--that this category could become current in the summer of 2020. The final action dates for EB-1
China and EB-1 India continue to hold at May 22, 2017, and January 1, 2015, respectively in February.
EB-2:
EB-2 Worldwide is current for February 2020. Charlie notes that demand for EB-2 Worldwide numbers continues to trend in such a way that a final action date may be imposed at some point during the second half of FY2020.
EB-2 China advances two weeks in February to July 15, 2015, and EB-2 India advances one day to May 19, 2009.
EB-3:
Charlie notes that EB-3 Worldwide and EB-3 Other Workers Worldwide will become subject to a final action date in March 2020. Charlie will determine what that date will be upon receipt of data from USCIS in February 2020.
EB-3 China advances one month to January 1, 2016, in February 2020, slightly widening the final action date spread between EB-3 China's and EB-2 China's final action dates, placing EB-3 China 5.5 months ahead of EB-2 China. Evidence of significant downgrades from EB-2 to EB-3 have not yet materialized, but Charlie continues to watch these categories closely.
EB-3 India advances one week to January 8, 2009, in February 2020, narrowing the gap with EB-2 India, final action date of May 19, 2009, to about four months.
February 2020 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.
For February 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 for all categories except for applicants in the Employment 3rd and Other Worker categories from all chargeability areas other than China, India, and the Philippines may file for adjustment of status using the Final Action Dates chart for February 2020. In February, 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 Registration is Nearing
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 experience). Approved H-1B employees can work for the sponsoring employer for 3 years in the first instance.
USCIS has just 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.
E-Visa Eligibility Update for Iranians
On January 22, 2020, USCIS announced that due to the termination of the 1955 Treaty of Amity, Economic Relations, and Consular Rights with Iran, Iranian nationals are no longer eligible for E-1 and E-2 visas or extensions of status.
The E-1 and E-2 nonimmigrant visa classifications allow a national of a treaty country to be admitted to the United States for the purposes of engaging in international trade or investing a substantial amount of capital into a U.S. business. E-1 and E-2 nonimmigrant visas are based on trade and investment treaties or specific legislation providing for reciprocal treatment of the respective countries’ nationals. The existence of a qualifying treaty or authorizing legislation is therefore a threshold requirement for issuing an E visa.
Due to the termination of the treaty, USCIS will send Notices of Intent to Deny (NOID) to affected applicants who filed applications after the Department of State’s Oct. 3, 2018, announcement.
Iranians currently holding and properly maintaining E-1 or E-2 status may remain in the U.S. until their current status expires, but should plan accordingly thereafter.
B-visa (Tourist) Updates to Combat “Birth Tourism”
On January 23, 2020, the Department of State (DOS) posted for public inspection a final rule in the Federal Register amending its current regulation concerning the issuance of B nonimmigrant visas for individuals on a visit for “pleasure.” The rule became effective as of January 24, 2020. According to DOS, this rule is exempt from notice or comment based on the foreign affairs exemption of the Administrative Procedure Act (APA) and is necessary to address national security and law enforcement concerns related to the “birth tourism industry.”
The new guidelines will not prohibit pregnant women from obtaining visas, but will extend discretion to consular officers, who will have to determine whether a woman is planning a visit to the United States solely for the purpose of giving birth. It is unclear how they would make that determination or whether they will try to verify pregnancies.
Summary of Rule
The rule amends 22 CFR 41.31 to include three paragraphs.
The first paragraph, amends the Department of State’s regulations on B nonimmigrant visas to clarify that tourism for the purpose of obtaining U.S. citizenship for a child by giving birth in the United States, or “birth tourism,” is not a permissible activity for a temporary visitor visa, or B visa.
The second paragraph codifies current standards for obtaining a B nonimmigrant visa for the primary purpose of obtaining medical treatment, requiring such individuals to provide documentation showing that a physician and/or hospital has agreed to provide the treatment and that the applicant has the means to provide payment for all expenses, including incidentals, either independently or with prearranged assistance of others.
Lastly, in 22 CFR 41.31(iii), the Department creates a rebuttable presumption “that any 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 a child.” This assumption is considered fact until disproved. In order to rebut this assumption, the applicant must establish that her primary purpose for entering the United States is not to give birth to a U.S. citizen child. The Department does acknowledge that medical treatment for a complicated pregnancy, when demonstrated, may be sufficient to overcome this assumption, though it is not a guarantee.
USCIS Filing Fee Increases
In November 2019, Department of Homeland Security (DHS) proposed a rule which would make changes to the USCIS fee schedule. DHS proposes to adjust USCIS fees, add new fees, and make other changes, including form changes and the introduction of several new forms. On January 24, 2020, the comment period on Proposed Rule on USCIS Fee Schedule Changes was reopened. Comments must be submitted by February 10, 2020.
The following are related considerations concerning the proposed fee changes:
The proposed rule is bad for business. Among other harmful changes, the rule relaxes the premium processing deadline from 15 calendar days to 15 business days, which will result in slower adjudications at higher prices—and as a consequence, slower hiring for American businesses facing critical workforce gaps and an inefficient agency lessening its own accountability standards.
The proposed rule would force USCIS customers to pay more for less. USCIS is proposing an approximately 18% overall fee hike without offering evidence that this increase will reverse the ongoing deterioration of the agency’s immigration benefit services. In fact, in key respects the rule would further weaken USCIS’s case processing standards. If implemented, families, protection seekers, and American businesses throughout the country would face the dual burden of increased fees and decreased services.
The proposed fee hikes, coupled with the elimination of vital fee waivers, would price many individuals and families out of our legal immigration system. If the rule is implemented, application fees for green cards, along with associated work and travel authorization, would likely surge by at least 75%, and for citizenship by at least 80%. The rule would also eliminate fee waivers for those form types as well as for numerous others. Moreover, the rule would significantly raise fees for DACA renewal requests. Taken together, these changes constitute yet another brick in the Trump Administration’s “invisible wall” restricting legal immigration.
USCIS should rescind its inefficient policies rather than ratchet up fees to subsidize them. In recent years, USCIS’s own inefficient policies have comprised core drivers of its crisis-level case processing delays. Now the agency is proposing higher fees to fund their continued implementation—in effect, foisting onto the public the costs of its own inefficiency. To fix the backlog, the agency should start by ending bad policies—not by raising fees to underwrite them.
The rule’s proposed transfer of over $100 million in USCIS applicant fees to ICE defies the agency’s service-oriented statutory mandate. Congress created USCIS to function as a service-oriented immigration benefits agency, distinct from the immigration enforcement missions of ICE and CBP. Yet the proposed transfer to ICE for immigration enforcement purposes makes clear that USCIS is prioritizing ICE’s work over its own.
Though the rule seeks to justify its fee increases in large part by citing a need for more staffing, over the past year the agency diverted hundreds of its employees to perform enforcement work for ICE and CBP. In recent years, the rate of new applications and petitions filed with USCIS has declined appreciably. Yet the rule asserts that the agency needs far more resources to properly process its workload. The rule fails to explain why, if that is the case, USCIS sent hundreds of its employees to perform enforcement work for ICE and CBP in FY2019.
Public Charge Rule Implementation
On January 27, 2020, in a 5-4 decision, the U.S. Supreme Court granted the administration’s request for a stay of the nationwide injunction against Department of Homeland Security’s (DHS) public charge rule, allowing DHS to implement the public charge rule nationwide, except for Illinois, which a statewide injunction against the rule remains in effect.
USCIS announced that it will begin implementing the Inadmissibility on Public Charge Grounds final rule (“Final Rule”) on February 24, 2020. USCIS has clarified that it will not consider an individual’s application for, certification or approval to receive, or receipt of certain non-cash public benefits before February 24, 2020 (instead of the original October 15, 2019), when deciding whether the foreign national is likely at any time to become a public charge under the Final Rule.
The term “likely at any time to become a public charge,” which is a ground of inadmissibility found in INA § 212(a)(4), has been redefined in four important ways:
In determining public charge inadmissibility, the regulation shifts attention away from the petitioner/sponsor’s income as reported on the affidavit of support and re-directs it to the applicant’s age, health, family status, assets/resources/financial status, and education/skills. It defines these terms in ways that may make it very difficult for low-income, low-skilled, under-educated, elderly, or disabled applicants to overcome a public charge finding.
Instead of being applied to those who might become “primarily dependent” on a designated list of state and federal programs, it is to be applied to those who are more likely than not to receive any of nine benefits for more than 12 months in the aggregate within any 36-month period.
DHS has expanded the list of designated programs that can be considered when applying the public charge “totality of the circumstances” test. Prior to the regulation becoming final, the agency could only consider receipt of three cash assistance programs— Supplemental Security Income (SSI), Temporary Assistance to Needy Families (TANF), and state general relief or general assistance—as well as a Medicaid program that covers institutionalization for long-term care. The final regulation adds five new programs. It is important to note however, that only benefits received by the applicant are considered.
The regulation allows for the posting of a public charge bond for applicants who, in the opinion of the USCIS or State Department, might otherwise fail the public charge test.
Many immigrants don’t have to worry about “public charge”, for example:
• Lawful Permanent Residents (green card holders) applying for US citizenship
• Lawful Permanent Residents (green card holders) applying to renew their expired cards
• Refugees and asylees, including people applying for asylum
• People applying for or re-registering for Temporary Protected Status (TPS)
• Violence Against Women Act (VAWA) self-petitioners
• Victims of crime or trafficking who hold a U or T visa
• People with Special Immigrant Juvenile Status, including people applying for this status
Under the final rule, DHS will also conduct a more limited public charge determination of nonimmigrants 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 (listed below) for more than 12 months in the aggregate within a 36-month period since obtaining the nonimmigrant status they seek to change from or extend, through the adjudication of that request.
The public benefits listed at 8 CFR 212.21(b) and 22 CFR 40.41(c), receipt of which on or after February 24, 2020 will be counted towards this threshold, include the following: (Benefits other than these are not defined as public benefits for purposes of these rules.)
Any Federal, State, local, or tribal cash assistance for income maintenance (other than tax credits), including:
(i) Supplemental Security Income (SSI);
(ii) Temporary Assistance for Needy Families (TANF); or
(iii) Federal, State or local cash benefit programs for income maintenance (often called "General Assistance" in the State context, but which also exist under other names);
Supplemental Nutrition Assistance Program (SNAP) (commonly known as "food stamps");
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 under 42 U.S.C. 1396 et seq., except for:
(i) Benefits received for an emergency medical condition as described in 42 U.S.C. 1396b(v)(2)-(3), 42 CFR 440.255(c);
(ii) Services or benefits funded by Medicaid but provided under the Individuals with Disabilities Education Act (IDEA);
(iii) School-based services or benefits provided to individuals who are at or below the oldest age eligible for secondary education as determined under State or local law;
(iv) Benefits received by an alien under 21 years of age, or a woman during pregnancy (and during the 60-day period beginning on the last day of the pregnancy).
Public Housing under section 9 of the U.S. Housing Act of 1937.
USCIS will post updated versions of Forms I-129, I-485 I-539, I-864, and I-864EZ and corresponding instructions, as well as Policy Manual guidance on www.uscis.gov during the week of February 3. These updated forms must be used beginning February 24, 2020, otherwise applications and petitions using incorrect editions of the forms will be rejected.
If you have received public benefits in the past or could require public assistance, we recommend that you contact Iandoli Desai & Cronin to schedule a consultation.