Visa Lawyer Blog

Articles Posted in Adjustment of Status

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In this article, we will discuss how the upcoming Presidential election could impact immigration for years to come.

On November 3, 2020 Americans will head to the polls to cast their votes for the next President of the United States. While the upcoming presidential election seems far into the future, Americans must now begin to consider how their votes could impact the future of immigration.

During the 2016 election, the topic of immigration took center stage and has continued to remain a prominent topic of contention among Democrats in Republicans. In part immigration was catapulted to mainstream media by then Presidential nominee Donald Trump, who made the topic of immigration a central issue of his campaign, by means of his campaign logo “Make America Great Again,” to highlight the discontent that many Americans felt regarding illegal immigration, the availability of jobs in the United States, and the country’s general loss of “status” in relation to other countries. Throughout his campaign, Donald Trump consistently made pledges to his supporters with respect to immigration, including a promise to build a wall and ensuring Mexico pay for it, ending birthright citizenship, ending “mass” migration of Syrian refugees, removing undocumented immigrants from the United States, and limiting legal immigration, to name a few of his campaign promises. The President also vowed to serve the interests of America and its workers, calling them “the forgotten people.” This rhetoric proved to be successful as disenchanted Americans across the country began to rally in support of Donald Trump helping him win the Presidency.

The President’s strategy was so successful, that other Republicans have taken a page out of Donald Trump’ s playbook, using the same rhetoric to gain the support of rural Americans.

This same anti-immigrant rhetoric is expected to take center stage during the upcoming presidential election. Republicans have remained united on the issue of immigration and have consistently supported Trump’s policies even where courts have struck down the President’s orders with respect to ending DACA.

Today, Americans remain largely divided on the issue of immigration, making the outcome of the Presidential election all the more unpredictable. The President’s current impeachment proceedings have also thrown a wrench into the process, creating deep divisions among party lines.

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As we approach the end of the year, in this blog post, we look back at the major policy changes implemented by the Trump administration in the year 2019 that have had a profound impact on the way our immigration system functions today.

JANUARY 

Government Shutdown Woes

The start of 2019 began on a very somber note. From December 22, 2018 to January 25, 2019 Americans experienced the longest government shutdown in American history (lasting a period fo 35 days) largely due to political differences between the Republican and Democratic parties on the issue of government funding to build a border wall along the U.S. Mexico border.

The government shutdown created a massive backlog for non-detained persons expecting to attend hearings in immigration court. Because of limited availability of federal workers, non-detained persons experienced postponements and were required to wait an indeterminate amount of time for those hearings to be re-scheduled.

To sway public opinion, 17 days into the government shutdown, the President delivered his first primetime address from the Oval office where he called on Democrats to pass a spending bill that would provide $5.7 billion in funding for border security, including the President’s border wall.

With no agreement in sight, on January 19, 2019, the President sought to appease Democrats by offering them a compromise solution. In exchange for funding his border wall and border security, the President announced a plan that would extend temporary protected status of TPS recipients for a three-year period and provide legislative relief to DACA recipients for a three-year period. The President’s proposal however did not provide a pathway to residency for Dreamers, and was quickly rejected by Democrats.

On January 25, 2019, with still no solution and pressure mounting, the President relented and passed a temporary bill reopening the government until February 15, 2019.

Meanwhile, immigration courts across the country were forced to postpone hundreds of immigration hearings, with Minnesota, Pennsylvania, and Kentucky being the most deeply affected by the shutdown.

Changes to the H1B Visa Program

On January 30, 2019, the Department of Homeland Security announced proposed changes to the H-1B visa program including a mandatory electronic registration requirement for H1B petitioners filing cap-subject petitions beginning fiscal year 2020, and a reversal in the selection process for cap-subject petitions. The government outlined that it would first select H-1B registrations submitted on behalf of all H-1B beneficiaries (including regular cap and advanced degree exemption) and then if necessary select the remaining number of petitions from registrations filed for the advanced degree exemption. Moreover, only those registrations selected during fiscal year 2020 and on, would be eligible to file a paper H1B cap petition.

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The House of Representatives recently made a bold move that could give undocumented farmworkers a pathway to permanent residence.

Yesterday, December 11, 2019, by a vote of 260-165, the House passed the Farm Workforce Modernization Act, a progressive bill that if approved by the Senate, would create several exciting opportunities for undocumented farmworkers as well as U.S. employers.

What does the Bill propose?

The bill would allow existing agricultural workers in the United States to legalize their status through continued agricultural employment and contribution to the United States economy.

Which workers would be eligible for Permanent Resident Status?

Earned Pathway to Legalization

  • Individuals who have worked in agriculture in the U.S. for at least 10 years before enactment of the bill, must continue to work for at least 4 more years in agriculture on Certified Agricultural Worker (CAW) status before being eligible to apply for permanent residence OR
  • Individuals who have worked in agriculture in the U.S. for less than 10 years, must work at least 8 more years in agriculture on CAW status before being eligible to apply for permanent residence
    • Applicants who qualify based on one of these criteria would be required to pay a $1,000 fine

In addition, the bill would:

  • Create a new temporary worker visa program for current unauthorized farmworkers called Certified Agricultural Worker (CAW) status. CAW visas would be renewable and five-and-a-half years in length. The number of CAW visas would be uncapped.
  • Establish eligibility requirements of the CAW visa.Unauthorized immigrants who have spent at least 180 days of the last two years in agricultural employment would be eligible for the Certified Agricultural Worker Visa.
  • With few exceptions, applicants must meet existing work visa admissibility requirements to be eligible and must pass a criminal background check.
  • Felons and those who have been convicted of multiple misdemeanors (two or more offenses of moral turpitude or three offenses in general) would not be eligible.

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The U.S. Department of State recently released the December 2019 Visa Bulletin. In this post, we will discuss the current state of the visa bulletin, potential for advancement, retrogression, and predictions.

Family-based Preference Categories

The Final Action Date for F2A has been current and remains current since July 2018 across all countries through December. Low demand in this category has made it “current” and is expected to remain current for the foreseeable future.

Movement for all other family-preference categories remains as before.

F-4 visa demand is increasing which may result in slow movement in this category in the foreseeable future, but not nearly enough to cause a retrogression.

Employment-based preference categories

Overview

For the month of December 2019, EB-2 Worldwide, as well as EB-2 El Salvador, Guatemala, Honduras, Mexico, Philippines, and Vietnam remain current.

Similarly, EB-3 Worldwide, as well as EB-3 El Salvador, Guatemala, Honduras, Mexico, and Vietnam remain current.

The Visa Bulletin notes that visa availability is likely to slow down for employment-based visa categories due to the steady increase in the level of employment-based demand for adjustment of status cases filed with USCIS. If the current pace of demand continues, a final action date will be implemented for EB-2, EB-3, and EB-3 Other Worker preference categories as early as January.

Charles Oppenheim, Chief of the Visa Control and Reporting Division at the U.S. Department of State has reported that if the level of demand subsides, it is possible that these categories will remain current, however there is no evidence that demand will slow down for these categories, therefore visa applicants should be prepared for the implementation of Final Action Dates as early as January 2020.

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The President has once again targeted the immigrant population by signing a Presidential Proclamation suspending the entry of any immigrant who will “financially burden the United States healthcare system.”

While the Presidential Proclamation is likely to encounter resistance in court, as it stands the Proclamation is slated to become effective on November 3, 2019.

According to the Proclamation, a person seeking to immigrate to the United States will be found to be a financial burden on the U.S. healthcare system, unless they can prove either one of the following:

  • They are covered by approved health insurance, within 30 days of their entry to the United States, or
  • They have the financial resources to pay for reasonably foreseeable medical costs.

Beginning November 3, 2019, prior to the adjudication and issuance of an immigrant visa, a non-citizen seeking to immigrate to the United States, must establish to the satisfaction of a consular officer that they will not become a burden on the health care system by either of the means outlined above.

Who does the Proclamation apply to?

Only non-citizens seeking to enter the United States pursuant to an immigrant visa.

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On Friday October 11, 2019, three Federal courts in California, New York, and Washington issued three temporary injunctions blocking the Trump administration from enforcing the Public Charge rule on a nationwide basis, which was set to go into effect on October 15, 2019.

The decision to block the government from enforcing the Public Charge rule is sure to set off a contentious legal battle that is just beginning to unfold.

California’s Injunction

In California, the City of San Francisco, State of California, and La Clinica de La Raza, a health care provider, joined together as plaintiffs to sue the United States Citizenship and Immigration Services (USCIS), the U.S. Department of Homeland Security (DHS), and the President of the United States to prevent the Public Charge rule from going forward.

U.S. District Judge Phyllis Hamilton granted the Plaintiffs a preliminary injunction bringing a temporary stop to the government’s plans to enforce the rule, in states falling under the purview of the U.S. District Court of Appeals for the Ninth Circuit.

Judge Hamilton wrote that in seeking to enforce the final rule, the government failed to consider the impact the rule would have on local and state governments when immigrants chose to leave public health benefit program, “[DHS] made no attempt, whatsoever, to investigate the type or magnitude of harm that would flow from the reality which it admittedly recognized would result—fewer people would be vaccinated,”

Washington’s Injunction

Similarly in a separate but related lawsuit, the States of Washington, Colorado, Delaware, Hawaii, Illinois, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, and Rhode Island joined together as Plaintiffs to sue the United States Citizenship and Immigration Services (USCIS), the U.S. Department of Homeland Security (DHS), the heads of these agencies, and the President of the United States.

The Washington injunction was more sweeping in scope in that the Federal Judge in that case, Rosanna Malouf Peterson, ordered a nationwide injunction forcing the government to refrain from implementing or enforcing the rule on a temporary but nationwide basis. In her decision Judge Peterson wrote, “the Court declines to limit the injunction to apply only in those states within the U.S. Court of Appeals for the Ninth Circuit.”

As a result, the broad scope of the injunction prevents the government from enforcing the Public Charge rule on a nationwide basis.

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The Trump administration’s controversial rule making certain foreign nationals inadmissible to receive permanent residence on public charge grounds, will become effective beginning October 15, 2019.

First, and foremost let’s recap what this rule is about and who it will apply to:

Under immigration law, an individual who, in the opinion of DHS is likely at any time to become a public charge is (1) ineligible for a visa (2) ineligible for admission to the United States and (3) ineligible for adjustment of status (permanent residence).

This means that the rule applies to foreign nationals applying for a U.S. visa, foreign nationals seeking admission through a port of entry, and individuals applying for adjustment of status.

When an individual applies for any immigration benefit with the government, (whether a U.S. visa or green card application), the official adjudicating the petition must determine whether that individual is or will likely become a public charge. This determination is referred to as a “public charge determination.”

What makes someone a public charge in the eyes of immigration?

A person is a “public charge” if they are primarily dependent on the Government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or institutionalization for long-term care at Government expense.

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Instructions for the 2021 Diversity Immigrant Visa Program

The Diversity Immigrant Visa Program registration season is now among us. The U.S. Department of State has released instructions on how to apply for the FY 2021 Diversity Immigrant Visa Program in which 55,000 Diversity Visas (DVs) will be up for grabs. Registration will begin promptly at 12:00 pm (ET) on October 2, 2019 and will continue until 12:00 pm (ET) on November 5, 2019. There is no cost to register for the Diversity Visa Program.

Please remember that the law allows only one entry per person during each registration period. Individuals who submit more than one entry will be disqualified.

How does selection occur?

The Department of State determines selectees through a randomized computer drawing. The Department of State distributes diversity visas among six geographic regions, and no single country may receive more than seven percent of the available DVs in any one year.

Am I eligible to apply?

You are eligible to apply if you meet the following requirements:

Requirement #1: You must be a national of one of the following countries (see below) OR

If you were not born in an eligible country, you may apply if your spouse was born in a country whose natives are eligible provided that both you and your spouse are named on the selected entry, are found eligible and issued diversity visas, and enter the United States simultaneously

OR

If you were born in a country that is ineligible, but neither of your parents were born or legally residents of that country at the time of your birth, you may claim the country of their birth.

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The process of getting a visa for a family member can be stressful.

The immigration system is complex. Being separated from your family can be painful and visa processing times frustrating. The law seems to change so often, it can be hard to keep track of what rules you’re supposed to follow.

Recently, the United States Department of State changed the family sponsored visa numbers for several countries. They released these new numbers in the September 2019 Visa Bulletin.

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In this post, we would like to keep our readers informed about Visa Bulletin projections for the coming months. Charles Oppenheim, Chief of the Visa Control and Reporting Division of the U.S. Department of State provides a monthly analysis of each month’s Visa Bulletin including discussion of current trends and future projections for immigrant preference categories. This post will focus on the EB-1, EB-2, EB-3, and EB-5 categories.

Below are the highlights of those trends and projections for the coming months.

Employment-Based Immigration: First Preference EB-1

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