Visa Lawyer Blog

Articles Posted in Congress

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On Wednesday, the Trump administration announced a proposal that will change the settlement agreement reached in Flores v. Reno, an agreement that limited the amount of time and conditions under which the U.S. government could detain immigrant children.

Reno v. Flores prevented the government from holding immigrant children in detention for over 20 days. The Trump administration is now seeking to do away with that prohibition and hold undocumented families traveling with children for an indefinite period of time.

In a press conference on Wednesday, Acting DHS Secretary Kevin McAleenan, announced the administration’s plans to publish a final rule in the Federal Register to do away with the Flores rule. The rule would become effective 60 days after publication. The proposal however will likely be met with great opposition and result in years long litigation.

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We are happy to report that on July 10, 2019 the House of Representatives passed the Fairness for High-Skilled Immigrants Act of 2019 (H.R. 1044), a bill that if enacted, would amend the Immigration and Nationality Act to eliminate the per-country numerical limitation for employment-based immigrants, and increase the per-country numerical limitation for family-sponsored immigrants.

What is H.R. 1044?

H.R. 1044 is a piece of legislation that was first introduced before the House of Representatives on February 7, 2019 by Representative Zoe Lofgren.

Employment-Based Sponsorship

The bill seeks to drastically change the way that our employment-based green card system works by eliminating the “per country cap” that limits the number of green cards that may be issued to applicants per fiscal year depending on their country of origin also known as country of chargeability.

Currently, employment-based workers fall into one of five “preference categories” including EB-1 Priority Workers, EB-2 Professionals Holding Advanced Degrees/Persons of Exceptional Ability, EB-3 Skilled Workers, Professionals, EB-4 Special Immigrants, and EB-5 Investors. Each of these categories is subject to Congressional numerical limitations, as well as per-country limitations.

H.R. 1044 proposes to remove the per-country limitations to enable applicants to obtain employment visas based on merit, and not based on country of origin. The bill would also eliminate the 7% cap for employment-based visas and remove an offset that reduced the number of visas for individuals from China.

The bill also establishes transition rules for employment-based visas from FY2020-FY2022, by reserving a percentage of EB-2 (workers with advanced degrees or exceptional ability), EB-3 (skilled and other workers), and EB-5 (investors) visas for individuals not from the two countries with the largest number of recipients of such visas. Of the unreserved visas, not more than 85% would be allotted to immigrants from any single country.

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Photo credit: Scott Kirkwood/NPCA

Today marks the fifth day of a partial government shutdown that began on Saturday. The government was forced into a shutdown after Democrats refused to concede $5 billion dollars to fund the President’s wall along the southwest border.

Since then, Democratic leaders in the House and Senate have not opened negotiations to appease the President. If a resolution is not reached before the end of December, it is highly unlikely that the President will receive the money demanded to fund the border wall. When the new House of Representatives convenes after the holidays, the Democrats will command a majority in the House of Representatives, making it more difficult for the President to obtain the necessary funding.

The government shutdown will affect various government entities including the Department of Homeland Security and Department of Labor.

Here’s how it will affect immigration:

EB-5 Immigrant Investor Regional Center Program:

Without congressional authorization to continue the EB-5 Regional Center Program beyond December 21, 2018, USCIS will not accept new Forms I-924, Application for Regional Center Designation Under the Immigrant Investor Program. Any Form I-924 applications that are pending as of December 21, 2018, will be placed on hold until further notice.

Per the USCIS Website:

“We will continue to receive regional center-affiliated Forms I-526, Immigrant Petition by Alien Entrepreneur, and Forms I-485, Application to Register Permanent Residence or Adjust Status, after the close of business on Dec. 22, 2018. As of Dec. 22, 2018, we will put unadjudicated regional center-affiliated Forms I-526 and I-485 (whether filed before or after the expiration date) on hold for an undetermined length of time.

All Forms I-829, Petition by Entrepreneur to Remove Conditions on Permanent Resident Status, filed before or after the expiration date, will not be affected by the expiration of the program.”

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Federal Judge John Bates of the Federal District Court for the District of Columbia has spoken to protect Dreamers from deportation, where Congress has remained silent. In a Tuesday ruling, Judge Bates called the Department of Homeland Security’s decision to rescind the DACA program “arbitrary and capricious,” and with no sufficient basis to justify rescission of the program, ordered DHS to accept and process new as well as renewal DACA applications.

As part of his opinion Judge Bates vacated the Trump administration’s decision to rescind DACA, for a period of 90 days, giving the Department of Homeland Security an opportunity to explain its decision to rescind the DACA program. If the government fails to adequately explain the grounds for finding the DACA program to be unlawful, DHS must accept and process new and renewal DACA applications. DHS has responded to the ruling in a statement where it vowed to “continue to vigorously defend” its decision to rescind the DACA program and looks “forward to vindicating its position in further litigation.”

This ruling is the third in recent months against the Trump administration’s decision to rescind the DACA program.  Earlier this year, Federal Judges in Brooklyn and San Francisco issued similar rulings to keep the DACA program in place, however the Bates ruling is the first ordering the government to accept new DACA applications.

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President Donald Trump is digging his heels in on DACA, although he is perhaps much more interested in securing $25 billion in funding, to build his long-promised wall between the United States and Mexico. On Friday, Congress voted to pass a $1.3 trillion spending bill, designed to fund the government through the end of fiscal year 2018.

Early on Friday, the President delivered a threatening message to Congress via Twitter, intimating that he would veto the spending bill, because it did not provide any relief to DACA recipients such as a path to citizenship. The President however failed to mention that also absent from the bill, was a promise from Congress to fully fund the President’s border wall.

Hours later, the President spoke to reporters and said that he had decided to sign the spending bill, despite the absence of a bipartisan compromise for Dreamers, because the bill ultimately provided much-needed funding for the military. The President told reporters, “My highest duty is to keep America safe. We need to take care of our military. I say to Congress, I will never sign another bill like this again.”

The President blamed the Democrats for failing to reach a deal with Republicans that would put Dreamers on a path to citizenship tweeting this morning, “DACA was abandoned by the Democrats. Very unfair to them! Would have been tied to desperately needed wall.” The President has vehemently insisted that any legislative action providing relief to Dreamers, must also concede $25 million in funding to his administration to build the border wall.

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Beginning April 1st New Delhi Will No Longer Process IR1/CR1 or IR2/CR2 visas

The U.S. Department of State announced via their website that the U.S. Embassy in New Delhi will no longer process IR1/CR1 visas for spouse of US Citizens or IR2/CR2 visas for unmarried minor children of US Citizens beginning April 1, 2018. Foreign nationals who are in the process of obtaining an IR1/CR1 visa or IR2/CR2 visa with an interview that has been scheduled on or after April 1, 2018, will have their interview at the U.S. Consulate General in Mumbai. We recommend that petitioners be on guard for any letters from the National Visa Center specifying the location of the intending immigrant’s interview, as well as details about how to prepare for the interview stage.

President’s DACA Deadline Passes

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Last week, the United States Senate began much-anticipated debates to reach a deal on immigration before the March 5th deadline imposed by the President. Debates in the Senate last week however were unavailing with both parties blaming one another for their inability to come up with a solution that would protect thousands of DACA recipients from deportation. To make matters worse the President issued a firestorm of tweets attacking leaders of the Democratic party and criticizing sanctuary cities that protect undocumented immigrants from deportation. Should Congress fail to enact legislation to shield Dreamers from deportation by March 5th, thousands of young undocumented immigrants brought to the United States as children will begin to lose their protection from deportation and the ability to work legally in the United States.

In the weeks ahead, Congress must also focus their efforts to pass a spending bill to permanently fund the government. Currently, the government is running on a short-term spending bill which expires midnight on March 23rd. Failure to pass a spending bill that permanently funds the government would mean yet another government shutdown. This urgent need to pass a spending bill may present an opportunity for Congress to finally reach a solution on top immigration priorities and seal the future of DACA recipients. Top immigration priorities for Republicans include building a wall between the United States and Mexico, beefing up the presence of border patrol agents and law enforcement, ending “Chain-Migration,” the diversity visa lottery program, while Democrats remain focused on creating a path to citizenship for Dreamers, and strongly oppose ending “Chain-Migration.” However, it would not be surprising if Congress fails to safeguard the status of DACA recipients given that members of Congress have on previous occasions failed to come up with a bipartisan solution.

Since October, approximately 122 young undocumented immigrants have had their DACA-permits expire on a daily basis, which is expected to add up to 22,000 immigrants by March 5th. Approximately 668,000 immigrants have been issued work permits under DACA that will not expire until March 5th or later.

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On Sunday night, a group of Republican Senators met to draft the Republican party’s version of the President’s immigration framework, in preparation for a floor debate that will take place Monday night on immigration. The Republican bill is one of many proposals that will be considered by the Senate as part of the ongoing immigration debate. The proposed bill, known as the Secure and Succeed Act of 2018, drafted by Republican Senators Chuck Grassley, John Cornyn, James Lankford, Thom Tillis, David Perdue, Tom Cotton, and Joni Ernst, mirrors the Trump administration’s immigration framework.

Over the next few weeks Senators will vigorously debate and amend proposals on immigration with the goal of coming up with a piece of legislation that can garner at least 60 votes in the Senate to advance to the House of Representatives. The process will involve a free-for-all debate on the Senate floor that will allow Senators to propose amendments, with the goal of coming up with a bipartisan solution to shield Dreamers from deportation.

The GOP currently has a 51-49 majority in the Senate, making it necessary for Republicans to obtain support from Democratic Senators to reach the 60-vote threshold. Republicans have a large enough majority in the House of Representatives that they do not need a single Democratic vote to pass desired legislation.

Path to Citizenship for Dreamers

The Republican proposal focuses on providing a 12-year path to citizenship for up to 1.8 million people including DACA eligible recipients. Undocumented immigrants currently enrolled in DACA would receive a 2-year credit allowing them to obtain citizenship within 10 years. The criteria to obtain citizenship would require an individual to have:

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U.S. Mission to Turkey Confirms Resumption of Visa Services for Turkish Nationals

On December 28, 2017, the U.S. Mission to Turkey issued an official statement confirming the full resumption of visa services for Turkish nationals. According to the statement, the United States government made the decision to resume visa services for Turkish nationals after the Government of Turkey agreed to adhere to high-level assurances that no additional employees or local staff of the U.S. Mission to Turkey would be detained, arrested, or placed under investigation by the Turkish authorities for performing their official duties for the U.S. Mission to Turkey. Turkish authorities have agreed to inform the U.S. government in advance if the Turkish government plans to detain or arrest a local staff member in the future.

The Department of State will resume all visa services for Turkish nationals given the cooperation of the Turkish government to comply with these high-level assurances. Cases brought by the Turkish authorities against U.S. Citizens will continue to be investigated by the U.S. Mission to Turkey to accomplish a resolution to those cases.

Service Disruption Causes Immigration Delays in U.S. Airports

On Monday January 1, 2018 immigration desk computers went down at various airports for approximately two hours, causing massive delays for travelers going through U.S. Customs and Border Protection following the year-end holidays. The system outage began at about 7:30 p.m. Eastern Standard Time and was resolved at approximately 9:30 p.m. Eastern Standard Time. U.S. Customs and Border Protection processed travelers using alternative procedures. The agency later confirmed that the service disruption was not malicious. Affected airports included John F. Kennedy International Airport in New York, Hartfield-Jackson International Airport in Atlanta, Georgia, Denver International Airport.

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Yesterday, November 6, 2017, the acting Secretary of Homeland Security, Elaine Duke, announced her decision to terminate the Temporary Protected Status (TPS) designation for Nicaragua, with a delayed effective date of 12 months until the termination of that designation, giving Nicaraguans enough time to make preparations to either depart the United States or seek alternative lawful immigration status in the United States, before the designation officially terminates on January 5, 2019.

Furthermore, Duke announced that the TPS designation for Honduras will be automatically extended for six months “from the current January 5, 2018 expiration date to the new expiration date of July 5, 2018.” This automatic extension has been granted because additional information is necessary to determine whether conditions have changed in Honduras that would justify termination of  the country’s TPS designation.

According to Duke’s announcement, the decision to terminate the TPS designation for Nicaragua was made after it was determined that the conditions in Nicaragua have changed since the country’s original 1999 designation that no longer justify granting protected status to this class of individuals. Furthermore, because the Secretary received no formal request from the Nicaraguan government to extend TPS status, and there was no evidence to indicate that the Nicaraguan government could not adequately handle the return of Nicaraguan nationals, the TPS designation for Nicaragua was no longer justified.

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