Visa Lawyer Blog

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elijah-o-donnell-t8T_yUgCKSM-unsplash-scaledA new media report has provided information revealing that the Trump administration is planning to put a temporary “hold” on green card applications filed from the United States.

What is this all about?

As you know earlier this year, the President signed “Proclamation Suspending the Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak,” limiting the immigration of aliens outside of the U.S., without an immigrant visa, or official travel document as of April 23rd.

Recent information has surfaced suggesting that the Trump administration seeks to temporarily suspend adjustment of status requests to permanent residence from those living in the United States.

According to a source speaking on condition of anonymity, USCIS has internally told employees that the agency will be temporarily suspending the processing of adjustment of status petitions filed for individuals in the United States, with some exceptions.

What are the exceptions?

Those who fall within the following exceptions will not be impacted by this temporary suspension:

  • Cases already given to the adjudicator (the immigration officer in charging of issuing a decision in your case)
  1. Example: If you had an interview scheduled in April or March and that interview was cancelled because of COVID-19, the suspension does not apply to you
  • Continuations – people who have had their cases continued
  1. Example: Cases that were paused because of COVID, interview rescheduling, etc.
  • Applications filed by medical workers and/or providers
  1. Example: If you are an essential worker fighting COVID-19 you are exempted from the order
  • Cases at the National Benefits Center will not be impacted
  • Very old cases that are currently pending a decision
  • Adjustment of status applications filed on the basis of the Liberian Refugee Immigration Fairness (LRIF)
  • Identified National Security Concerns

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New rumors are yet again circling regarding the possibility of a future executive order banning the entry of certain non-immigrants from the United States. An official speaking on condition of anonymity has fueled these rumors divulging information that the Trump administration is getting ready to issue a new executive order that would temporarily suspend the entry of L-1, H-1B, H-2B, and J-1 non-immigrants for a period lasting several months.

A copy of the executive order has allegedly been leaked to the media; however, our office has not been able to find a draft copy of such an order. It is also important to note that even if a version of the executive order has been leaked, the official version of a future executive order banning non-immigrants might look substantially different.

What is being said about the potential executive order?

The order is rumored to suspend the entry of L-1, H-1B, H-2B, and J-1 non-immigrants for a temporary period lasting several months.

Like previous executive orders suspending immigrant and non-immigrant entry, the order will contain numerous exceptions, although these exceptions have not yet been made clear. We believe exceptions will likely apply to essential workers such as health professionals, those working to mitigate the effects of COVID-19, and essential workers in food-related industries.

As it relates to J-1 visas, it is rumored that only summer workers, camp counselors, trainees, and interns will be impacted, not medical physicians.

TAKEAWAY: If you have a valid L-1, H-1B, H-2B, or J-1 non-immigrant visa and you are abroad, you should consider returning to the United States as soon as possible.

Who will the order likely impact?

The order is rumored to impact only those in L, H, and J non-immigrant status outside the United States, however, the Trump administration is considering adding regulatory changes to the order that would impact OPT students and new H-1B applicants in the United States. This includes provisions that would end the STEM OPT program, and provisions tightening H-1B visa requirements to narrow the definition of “specialty occupation,” require higher wages, and increase H-1B filing fees.

TAKEAWAY: STEM OPT applications and extensions should be submitted as early as possible to avoid a negative impact.

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In response to the growing rate of coronavirus (COVID-19) cases in Brazil, on May 24, 2020, the President signed the “Proclamation on Suspension of Entry as Immigrants and Nonimmigrants of Certain Additional Persons Who Pose a Risk of Transmitting Novel Coronavirus.” This marks the fifth presidential proclamation to limit the entry of foreign nationals to prevent the spread of coronavirus in the United States. The previous proclamations were as follows:

Overview

The May 24th proclamation suspends the entry of immigrants or nonimmigrants to the United States who were physically present within the Federative Republic of Brazil during the 14-day period preceding their entry or attempted entry into the United States.

Who is Exempted?

The proclamation specifically exempts:

  • Lawful permanent residents of the United States
  • Any alien who is the spouse of a U.S. Citizen or lawful permanent resident
  • Any alien who is the parent or legal guardian of a U.S. citizen or lawful permanent resident, provided that the U.S. citizen or lawful permanent resident is unmarried and under the age of 21;
  • Any alien who is the sibling of a U.S. citizen or lawful permanent resident, provided that both are unmarried and under the age of 21;
  • Any alien who is the child, foster child, or ward of a U.S. citizen or lawful permanent resident, or who is a prospective adoptee seeking to enter the United States pursuant to the IR-4 or IH-4 visa classifications;
  • Any alien traveling at the invitation of the United States Government for a purpose related to containment or mitigation of the virus;
  • Any alien traveling as a nonimmigrant pursuant to a C-1, D, or C-1/D nonimmigrant visa as a crewmember or any alien otherwise traveling to the United States as air or sea crew;
  • Any alien: seeking entry into or transiting the United States pursuant to one of the following visas: A-1, A-2, C-2, C-3 (as a foreign government official or immediate family member of an official), E-1 (as an employee of TECRO or TECO or the employee’s immediate family members), G-1, G-2, G-3, G-4, NATO-1 through NATO-4, or NATO-6 (or seeking to enter as a nonimmigrant in one of those NATO categories); or

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The Trump administration is setting their sights on a new enemy: students and researchers of the People’s Republic of China. A new presidential proclamation, “Proclamation on the Suspension of Entry as Nonimmigrants of Certain Students and Researchers from the People’s Republic of China,” issued on May 29, 2020, will temporarily suspend the entry into the United States of Chinese nationals seeking to enter the United States on an F or J visa to study or conduct research in the United States, except for student seeking to pursue an undergraduate course of study. The proclamation goes into effect at 12:00 pm (ET) today June 1, 2020 and will remain in effect until terminated by the President.  

Specifically, the proclamation limits the People’s Liberation Army’s (PLA) ability to misuse nonimmigrant F student and J researcher visa programs.

Who will be suspended?

F or J Chinese nationals entering to study or conduct research in the United States and who either

  • Currently “receive funding from or who currently is employed by, studies at, or conducts research at or on behalf of… an entity in the PRC that implements or supports the PRC’s ‘military-civil fusion strategy’,” or
  • In the past “has been employed by, studied at, or conducted research at or on behalf of… an entity in the PRC that implements or supports the PRC’s ‘military-civil fusion strategy'”

The proclamation defines “military-civil fusion strategy” as “actions by or at the behest of the PRC to acquire and divert foreign technologies, specifically critical and emerging technologies, to incorporate into and advance the PRC’s military capabilities.”

Section 1 exempts F and J undergraduate students from the proclamation. In addition, graduate students and researchers are also exempt from the proclamation if they do not have any of the specific current or past funding, employment, study, or research nexuses with “an entity in the PRC that implements or supports the PRC’s ‘military-civil fusion strategy’.”

Why the Proclamation?

The proclamation was issued to protect the country’s national and economic security from attempts by the People’s Republic of China “to illicitly acquire American technology and intellectual property from our academic institution and research facilities for Chinese military ends.”

According to the Department of State, “[the country’s] concern is with the malign actions of the Chinese Communist Party and specific individuals, not with the Chinese people.” These actions were made as “a direct consequence of PRC government strategies and policies that exploit the access of some of China’s brightest graduate students and researchers, in targeted fields, to divert and steal sensitive technologies and intellectual property from U.S. institutions, taking undue advantage of our [country’s] open and collaborative academic and research environment.”

The U.S. government is particularly concerned that U.S. graduate students and researches will be targeted, co-opted, and exploited by the government of the People’s Republic of China for military gain.

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Great news for our loyal followers! The time has come – today the U.S. Citizenship and Immigration Services (USCIS) announced that premium processing services will resume.

Beginning June 1, 2020, premium processing services for all Form I-129 Petition for Nonimmigrant Workers will be resumed.

What about other types of petitions?

Premium processing service will be resume for other types of petitions in phases as follows:

-Beginning June 8th USCIS will accept premium processing requests for:

  • H-1B petitions filed before June 8 that are pending adjudication and are cap-exempt (for example, petitions filed by petitioners that are cap-exempt and petitions filed for beneficiaries previously counted toward the numerical allocations).
  • All other Form I-129 petitions (non H-1B petitions) for nonimmigrant classifications eligible for premium processing filed before June 8 that are pending adjudication.

-Beginning June 15th USCIS will resume premium processing for:

  • H-1B petitions requesting premium processing where Form I-907 was filed concurrently with Form I-129 (or request for a petition filed on or after June 8) and the beneficiary is exempt from the cap because:
    • The employer is cap-exempt or because the beneficiary will be employed at a qualifying cap-exempt institution, entity or organization (such as an institution of higher education, a nonprofit research organization or a governmental research organization); or
    • The beneficiary is cap-exempt based on a Conrad/IGA waiver under INA section 214(l).

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We have very exciting news for our readers. Yesterday, May 27th the United States Citizenship and Immigration Services (USCIS) confirmed that it is preparing to reopen some domestic offices and resume services to the public on or after June 4th.

As you know, on March 18th USCIS made the difficult decision to suspend in-person services at its field offices, asylum offices, and application support centers (ASCs) nationwide to reduce the spread of the Coronavirus. While offices were closed, USCIS continued to provide emergency in-person services.

From the agency’s announcement it is clear that not all domestic offices will reopen to the public by June 4, but we know that at least some will begin to reopen to provide relief to those that have been waiting to attend their interviews or biometrics appointments.

USCIS will be following all state mandated precautions including reducing the number of appointments and interviews scheduled for the day, enforcing social distancing, cleaning and sanitizing facilities, and reducing waiting room occupancy. Members of the public will be required to wear masks covering their nose and mouth. Sanitizer will be provided to the public.

USCIS urges those who are feeling sick to stay home and schedule their appointments once they are feeling better. As a reminder, there is no penalty for rescheduling your appointment if you are sick.

We expect that USCIS will be scheduling far less appointments than usual to reduce the number of people in the facility at any one time. That means that appointment times will be spaced out and there will be a slight delay to reschedule everyone who has been waiting for an appointment. Please be patient and wait to receive a new appointment notice in the mail.

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A brand-new bill called the H-1B and L-1 Visa Reform Act of 2020 (S. 3770) sponsored by Republican Senator Chuck Grassley has recently surfaced. As you might have already guessed, the bill seeks to make changes to the current H-1B and L visa programs to reduce fraud and abuse within the H-1B and L visa programs, provide protections for American workers, and enforce stricter requirements for the recruitment of foreign workers. The H-1B visa program is aggressively targeted in this new piece of legislation.

Proposed Changes to the H-1B visa program

First, as it relates to the H-1B visa worker program, the bill proposes changes to existing wage requirements.

The law would require employers to pay the highest wage from three categories:

1) the locally determined prevailing wage level for the occupational classification in the area of employment

2) the median average wage for all workers in the occupational classification in the area of employment; or

3) the median wage for skill level 2 in the occupational classification found in the most recent OES survey.

Second, the bill would make changes to current law and require U.S. employers seeking to hire H-1B workers to publish job postings on a website established by the Department of Labor. After filing the labor condition application, the employer would be required to post the job on the website for at least 30 calendar days. The job posting would have to include a detailed description of the position, including the wages and other terms and conditions of employment, minimum education, training, experience, and other requirements for the position, as well as the process for applying for the position.

Third, all H-1B employers would be required to prove that they have tried to recruit American workers for jobs offered to H-1B workers. Under current law, only H-1B dependent employers (those with more than 50 full time employees of which at least 15% are H-1B employees) are required to recruit American workers for H-1B positions. This would be a drastic change in the law creating additional burdens for U.S. employers seeking to hire foreign workers with specialized skills.

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We have received an outpouring of emails, comments, and messages from our loyal followers asking when Consular posts and Embassies worldwide will reopen. We understand the frustration that our readers feel and sympathize with the world situation.

While USCIS has announced that in person appointments will resume on June 4th, the Department of State has not yet released any updates regarding procedures for reopening Consulates and Embassies nationwide. Given that the pandemic is a fluid situation and travel restrictions vary from country to country, each Consulate and Embassy will reopen for in person services at a different pace.

For the moment, emergency consular services continue to be available and appointments can be scheduled for emergency related issues by contacting the US Consulate or Embassy directly. Click here for a complete list of US Consulate and Embassies including their contact information.

Outside of emergency services, the vast majority of consulates and embassies will continue to remain closed for in-person appointments for the time being. Most consulates and embassies have provided the following message on their webpage regarding availability of visa appointments:

We will resume routine visa services as soon as possible but are unable to provide a specific date at this time. The MRV fee is valid and may be used for a visa application in the country where it was purchased within one year of the date of payment. If you have an urgent matter and need to travel immediately, please follow the guidance provided at https://ais.usvisa-info.com/ to request an emergency appointment or contact AIS by phone by dialing the local number: +374 60 465 986. If calling from the U.S. dial +1-703-520-2525 or contact by email weeac_contactus+gb+info+en@visaops.net to request an emergency appointment.

You can find the local AIS number by clicking on your country on the AIS website then scrolling to the bottom of the website and clicking on “Contact Us” under the “Help” section.

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The Department of State has released the visa bulletin for June 2020 outlining the availability of immigrant visa numbers for the upcoming month.

NOTE: Adjustment of Status Filing Charts June 2020

For Family-Sponsored Filings:
In the F2A category, there is a cutoff date on the Dates for Filing chart.  However, the category is “current” on the Final Action Dates chart.  This means that applicants in the F2A category may file for adjustment applications using the Final Action Dates chart for June 2020.

For all the other family-sponsored preference categories, you must use the Dates for Filing chart in the Department of State Visa Bulletin for June 2020. 

For Employment-Based Preference Filings:
For all employment-based preference categories, you must use the Final Action Dates chart in the Department of State Visa Bulletin for June 2020.

June Visa Bulletin Cutoff Dates

Employment Based Categories

According to the Department of State’s June Visa Bulletin, the following cutoff dates will apply for the issuance of an immigrant visa for employment-based categories:

  • EB-1: All countries remain current during the month of June except for China and India. EB-1 China moved forward by one month to August 15, 2017, while EB-1 India moved forward by more than 10 months to June 8, 2016.
  • EB-2: All countries remain current during the month of June except for China and India. EB-2 China moved forward by one month to November 1, 2015, and India moved forward by 10 days to June 12, 2009.
  • EB-3 Professional and Skilled Workers: All countries remain current except for India and China. Except for India and China all countries moved forward by more than ten months to November 8, 2017. Cutoff dates for China and India advanced by one month, with China moving ahead to June 15, 2016, and India moving ahead to April 1, 2009.
  • EB-5: Most countries remain current. EB-5 China moved forward by two weeks to July 15, 2015; EB-5 India moved forward by three months to January 1, 2020; and Vietnam moved forward by three weeks to April 22, 2017.

Cutoff dates in the Dates for Filing Chart for June have remained mostly the same in comparison to the previous month, the only change is for EB-4 El Salvador, Honduras, and Guatemala which moved forward four and a half months to February 1, 2017.  USCIS will accept adjustment applications based on the Final Action Dates chart for June 2020, the same as last month.

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 Family-Sponsored Categories

According to the Department of State’s June Visa Bulletin, the following cutoff dates will apply for the issuance of an immigrant visa for family-sponsored categories:

**Note only applicants in the F2A category may file using the Final Action Dates chart for June 2020 to file adjustment applications. All other family-sponsored preference categories must use the Dates for Filing chart.

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Alert Regarding the April 22nd Presidential Proclamation

As you may be aware President Trump’s April 22nd presidential proclamation suspends the issuance of immigrant visas at U.S. Consulates worldwide for certain classes of immigrants until June 22, 2020, assuming the proclamation is not extended beyond this date. As Consulates worldwide begin to reopen, consular officers will enforce the presidential proclamation by refusing immigrant visas to those who were outside of the United States as of 11:59 p.m. EDT on April 23, 2020, have not been issued an immigrant visa or similar U.S. travel document, and are not otherwise exempt from the proclamation. The following types of immigrants have been specifically exempted from the proclamation and are eligible for visa issuance in June:

  • Applicants for EB-5 immigrant visas;
  • Spouses of U.S. citizens;
  • Children under 21 of U.S. citizens and prospective adoptees in the IR-4 or IH-4 visa classifications;
  • Foreign nationals seeking to enter on an immigrant visa as a physician, nurse or other healthcare professional, as well as their spouse and unmarried children under 21;
  • Foreign nationals whose entry would further important U.S. law enforcement objectives;
  • Members of the U.S. armed forces and the spouses and children of such individuals;
  • Foreign nationals seeking to enter as Special Immigrants in the SI or SQ classification, and the spouse and children of such individuals; and
  • Foreign nationals whose entry is in the U.S. national interest.

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The economic fallout of the coronavirus pandemic has been felt by nearly all sectors of the economy, but perhaps the most unexpected victim has been the United States Citizenship and Immigration Services (USCIS).

Unlike many other government agencies, USCIS does not depend on government funding to survive. Instead, the agency primarily relies on fees, charged to applicants and petitioners applying for immigration benefits, to remain in operation.

A spokesman for the agency recently revealed that the agency is strapped for cash. Americans nationwide have had to cut back on spending during this coronavirus pandemic, leaving little money to spare on the very expensive filing fees required for various types of immigration benefits, such as citizenship and green card applications. The agency is in such a precarious position that it has now asked the United States government for a $1.2 billion bailout to remain in operation.

USCIS has said that its revenue could plummet by more than 60 percent by the end of the fiscal year which ends on September 30, 2020. If the agency does not receive additional funding from the government, it will run out of money by the summertime.

In anticipation of its decreased revenue, USCIS is preparing to take drastic measures to stay afloat, such as adding a 10 percent “surcharge” to applications, on top of proposed filing fee increases. These additional fees could be imposed within the coming months.

Of course, an increase in fees is bad news for non-citizens who are already struggling to make ends meet.

Many have blamed President Trump’s restrictive policies on immigration for the decrease in revenue. The President’s most recent proclamations coupled with his restrictive immigration policies have made it more difficult for immigrants and non-immigrants alike to obtain immigration benefits. These policies have been designed to discourage foreign nationals from seeking immigration benefits because of the high rate of visa denials. In addition, the most recent proclamation has kept consular immigration at a standstill.

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