Visa Lawyer Blog

Articles Posted in Trump administration

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For many small businesses struggling to survive in the wake of the COVID-19 pandemic, receiving a Paycheck Protection Program (PPP) loan was the only option to stay afloat.

Unfortunately, the $350 billion in aid set aside by the CARES Act has run out. While it is believed that Congress will approve a second round of appropriations to fund the Paycheck Protection Program throughout the pandemic, there is no guarantee that this will occur.

What will happen to those who applied for a loan but did not receive any funds before the money ran out?

Those who submitted a PPP application through their lenders still have a good chance of getting funded as financial institutions continue to process loan applications that were submitted. Many lenders have not gotten around to notifying borrowers that they have been approved and will be funded. Borrowers should contact their lenders to follow up with the process.

Furthermore, according to recent information provided to the American Immigration Lawyers Association (AILA) by SBA expert Chris Chan, small business owners should keep the following things in mind when considering their next steps:

  • Businesses that applied up until a few days ago still have a real shot at hearing good news from their banks. Those that have already been approved by their bank should all get money within the 10 days required by law.
  • If the loan has an SBA number attached to it, that means it made it through the initial phase of processing and will likely be part of the loan amount that’s been approved. It doesn’t mean the loan could not be denied for other reasons, but there is hope in this scenario.
  • Other loans submitted under PPP may be declined, which would free up cash under the $349 billion for other loans in the queue to be processed.
  • There is bipartisan support of adding an additional $250 to $300 billion to the program in CARES Act 2. Congress is hung up over other provisions and adaptations that they want in the program, but there was news coverage this weekend that indicated they are close to an agreement.

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There can be no doubt that the Trump era has dealt a devastating blow to immigration, but perhaps the most affected individuals have been H-1B visa hopefuls and their employers.

Early on during the President’s administration, the President advocated for and implemented some of the most disastrous immigration policies ever seen—particularly because of the restrictive effect these polices have had in drastically reducing visa approvals for temporary workers.

Across the board, our office witnessed a staggering increase in the issuance of requests for evidence, and a high rate of denials for H-1B visa worker petitions, despite a highly qualified applicant base.

While these petitions were easily approved in past administrations, the reality began to set in that things would be much different under President Trump. Data has shown that from fiscal year 2015 to fiscal year 2019, H-1B denial rates for new H-1B petitions increased drastically from 6 percent to 21 percent., while denial rates for H-1B visa extensions increased to 12 percent in fiscal year 2019.

Where did it all begin?

USCIS began to aggressively limit H-1B visa approvals following the passage of the President’s executive order “Buy American and Hire American” signed on April 18, 2017.

With this order, the President single-handedly targeted one of the most sought-after visa programs in the United States—the H-1B visa program for highly-skilled temporary foreign workers. The order specifically directed the Attorney General and Secretaries of State, Labor, and Homeland Security to suggest reforms to ensure that H-1B visas would only be approved for the most-skilled or highest-paid workers.

While the President’s restrictive policies on immigration gained him a loyal following, they ultimately narrowed the playing field significantly for prospective H-1B workers.

Buy American and Hire American effectively gave the Department of Homeland Security—and by extension the United States Citizenship and Immigration Services—a broad range of power to develop and enforce restrictive policies limiting the issuance of H-1B visas.

Thereafter, USCIS went to work producing rule-making, policy memoranda, and implementing operational changes to carry out the President’s agenda with the goal of drastically limiting approvals for H-1B workers.

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UPDATE—The Latest on DACA: Last summer, the United States Supreme Court accepted the Trump administration’s writ of certiorari, agreeing to review several federal court cases challenging the Trump administration’s decision to terminate DACA. The Supreme Court could, at any moment, decide the fate of DACA, making this an extremely uncertain time for Dreamers. A decision is expected to be handed down by the Supreme Court in early 2020, just before the 2020 presidential election. In the meantime, given that no final decision has yet been made by the Supreme Court, DACA recipients may continue to submit renewal applications pursuant to three U.S. district court orders that remain in effect. As required by these orders, United States Citizenship and immigration Services (USCIS) resumed accepting renewal requests for DACA, however those who have never before been granted deferred action cannot apply.

DACA FREQUENTLY ASKED QUESTIONS

USCIS Continues to Accept DACA Renewal Requests

In early January of 2018, the U.S. District Court for the Northern District of California issued a preliminary injunction in favor of the plaintiffs in the case Regents of the University of California, et al. v. Department of Homeland Security, et al., which challenged the government’s decision to terminate DACA. The preliminary injunction had the effect of temporarily blocking the termination of the DACA program until a final decision is reached on the merits of the case. The injunction applied nationwide and required USCIS to resume accepting DACA renewal applications. Shortly after this court order, USCIS announced that it would resume accepting DACA renewal applications.

The Sapochnick Law Firm has drafted the following answers to your frequently asked questions regarding the current state of DACA, CIS’ announcement informing the public that it will continue accepting DACA requests, and further developments relating to DACA.

WHY YOU SHOULD APPLY FOR YOUR DACA RENEWAL NOW

At this time the fate of the DACA program is extremely uncertain. The United States Supreme Court is set to make a final decision regarding the legality of the DACA program at any time. Given that the liberal justices on the court are outnumbered by 5-4, it is more and more probable that the DACA program will be terminated. Once the Supreme Court casts the final vote, DACA recipients will likely lose the opportunity to apply for renewal of their benefits. Now more than ever DACA holders should take advantage of their ability to apply for a final renewal of their benefits. We hope that the Supreme Court will be on the right side of history, but there can be no guarantees.

1. I have never applied for DACA before, can I still submit an application?

No. The preliminary injunction does not require USCIS to accept DACA applications from first-time applicants. USCIS has made clear that it will not be accepting DACA applications from those who have never before been granted deferred action. The agency will only continue accepting applications to renew a grant of deferred action under DACA.

2. Why did I hear that applications for first-time applicants would be accepted?

In a previous case out of the U.S. District Court for the District of Columbia, NAACP v. Trump, federal judge John D. Bates ordered the government to submit additional information to justify its decision to terminate DACA—failure to do so meant that USCIS would be required to accept first-time applications for DACA as well as applications from DACA holders for advance parole.

The government did respond within the required period of time, issuing a memorandum outlining the government’s rationale for terminating the DACA program. Having satisfied the court’s requirement to produce the information, the U.S. District Court for the District of Columbia, “stayed” its previous order requiring that the DACA program be fully reinstated. As a result, the portions of the court order that would have allowed first-time applicants to seek DACA and allowed for DACA recipients to apply for advance parole, were stopped.

Given that the government complied with the court order, at this time, USCIS is not accepting DACA applications from first-time applicants, nor applications for advance parole from DACA recipients.

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Welcome back to Visalawyerblog! As you all know, USCIS recently announced that it has completed the selection process to meet the 65,000/20,000 annual numerical limitations for H-1B fiscal year 2021.

All accountholders should have been notified of selection via their USCIS online accounts by March 31,2020. We can confirm that our office received all notices of selection before March 31, 2020.

If you were selected, the following status will appear on the petitioner’s USCIS online account:

Selected: Selected to file an FY 2021 H-1B cap-subject petition.

What’s Next?

Now that the selection process has been completed, petitioners who properly registered the beneficiary through the mandatory H-1B electronic registration process and were selected in the lottery are eligible to file a FY 2021 H-1B cap-subject petition with USCIS.

Petitioners who were not selected cannot file a petition with USCIS.

Please note that selection does not mean that an H-1B petition has been approved. The petitioner must still establish eligibility for petition approval at the time of filing and the application must go through adjudication based on existing statutory and regulatory requirements.

When can I file?

H-1B cap-subject petitions for FY 2021, including those petitions eligible for the advanced degree exemption, may now be filed with USCIS if based on a valid selected registration (as of April 1st). 

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A new decision issued by a federal judge in the case Itserve Alliance Inc., et al., v. L. Francis Cissna, will dramatically change the way that the United States Citizenship and Immigration Services (USCIS) adjudicates H-1B petitions for Information Technology companies.

The new ruling invalidates key provisions of the CIS 2010 Guidance Memorandum (also known as the Neufeld Memo) and the CIS 2018 Policy Memorandum (PM-602-0157) for two reasons.

Firstly, the court found that the policies outlined in these memorandums were inconsistent with previous regulations that were lawfully passed by the government through the formal notice-and-comment rule-making process, as required by law.

Secondly, the court found that USCIS violated the law when it abandoned previous regulations and began applying their own policies without first going through the required formal notice-and-rulemaking process. Since these policies were not passed through the formal rule-making process, their application was found to be unlawful and unenforceable.

Background

During the start of the Trump administration, USCIS began adopting a narrow policy designed to limit the number of H-1B petitions that would be approved. Throughout this period, our office saw the highest number of requests for evidence and denial rates ever experienced in over a decade in practice. Other immigration attorneys across the country observed the same trends.

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Are you a small business owner feeling the pinch of the Coronavirus (COVID-19) pandemic? Have no fear, the newly passed Coronavirus Aid, Relief, and Economic Security Act (CARES) provides emergency financial relief for small to mid-sized businesses in the United States, to help business owners keep employees on their payroll.

This federal relief package allocates nearly $350 billion in emergency aid for businesses through a small business loan program called the Paycheck Protection Program. This program is separate from existing federal loan programs, including existing Small Business Administration (SBA) disaster relief loans which you may also decide to pursue.

Paycheck Protection Program

What is it about? 

The Paycheck Protection Program is a loan forgiveness program (available through June 30, 2020) designed to provide a direct incentive for small businesses to keep workers on their payroll.

For small business owners who participate, loans obtained through this program will be fully forgiven if (1) all employees are kept on the payroll for 8 weeks and (2) the money is used for payroll costs, rent, mortgage interest, or utilities (at least 75% of the forgiven amount must have been used for payroll). As an additional incentive, loan payments will be deferred for six months. No collateral or personal guarantees are required to obtain a loan.

According to the SBA, loan forgiveness is based on the employer maintaining or quickly rehiring employees and maintaining salary levels. Forgiveness is reduced if full-time headcount declines, or if salaries and wages decrease.

Please note: PPP loans are not grants, instead they are loans—the majority of which can be forgiven if used for payroll costs as outlined above.

Who is Eligible?

Any small business with less than 500 employees (including sole proprietorships, independent contractors, self-employed persons, private non-profits, and 501(c)(19) veteran’s organizations) affected by the coronavirus pandemic can apply.

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Great news! Today, March 27, 2020, USCIS announced that it has received enough electronic registrations to reach the FY 2021 H-1B cap—just 7 days after the registration period closed on March 20, 2020.

USCIS randomly selected from among registrations that were properly submitted to meet the 65,000/20,000 annual numerical limitations for the regular cap and advanced degree exemption.

Petitioners who have been selected will be notified of their selection no later than March 31, 2020 (4 days). Only petitioners with selected registrations will be eligible to file an H-1B cap-subject petition for the beneficiary named in the applicable selected registration.

How will I be notified?

Now that the selection process has been completed, USCIS will send electronic notices to all registrants with selected registrations that are eligible to file an H-1B cap-subject petition on behalf of the individual named in the notice within the filing period indicated on the notice.

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It has been nearly two weeks since the President of the United States declared a public health emergency for COVID-19, forcing the American economy to come to a screeching halt. Thereafter, states enacted their own measures requiring non-essential businesses across the country to shutter temporarily until the virus has been contained. Although these measures have been undoubtedly necessary to prevent the rapid spread of the virus, the majority of Americans nationwide have lost their livelihoods overnight.

This past week lawmakers have been busy drawing up legislation that would provide emergency financial assistance for individuals, families, and businesses in the United States.

This afternoon Congress approved the Coronavirus Aid, Relief and Economic Security Act (CARES), and the bill now heads to the President’s desk for signature.

Although this legislation is sweeping in scope, this post will specifically discuss financial relief for individuals and families, and more importantly which individuals will qualify to receive financial assistance.

What does the CARES Act do for individuals and their families?

Under the Act, most single individuals earning less than $75,000 can expect to receive a one-time payment of $1,200. Married couples filing jointly (earning less than $150,000), would each receive a check ($2,400) and families would receive $500 per child. For example, a family of four earning less than $150,000 can expect to receive $3,400.

Rebates would begin to phase out at $75,000 for singles, $112,500 for heads of household, and $150,000 for joint taxpayers at 5 percent per dollar of qualified income, or $50 per $1,000 earned. Rebates phase out completely at $99,000 for single taxpayers with no children and $198,000 for joint taxpayers with no children.

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As the impact of COVID-19 grows, we think it is important that you hear directly from us about the mitigation efforts that we the Sapochnick Law Firm have enacted to reduce the risk of infection to our clients, attorneys, and valued staff members.

At this critical juncture, our focus remains providing the highest quality of service to our clients, while at the same time preserving the health, safety, and wellbeing of all those we come in contact with.

To that end, our Firm is hard at work to avoid critical disruptions in service from the COVID-19 outbreak, while at the same time acting responsibly to do what we can to prevent further spread of this virus. We continue to closely monitor and assess this evolving situation and are diligent about communicating with affected clients regarding delays or other issues resulting from this evolving situation. In recognizing the fluidity of this situation, we have engaged our executive staff to meet regularly to monitor activities and amend our policies accordingly.

Our approach to COVID-19

In meeting the needs of our clients while complying with government directives, our Firm has established an Alternate Work Schedule Program that incorporates business continuity for all critical and essential services, especially those in which time is of the essence. In part, our Firm will engage the use of sophisticated and effective remote working software that will allow non-essential employees to work from the comfort of their homes to promote social distancing and reduce transmission. Essential employees in good health will continue to work in office, however every effort will be made to limit client meetings to only those that are essential and cannot be carried out through online platforms.

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In the midst of the ongoing Coronavirus (COVID 19) pandemic, USCIS reminds applicants and petitioners impacted by the pandemic that they can seek certain types of discretionary relief on a case-by-case basis.

Relief for Individuals Seeking Extensions/Change of Status

Special relief is available to individuals who were unable to file an extension or change of status petition before the end of their authorized stay expired, if a special situation prevented the individual’s departure and/or filing.

According to USCIS, “when applying for an extension or change of status due to a special situation that prevented your planned and timely departure,” the agency “may take into consideration how the special situation prevented your departure.”

In addition, if an applicant was not able to apply for an extension or change of status before their authorized period of admission expired, USCIS in their discretion may excuse the delay if it was due to extraordinary circumstances beyond the applicant’s control. An applicant in such a situation should be prepared to provide documentary evidence of those extraordinary circumstances. Depending on the applicant’s situation, the types of evidence that can be provided will vary.

Relief for F-1 Students Based on Severe Economic Hardship Caused by Unforeseen Circumstances

F-1 students who are experiencing severe economic hardship because of unforeseen circumstances beyond their control (such as those impacted by the COVID 19 pandemic) may request employment authorization to work off-campus (if they meet certain regulatory requirements) by filing Form I-765 Application for Employment Authorization along with Form I-20, and supporting materials. See 8 CFR 214.2(f)(9).

The student’s Form I-20 must include the employment page completed by your Designated School Official, certifying your eligibility for off-campus employment due to severe economic hardship caused by unforeseen circumstances beyond your control.

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