Visa Lawyer Blog

Articles Posted in Trump administration

by

register-2819608_1920

Are you ready for the upcoming H1B season for fiscal year 2021?

With the registration period fast approaching, we want to make sure you know everything there is to know about the new mandatory H-1B electronic registration process for fiscal year 2021 (FY 2021).

The following FAQ provides the most up to date information regarding the mandatory electronic registration requirement.

 

H-1B Registration Process Timeline

Feb. 24: Prospective petitioners may begin creating H-1B registrant accounts (account creation will remain open throughout the entire registration period). Representatives may create an account at any time.

March 1: H-1B registration period opens at noon ET.

March 20: H-1B registration period closes at noon ET.

March 31: Date by which USCIS intends to notify selected registrants.

April 1: The earliest date that FY 2021 H-1B cap-subject petitions may be filed.

FAQs

Q: What is the electronic registration requirement?

A: In order to participate in the upcoming H-1B lottery, prospective petitioners seeking to file H-1B cap-subject petitions for FY 2021, including for beneficiaries eligible for the advanced degree exemption, must first electronically register and pay the associated $10 H-1B registration fee for each beneficiary.

Only those petitioners who have submitted an electronic registration and have received a “Selected” registration notification may properly file an H-1B cap-subject petition for FY 2021.

Continue reading

by

flag-1446423_1920

In this blog post we discuss the highlights of the newly updated Policy Manual guidance released by USCIS which addresses the Inadmissibility on Public Charge Grounds Final Rule. The Final Rule and guidance is effective as of February 24, 2020 and applies to all applications and petitions postmarked on or after February 24, 2020 (except for in the State of Illinois where the Final Rule remains enjoined by court order).

These highlights are broken down by volume. Volume 2 addresses public charge grounds of inadmissibility for non-immigrants, Volume 8 discusses the public charge ground of inadmissibility in great detail, and Volume 12 discusses how the public charge rule may apply to citizenship and naturalization applications postmarked on or after February 24, 2020.

Highlights:

Non-Immigrants Seeking Extension of Stay or Change of Status (Volume 2 Chapter 4)

This section of the policy guidance clarifies that although the public charge ground of inadmissibility does not apply to nonimmigrants seeking either an extension of stay (EOS) or change of status (COS) on Forms I-129 or Form I-539, these applicants are generally subject to the “public benefits condition,” unless specifically exempted by law.

What is the public benefits condition?

According to the policy manual, “the public benefits condition requires an applicant seeking EOS or COS on or after February 24, 2020 (postmarked or if applicable, submitted electronically on or after that date) to demonstrate that he or she has not received, since obtaining the nonimmigrant status he or she is seeking to extend or from which he or she seeks to change, one or more public benefits, or more than 12 months in the aggregate within any 36-month period (where, for instance, receipt of two public benefits in 1 month counts as 2 months).

USCIS only considers public benefits received on or after February 24, 2020 for petitions or applications postmarked (or, if applicable, submitted electronically) on or after that date.”

Continue reading

by

thinker-28741_1280

In this blog post we answer your frequently asked questions regarding the public charge rule.

Overview:

On October 10, 2018, the Department of Homeland Security first published the final rule “Inadmissibility on Public Charge Grounds” which dramatically changes the way in which an individual is determined to be a “public charge.” Although five separate courts issued injunctions to stop the government from implementing the final rule, on January 27, 2020, the Supreme Court of the United States ruled in favor of the Trump administration, allowing the government to implement the public charge rule, except in the state of Illinois where a state-wide injunction remains in place.

The new regulations will make it more difficult for certain adjustment of status and immigrant visa applicants to prove that they are not likely to become a public charge to the United States government.

The following frequently asked questions have been prepared to better inform our readers and address concerns regarding the effect of the public charge rule.

Q: When will the public charge rule take effect?

A: Shortly after the Supreme Court’s ruling, USCIS formally announced on its website that the public charge rule will affect all applications for adjustment of status (green card applications) postmarked on or after February 24, 2020 (except in the state of Illinois, where the rule remains enjoined by a federal court).

Q: Who does the public charge rule apply to?

A: In general, all applicants for admission to the United States are subject to the public charge ground of inadmissibility under INA § 212(a)(4) unless specifically exempted.

The following non-citizens are affected by the public charge rule:

  • Applicants for adjustment of status in the United States
  • Applicants for an immigrant visa abroad
  • Applicants for a nonimmigrant visa abroad
  • Applicants for admission at the U.S. border who have been granted an immigrant or nonimmigrant visa, and
  • Nonimmigrants applying for an extension or change of status within the United States (new policy under the final rule).

Applicants seeking lawful permanent resident status (applicants for adjustment of status) based on a family relationship are most affected by the public charge rule.

Continue reading

by

update-1672349_1920

In this post, we would like to provide our readers with an important update released by the United States Citizenship and Immigration Services (USCIS) with respect to the public charge rule.

Given the Supreme Court’s recent ruling in favor of the government, the United States Citizenship and Immigration Services (USCIS) has announced that they will begin implementing the “Inadmissibility on Public Charge Grounds” rule on February 24, 2020, EXCEPT for in the State of Illinois, where the rule remains enjoined for the time being by a federal court.

That means that EXCEPT for in the State of Illinois, USCIS will begin to apply the Final Rule to applications and petitions postmarked (or submitted electronically) on or after February 24, 2020.

The postmark date for all applications and petitions sent by commercial courier (UPS/FedEx/DHL) is the date reflected on the courier receipt.

The public charge rule will NOT apply to applications or petitions postmarked before February 24, 2020 and petitions that remain pending with USCIS.

Prepare for Changes: USCIS to update all Adjustment of Status Forms

USCIS has announced that the agency will be updating all forms associated with the filing of adjustment of status, its policy manual, and will be providing updated submission instructions on its website this week to give applicants and their legal representatives enough time to review filing procedures and changes that will apply to all applications for adjustment of status postmarked on or after February 24, 2020.

Failure to submit forms with the correct edition dates and/or abide by the new filing procedures will result in the rejection of an application or petition.

The Final Rule provides that adjustment of status applicants subject to the public charge grounds of inadmissibility will be required to file Form I-944 Declaration of Self-Sufficiency along with Form I-485, as part of the public charge inadmissibility determination to demonstrate they are not likely to become a public charge. Therefore, we expect USCIS to provide instructions regarding the submission of Form I-944 with adjustment of status applications.

Continue reading

by

iran-4743599_1920

On January 23, 2020, the United States Citizenship and Immigration Services (USCIS) formally announced by way of a notice published in the Federal Register that nationals of Iran and their dependents are no longer eligible to change or extend their stay in E-1 or E-2 nonimmigrant status due to the termination of the 1995 Treaty of Economic Relations (also known as the Treaty of Amity) between the United States and Iran.

Under current immigration law, “the existence of a qualifying treaty or authorizing legislation is . . . a threshold requirement for issuing an E visa.” Therefore, the termination of the Treaty of Amity between the United States and Iran no longer provides a basis for Iranian nationals to qualify for the E nonimmigrant visa classification.

When did the Treaty end?

On October 3, 2018, the U.S. Department of Homeland Security notified Iran of the Termination of the Treaty of Amity. On October 23, 2019, the Department of State provided DHS with formal notice of the termination of the treaty. Currently, there are no other qualifying treaties with Iran or any legislation for granting E-1 or E-2 status to Iranian nationals.

What does this mean?

Accordingly, a national of Iran is no longer eligible for an extension of stay in E-1 or E-2 status or a change of status to E-1 or E-2 on the basis of the Treaty of Amity.

Continue reading

by

15146360079_21d95fc033_b

We kick off a brand-new week with breaking news handed down by the United States Supreme Court.

Today, in a 5-4 decision, the Supreme Court ruled that the Trump administration may enforce  the controversial rule entitled, “Inadmissibility on Public Charge Grounds” which expands the scope of public benefits that will render a permanent resident or immigrant visa applicant ineligible for immigration benefits. The public charge rule makes certain individuals inadmissible to receive permanent residence on public charge grounds based on their use of certain government assistance programs.

As we reported, on January 13, 2020 the Trump administration filed an emergency appeal asking the Supreme Court to lift a remaining lower court injunction preventing the government from enforcing the public charge rule. Today, the conservatives on the Supreme Court overpowered the four liberal justices on the court, in favor of the Trump administration, ruling that the government may now begin to enforce the public charge rule despite challenges to the rule pending in the lower courts.

Overview: 

Under current 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).

In determining whether an applicant is or will likely become a public charge USCIS has always considered the receipt of Temporary Assistance for Needy Families (TANF), Supplemental Security Income (SSI), and Medicaid, benefits that make an applicant ineligible for permanent residence.

The public charge rule goes further and expands the list of benefits that make a foreign national ineligible to obtain permanent residence or an immigrant visa (in addition to the benefits listed above). These additional benefits include:

Continue reading

by

hands-998986_1920

With just a few weeks into the new year, the judicial branch has been hard at work issuing decisions that spell trouble for the Trump administration.

On Wednesday, January 15th a federal judge in Maryland issued a temporary injunction preventing the Trump administration from implementing the President’s executive order “Enhancing State and Local Involvement in Refugee Resettlement,” issued by the President on September 26th of last year.

As part of the executive order, the President authorized state and local governments to refuse the placement or resettlement of refugees in their communities stating that, the Federal government, as an exercise of its broad discretion, “should resettle refugees only in those jurisdictions in which both the State and local governments” consent to receive refugees under the Department of State’s Reception and Placement Program.

The government by its order sought to tighten the placement of refugees in the United States by allowing refugees into the United States only if both the State and local government consent to their placement in the State or locality.

In response to a lawsuit filed by refugee-resettlement organizations challenging the executive order, U.S. District Judge Peter Messitte said that the plaintiffs were “clearly likely to succeed in showing, that, by giving states and local governments veto power over the resettlement of refugees within their borders, the [executive] order is unlawful.”

To preserve the status quo, until a final decision is made on the merits, Judge Messitte issued a temporary injunction blocking the government from enforcing any part of the executive order on a nationwide basis.

Continue reading

by

supreme-court-544218_1920-1

Welcome back to our blog! We kick off the week by bringing you recent developments regarding the government’s controversial rule entitled, “Inadmissibility on Public Charge Grounds” which sought to expand the scope of public benefits that could render a permanent resident or immigrant visa applicant ineligible for immigration benefits.

As you know, in October of 2019, the final rule “Inadmissibility on Public Charge Grounds,” was swiftly blocked by several federal judges shortly before going into effect. By court order, the government cannot implement the final rule anywhere in the United States until a final resolution has been reached in several lawsuits brought against the government challenging the validity of the public charge rule.

On Monday, January 13, 2020, the Trump administration filed an emergency appeal with the Supreme Court of the United States, asking the court to lift the remaining lower court injunction, that is currently stopping the government from enforcing the public charge rule.

The government’s request comes just one week after a three-judge panel for the U.S. Court of Appeals for the Second Circuit, upheld a lower court injunction, preventing the government from implementing the public charge rule on a nationwide basis.

Angered by the decision, the government decided to appeal the U.S. Court of Appeals decision by bringing the matter to the Supreme Court, urging the Court to side with the President and allow the implementation of the rule while a decision in the New York lawsuit is reached on the merits.

Continue reading

by

login-3938429_1920

It’s official. Yesterday, the United States Citizenship and Immigration Services (USCIS) published a notice in the Federal Register formally implementing the mandatory registration requirement for H1B petitioners seeking to file a cap-subject petition for Fiscal Year 2021. The notice went into effect on January 9, 2019, the date of publication.

Beginning March 1, 2020, before a petitioner can file an H-1B cap-subject petition, including petitions eligible for the advanced degree exemption, the petitioner must first electronically register with USCIS. Only petitioners with a valid registration selection will be eligible to file an H-1B petition with USCIS.

The initial registration period for FY 2021 will open on March 1, 2020 and is expected to close on March 20, 2020. The actual end date will be provided on the USCIS website.

Who must register?

H-1B cap-subject petitioners, including those eligible for the advanced degree exemption, seeking to file a FY 2021 H-1B cap petition will be required to first register electronically with USCIS and pay the associated $10 H-1B registration fee for each submission

Prospective petitioners or their authorized representatives must electronically submit a separate registration naming each alien for whom they seek to file an H-1B cap-subject petition. Duplicate registrations are prohibited.

What happens after the registration period closes?

Once the registration period closes, USCIS will conduct the initial selection process.

Continue reading

by

border-patrol-2747626_1920

The Trump administration is in full gear to expedite the removal of hundreds of asylum seekers, most of which are arriving from Central America.

As early as October of 2019, the Washington Post made public the existence of a confidential pilot program coordinated by the Department of Homeland Security and Department of Justice designed to swiftly deport asylum-seekers within a matter of days.

Under the program, Prompt Asylum Claim Review, the government would take a maximum period of 10 days to consider applications for asylum from individuals arriving at the U.S./Mexico border. Those denied would be swiftly removed from the country and returned to their homeland.

As a result, asylum determinations that usually take years to be made, will now be made in a matter of days.

It is easy to see how this type of accelerated removal from the country raises serious due process concerns and delegitimizes the complex asylum process.

A recent lawsuit filed by the American Civil Liberties Union against the Department of Homeland Security reveals that asylum seekers placed in this program are given only one window of approximately 30 minutes to one hour to call family members or retain counsel, and even where detainees have successfully retained counsel, CBP has denied attorneys physical access to speak to detainees, prohibited in-person meetings, and telephonic access. Where attorneys have tried to reach clients before their credible fear interviews, or hearings before an immigration judge, CBP has forced a detainee to proceed without opportunity to counsel with their attorney.

Continue reading