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The State Department has postponed enforcement of a “public charge” rule that would have required a heightened level of scrutiny to determine whether visa applicants were likely to end up relying on certain public benefits in the United States. The rule went into effect as an interim final regulation on Oct. 15.
“Visa applicants are not requested to take any additional steps at this time and should attend their visa interviews as scheduled,” the State Department said on its website. “The Department is seeking approval for use of a new form before it implements any changes to our processes. We will inform applicants of any changes to current visa application procedures.”
The State Department rule is similar to a Department of Homeland Security rule that was also scheduled to take effect Oct. 15 but was blocked after a federal court in New York enjoined DHS from enforcing it last week. A number of other federal courts have subsequently ruled to block the government from implementing the DHS rule as well while the lawsuits proceed.
BAL Analysis: For the time being, visa applicants will not be required to submit any additional information and should attend interviews as scheduled. BAL continues to monitor developments related to both the DHS and State Department rules and will provide updates as information becomes available.
This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.
Copyright © 2019 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com
According to annual statistics for fiscal year 2019 released by U.S. Citizenship and Immigration Services, approval rates for H-1B, L and other categories remain low and the number of requests for evidence, or RFEs, remains high, compared to the previous four fiscal years.
Key points:
*Completed petitions
BAL Analysis: The statistics for fiscal year 2019 (October 2018 through September 2019) confirm that USCIS continues to tighten adjudications as reflected in the low approval rates of H-1B and L petitions and RFEs rates reaching a five-year high.
Copyright © 2019 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.
A federal court in New York has issued a nationwide injunction blocking the Department of Homeland Security from implementing or enforcing the public charge rule that was scheduled to take effect Oct. 15.
Background: DHS finalized a regulation in August that redefined the “public charge” ground of inadmissibility under the Immigration and Nationality Act (INA) and changed the way USCIS officers determine whether an applicant is inadmissible under that statutory ground. Among the 11 lawsuits challenging the rule, several states led by New York sued DHS, arguing that the agency did not give sufficient justification for reversing longstanding policy as required by the Administrative Procedure Act (APA).
The court ruled that the states were likely to succeed on their claims and enjoined DHS from implementing the rule while the litigation proceeds.
“In short, [government officials] do not articulate why they are changing the public charge definition, why this new definition is needed now, or why the definition set forth in the Rule—which has absolutely no support in the history of U.S. immigration law—is reasonable. The Rule is simply a new agency policy of exclusion in search of a justification,” wrote U.S. District Court Judge George B. Daniels in a 24-page decision and order.
BAL Analysis: The government will likely appeal the order. In the meantime, to comply with the order, DHS cannot require applicants to submit new forms or updated versions of forms reflecting the new public charge questions while the injunction remains in place. Pending further court rulings, this means that adjustment-of-status applicants and those applying for a change or extension of nonimmigrant status will not be subject to the new DHS public charge standards. However, companies should be aware of the State Department rule and anticipate increased scrutiny of visa applicants who are applying at U.S. consulates abroad. The State Department has not yet released guidance regarding how this rule will be implemented. BAL is following these issues closely and will update clients with new developments as they become available.
Employers are reminded that employment authorization documents (EAD) issued by U.S. Citizenship and Immigration Services related to temporary protected status (TPS) for several nationalities have been extended automatically and remain valid through Jan. 2, 2020.
EADs of Nationals of El Salvador, Haiti, Nicaragua and Sudan with category code A-12 or C-19 and expiration dates in the following chart remain valid until Jan. 2, 2020.
Background: The Department of Homeland Security has moved to end TPS for the four countries. On Oct. 3, 2018, a court ordered DHS to maintain the TPS program while litigation challenging the administration’s decision to terminate it progresses in court. In response, DHS has automatically extended employment authorization documents while it appeals the court-ordered injunction.
The Ninth Circuit U.S. Court of Appeals heard oral arguments on the government’s appeal in August and could rule at any time.
To comply with the injunction, DHS also automatically extended EADs for Honduras and Nepal TPS holders as well.
BAL Analysis: Employers should be aware of the automatic extensions of EADs for affected nationals who are current employees and should refer to instructions in the Federal Register and the government’s TPS page for information related to Form I-9 employment authorization eligibility requirements.
On Wednesday evening, U.S. Citizenship and Immigration Services published new versions of several forms just days ahead of the Oct. 15 effective date of the public charge rule. Unless implementation of the rule is delayed by litigation, the current versions of the forms will be discontinued on that date and petitioners will be required to use the new versions.
Background: The Department of Homeland Security finalized the public charge regulation in August. The rule expands the types of benefits that may be considered to include not only cash benefits but certain non-cash benefits such as most forms of Medicaid, food stamps and Section 8 housing assistance. The rule defines “public charge” as an individual who receives one or more of the public benefits for an aggregate of more than 12 months in a 36-month period, and establishes a “totality of the circumstances” test for whether an applicant for adjustment of status is likely to become a public charge in the future. Individuals applying to extend or change nonimmigrant status must demonstrate that they have not received public benefits since obtaining their nonimmigrant status, but do not need to demonstrate that they will not become a public charge in the future.
BAL Analysis: Employers should anticipate lengthier case preparation and processing times for adjustment of status (green card) applications and petitions for nonimmigrant workers to change and extend their status, as the public charge rule requires additional documentation. BAL is following the lawsuits and will report on developments that could affect implementation of the regulation.
U.S. Citizenship and Immigration Services published a screenshot yesterday of the new H-1B online registration tool that is expected to be implemented for cap season this April. The agency also proposed adding a question to the H-1B petition to reflect that the H-1B candidate’s registration has been selected in the lottery, and will accept comments on both proposals until Nov. 8. USCIS previously proposed these changes in June, and is now opening an additional 30-day comment period for both.
Questions include:
The full screenshot was published on Regulations.gov here.
Background: USCIS has taken several steps in recent months toward implementing the H-1B registration system for the upcoming cap season. The system will require that employers submit an online registration form for each prospective H-1B candidate before filing season begins in April, during a designated registration period. USCIS will conduct a lottery of the registrations and will send selection notices to successful petitioners, who would then be permitted to file full H-1B petitions for adjudication on behalf of beneficiaries whose registrations were selected. USCIS has also proposed to charge a $10 fee for each registration. The comment period on that proposal ended Oct. 4, and the agency is expected to finalize the regulation this fall.
BAL Analysis: USCIS recently confirmed that it is planning to introduce the H-1B registration system for the upcoming cap season, “subject to continued testing,” and employers should anticipate that they will be required to submit online registrations through the new tool during a designated registration period before April 1, possibly as early as January. USCIS stated in the letter that it will conduct further outreach and training to allow members of the public to familiarize themselves with the new process. The agency will provide notice at least 30 days in advance of the opening of the registration period. BAL is closely monitoring developments and will provide updates as further details of the H-1B registration system and its implementation become available.
The public charge regulation, scheduled to take effect Oct. 15, imposes changes to filing requirements for several forms, including the Form I-129 Petition for Nonimmigrant Worker that is filed on behalf of H-1B and other nonimmigrant workers. The rule also requires a new form for many adjustment of status applicants that significantly increases their documentation obligations. The U.S. Citizenship and Immigration Services website indicates that the agency will discontinue the current forms as of Oct. 15, to be replaced with new forms that have not yet been released. The government is currently subject to 10 separate lawsuits challenging the public charge rule, and it remains to be seen whether any of the suits will delay implementation.
BAL Analysis: For affected petitions that are currently being prepared, employers are encouraged to file by the Oct. 14 deadline. Employers should anticipate delays and lengthier processing times for affected forms after the public charge rule takes effect Oct. 15. They should also factor in additional preparation time to allow employees to collect information and documents concerning their finances and other factors pertaining to their past use of or potential reliance on public benefits. BAL is following the lawsuit filed by AILA, which, if successful, could result in USCIS providing a 60-day grace period during which USCIS would be required to accept the current versions of the forms. BAL is also monitoring other lawsuits challenging the public charge rule, and will report on developments.
President Donald Trump issued a proclamation Friday that restricts the entry of immigrants to those who are covered by health insurance or demonstrate that they have the resources to pay for foreseeable medical costs
BAL Analysis: Employers and affected foreign nationals should prepare for the new requirement. The proclamation does not apply to nonimmigrant visa applicants or those entering the U.S. by means other than an immigrant visa, including lawful permanent residents. The new requirements are likely to be challenged in court and implementation could be delayed as a result. BAL will provide updates as information becomes available.
The U.S. State Department has formally nominated Poland for the Visa Waiver Program, the White House said in a statement Friday.
Key Points:
Additional information: There are currently 38 countries in the Visa Waiver Program, which allows eligible travelers to come to the U.S. without a visa, provided they register and obtain an Electronic System Travel Authorization (ESTA) before boarding their flight.
BAL Analysis: Poland has long sought visa-free travel to the United States, and the addition of Poland to the Visa Waiver Program would ease procedures for Polish tourists and business travelers. Travelers should note, however, that procedures have not yet changed and Polish nationals will be required to obtain a visa until DHS makes a final determination on the country’s entry into the program.
U.S. Citizenship and Immigration Services has responded to an Aug. 16 letter from business groups that sought information on the new H-1B online registration system and confirmation that the government would be implementing the new system for the upcoming H-1B cap season.
Background: USCIS finalized a regulation in January that introduces a new online registration system for the H-1B lottery. All petitioners will be required to submit an online form for each prospective H-1B beneficiary. USCIS will conduct a lottery and select registrations from that pool, and will then permit successful petitioners to file full H-1B petitions on behalf of each beneficiary named in a selected registration. Though the agency has not provided details about how the registration system will work for this coming cap season, it has taken steps in recent months indicating that it is moving forward with the H-1B registration tool, including proposing a rule last month that will impose a $10 fee for each H-1B registration. USCIS is expected to finalize the fee regulation this fall.
BAL Analysis: Employers should prepare for the upcoming cap season with the expectation that the H-1B online registration system will be implemented. Petitioners will be required to submit their online registrations before April 1 during a registration period that will likely take place between January and March. USCIS will announce the first day of the registration period at least 30 days in advance. It should be noted that the regulation allows the agency to suspend the online registration at any time and revert to the old lottery selection process. BAL is closely monitoring the rollout of the new system and will continue to provide updates as more information becomes available.