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The Department of Homeland Security (DHS) has announced a final rule that will redefine the “public charge” ground of inadmissibility under the Immigration and Nationality Act and change the way U.S. Citizenship and Immigration Services (USCIS) officers determine whether an applicant is inadmissible under that statutory ground.
USCIS has posted the pre-publication version of the rule. The final regulation is expected to be published in the Federal Register on Aug. 14, and the new rule will apply to applications and petitions postmarked or submitted electronically on or after the effective date of Oct. 15.
The rule will:
Background: The Trump administration first proposed the regulation in October 2018, and subsequently received 266,077 comments on the rule, the vast majority of which opposed the change, according to DHS. USCIS stated in its announcement of the rule that it will hold engagement sessions in the coming weeks “to ensure the public understands which benefits are included in the public charge inadmissibility rule and which are not.”
BAL Analysis: The rule is scheduled to take effect Oct. 15 at 12:00 a.m. EST, and the agency has stated that applications submitted before that date or that remain pending on that date will be adjudicated under current rules. Depending on how it is implemented, this change could have a significant impact on future permanent legal immigration flows, and organizations have already announced their intent to file lawsuits challenging the regulation. They will likely seek to block implementation of the rule while litigation proceeds. BAL is continuing to review the regulation and will provide updates on developments.
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.
U.S. Citizenship and Immigration Services said in a statement Friday that it will maintain operations at seven of its international offices. The agency had previously indicated it would close all of them by next year.
Key points:
BAL Analysis: While USCIS will maintain seven of its international offices, the agency has already started to wind down its services abroad. Applicants should expect services to be limited. U.S. Consulates and USCIS offices within the U.S. will share the workload for USCIS offices abroad that shut their doors. Those outside of the United States who are in need of USCIS services are encouraged to work closely with BAL in the coming months to determine their best filing options.
Copyright © 2019 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission.
The Labor Department has posted processing times current as of July 31 for permanent labor certification (PERM) applications and prevailing wage determination (PWD) requests.
PERM Processing: Applications filed in June and earlier are now being adjudicated, according to the department. Audit reviews are being conducted on applications filed in January and earlier, and appeals filed in April and earlier are being reviewed for reconsideration.
Average PERM processing times in July have not yet been posted. According to the Labor Department, average times in June were as follows:
PWD Processing: The National Prevailing Wage Center is currently processing requests filed in April and earlier for H-1B and PERM cases. Redeterminations are being considered on appeals filed in June and earlier for H-1B cases and May and earlier for PERM cases. Center director reviews are being conducted on appeals filed in May and earlier for PERM cases. Center director reviews are being conducted on appeals filed in July and earlier for H-1B cases and June and earlier for PERM cases.
Average times for issuance of prevailing wage determinations in July:
The Labor Department reports PERM and PWD processing time frames on its iCERT page.
BAL Analysis: BAL’s internal case tracking is mostly consistent with the Labor Department’s published processing times. BAL is seeing approvals for PERM applications filed in June and earlier and is seeing PWDs for requests filed in April and earlier. BAL is seeing adjudications of some audited cases somewhat sooner than the published time frames.
The Department of Homeland Security has extended Temporary Protected Status (TPS) for nationals of Syria who qualify for the program.
Background: The U.S. first designated Syria for TPS in 2012. The designation was most recently extended last year. There are about 7,000 Syrian TPS beneficiaries in the U.S.
DHS cited Syria’s “ongoing armed conflict and extraordinary and temporary conditions” in deciding to extend the designation. DHS will decide whether to grant another extension on or before Jan. 30, 2021. Notably, DHS took the step of temporarily extending but not “re-designating” the country of Syria for TPS, as it has previously. This means Syrian nationals who have not previously held TPS cannot now apply for the status, and must seek other forms of immigration relief to stay in the U.S.
The Trump administration has moved to end TPS designations for a number of other countries, including El Salvador, Haiti, Honduras, Nepal, Nicaragua and Sudan. Those terminations are currently on hold after a court ordered a temporary halt to the termination of TPS for four of the countries last fall, and DHS agreed to comply with the order for all six countries while it appeals the court’s decision. The litigation, however, does not involve TPS for Syrian nationals.
BAL Analysis: Employers should be aware of the extension for Syrian nationals with TPS-related employment authorization documents. Details on re-registration dates and procedures will be available when the government publishes an official notice.
U.S. Customs and Border Protection (CBP) will be updating the Electronic System for Travel Authorization (ESTA) website on Aug. 5. Nationals of 38 countries participating in the Visa Waiver Program who intend to travel to the U.S. without a visa are required to register with ESTA prior to travel.
BAL Analysis: ESTA applicants who are affected by the website update should plan to re-apply after Aug. 5.
The U.S. Immigration and Customs Enforcement (ICE) Student and Exchange Visitor Program (SEVP) has reportedly begun conducting site visits of employers of F-1 international students who are working under the STEM Optional Practical Training (OPT) program.
ICE has maintained the authority to conduct such visits since 2016, when regulations were issued governing the OPT extension for STEM students. U.S. companies that employ F-1 students on STEM-OPT should ensure that they have a standard procedure in place to handle a possible site visit.
BAL has created an FAQ to answer common questions about STEM OPT site visits and how employers should prepare for them. Read the FAQ here.
The Trump administration’s policies toward H-4 spouses—delaying their work authorization while preparing to eliminate their work rights altogether—are disrupting the lives of high-skilled workers and the businesses that employ them.
For over a year, U.S. Citizenship and Immigration Services has been working to reverse the 2015 regulation that allows a subset of H-4 spouses to work, and a rescission regulation could be formally proposed at any time. The agency has recently ended a longstanding practice of concurrently processing H-4 petitions and employment authorization documents (EADs) with the H-1B spouse’s petition, even for those who pay for expedited service. H-4 petitions are now taking months to be approved, despite the government’s own estimate that it takes an average of 24 minutes to process an H-4 renewal and 12 minutes to process an H-4 EAD. What was once a quick and reliable process has turned into a waiting game.
The 2015 regulation had two aims: reduce the personal and financial burden on H-1B families and help U.S. companies remain competitive with countries that allow accompanying spouses to work.1 Rescinding the regulation will have the opposite effect. The majority of H-4 workers are college-educated women from India—75% hold a bachelor’s or master’s degree, and 13% hold a degree higher than a master’s.2 Eliminating their right to work will cost more than $1 billion annually in lost revenue alone. The human costs, while less quantifiable, carry a significant price tag for businesses. Unexpected delays in employment authorization “can destabilize a business and leave mission-critical roles unfilled,” a bipartisan group of senators said in a letter to USCIS in May.
Last month, several H-4 spouses filed a lawsuit to stop the processing delays that are putting their jobs, homes and livelihoods at risk. One spouse has been waiting since January for his documents to be renewed. During the delay, his EAD expired, forcing his employer to put him on unpaid leave. If terminated, he will lose his employer-provided health insurance that covers the family, including the couple’s two U.S. citizen children. Another spouse risks losing her job with an insurance company while USCIS sits on her renewal application. She has passed up a better job because of uncertainty about whether her work authorization will be renewed in time. Some states require an approved H-4 petition to get a driver’s license which means H-4 spouses risk losing their driver’s licenses while their petitions are pending, making daily responsibilities like shuttling kids to school more difficult.
U.S. companies understand that when it comes to expatriate employees, a happy family correlates with higher employee satisfaction and better retention. A spouse who loses the right to work is more likely to move elsewhere, taking along the principal employee. When an accompanying expat spouse is unable to work, it not only impacts the family finances, but also carries personal costs such as social isolation, lack of purpose and domestic tension.3 While lawsuits wind through the courts and Congress debates whether to fix an outdated green card system, many couples are voting with their feet—returning to India to start businesses, or moving to Canada where open work permits are granted to spouses of high-skilled workers as a right and the route to permanent residency is much faster and more predictable.
U.S. policymakers should take a lesson from business. If they want to attract the best and the brightest, as they say they do, they can no longer take for granted that high-skilled immigrants will choose to come here when other countries are shaping their policies to compete for global talent—policies that take into consideration the personal and professional lives of both spouses and the well-being of the family unit as a whole.
Nancy Shalhub is an Associate in the Dallas office of Berry Appleman & Leiden LLP.
1 Department of Homeland Security, “Employment Authorization for Certain H-4 Dependent Spouses,” Federal Register, vol. 80, no. 37, Feb. 25, 2015, https://www.federalregister.gov/documents/2015/02/25/2015-04042/employment-authorization-for-certain-h-4-dependent-spouses.
2 American Action Forum, “The Economic Value of Work Permits for H-4 Visa Holders,” Jacqueline Varas, March 20, 2019, https://www.americanactionforum.org/research/the-economic-value-work-permits-for-h-4-visa-holders/#_edn3.
3 University of Tennessee at Chattanooga, “Impact of spousal work restrictions and number of dependents on expatriates’ work life and overall life satisfaction,” Industrial and Organizational Psychology Translational Research and Working Papers, 2018, https://scholar.utc.edu/iopsy/1.
The information contained here is meant to be informational, and while BAL has made every effort to ensure the accuracy of the information, it is not promised or guaranteed to be complete. Readers of this information should not act upon any information contained on this alert/blog without seeking professional counsel. This alert does not constitute legal advice or create an attorney-client relationship. Any reference to prior results, does not imply or guarantee similar future outcomes.
U.S. Citizenship and Immigration Services (USCIS) has published a final rule that makes major changes to the EB-5 Immigrant Investor Visa Program. The changes will take effect Nov. 21 and include:
Additional information: The EB-5 visa program was created in 1990 and allows foreign nationals to apply for conditional permanent residence if they make the required investment in a business or commercial project and create or retain at least 10 full-time jobs. USCIS Acting Director Ken Cuccinelli said in a statement that the increased investment thresholds will be put in place to “account for inflation over the past three decades” and that the changes to the TEA designation process will help “ensure that the reduced investment amount is reserved for rural and high-unemployment areas most in need.” The final rule was published in the Federal Register on July 24.
Family dependents of nonimmigrant visa holders filing to extend their status in the U.S. (Form I-539), including H-4 spouses of H-1B workers, are experiencing lengthy processing delays of several months.
Background: USCIS introduced a new version of Form I-539 Extend/Change Nonimmigrant Status on March 22 with little notice. The form is required for change or extension of status for certain visa holders, including individuals changing to F, J or M status, and for derivative family members of nonimmigrant visa holders, including H, L, E, O and others.
The form introduced a new biometrics fee and in-person appointment for taking biometrics. The agency indicated in a call with stakeholders that because the biometrics appointment takes three weeks, it would no longer be able to meet the 15-day premium processing time frame, and would no longer offer concurrent premium processing as a courtesy.
BAL Analysis: Affected family dependents should prepare for delays and possible lapse of their work authorization while their extension is pending. Depending on individual circumstances, some applicants may consider going abroad and applying for their visa at a U.S. Consulate to avoid USCIS processing delays.
The Department of Homeland Security published a notice in the Federal Register today that expands expedited removal procedures for deporting certain undocumented immigrants.
BAL Analysis: The announcement expands the categories of undocumented individuals who may be placed in expedited removal proceedings. Those subject to expedited removal whom U.S. Immigration and Customs Enforcement encounter in the interior of the U.S. under this new expansion must prove to ICE that they have been continuously present in the U.S. for two years to avoid expedited removal and be provided a hearing with an immigration judge. The notice contains a 60-day public comment period, but states that the Administrative Procedures Act does not require a notice-and-comment period and therefore DHS will implement the new policy immediately. The American Immigration Council and American Civil Liberties Union have announced they plan to challenge the new policy in court.