The Current State of Nonimmigrant and Immigrant Visa Processing
During the past year, U.S. Government policies that impact consular processing and visa issuance have frequently changed based upon unpredictable shifts in the COVID-19 global pandemic and the arrival of variant virus strains. Moreover, the Trump Administration enacted and extended many executive orders and policies at the end of its term that are being lifted by the Biden administration with a piecemeal approach. All of this has understandably caused confusion for many individuals that are seeking to enter the United States in either immigrant or nonimmigrant status.
First, the good news: as of March 31, 2021, there is no blanket Presidential ban on nonimmigrant or immigrant visas in place. However, operations at the U.S. Embassies and Consulates worldwide have not yet returned to normal. As explained below, the U.S. consulates are still adhering to valid region-based COVID-19 bans, and the consulates are grappling with backlogs caused by the long pause in most consular operations.
On April 6, 2021, the Department of State announced that U.S. embassies and consulates that process nonimmigrant visa applications “are prioritizing travelers with urgent needs, foreign diplomats, mission-critical categories of travelers (such as those coming to assist with the U.S. response to the COVID-19 pandemic, and workers who are essential to the American food supply), followed by students, exchange visitors, and some temporary employment visas.” The DOS further stated that the COVID-19 pandemic “has created a significant backlog of both immigrant and nonimmigrant visa applicants awaiting a visa interview.”
Additionally, there are regional travel bans still in place. These bans may impact foreign nationals if they have been physically present in Brazil, China, Iran, Ireland, South Africa, the United Kingdom or the Schengen Area in the 14 days before they attempt to enter the U.S. Although these restrictions are still in place, the Biden Administration has provided more exceptions to the ban recently. As of April 8, 2021, Applicants for immigrant visas and fiancé(e) visas (K visas) are exempt from the regional travel bans. Exemptions will also be provided to certain exchange visitors, including au pairs, interns, trainees and teachers who meet certain criteria.
Anyone traveling to the U.S. by air must provide documentation of a negative viral COVID-19 test taken within three days of travel (or evidence of recovery from a recent COVID-19 infection).
Please let us know if you have any questions about current consular processing.
What Documents Do Carriers Require to Board Permanent Residents?
Find out what immigration documents international carriers will require to board.
The COVID-19 pandemic has complicated many aspects of the immigration process and caused delays in the processing of cases. However, it has also created issues for lawful permanent residents (LPRs) and Conditional Permanent Residents (CPRs) who have been unable to return to the U.S. as planned after a trip abroad. Many LPRs departed the U.S. close in time to the expiration of their Permanent Resident Card (PRC) possibly leaving them abroad with an expired document. Some CPRs departed the U.S. and were unable to return to the U.S. prior to filing their I-751, Petition to Remove Conditions on Residence.
Recently, Customs and Border Protection (CBP) issued guidance to airlines and other carriers regarding what is and what is not a valid immigration document for purposes of boarding a carrier bound for the U.S.
Unexpired Permanent Resident Card
If you are a lawful permanent resident in possession of a valid PRC, an airline should let you board with no further documentation. Airlines should not determine whether or not you are admissible to the U.S.
Valid Reentry Permit
If you are in possession of a valid reentry permit, an airline should allow you to board with no additional documents. You must be in possession of the original permit and a copy is not an acceptable boarding document.
Expired Permanent Resident Card - Part 1
Passengers in possession of an expired PRC may be boarded as long as the card had a 10-year validity date.
Expired Permanent Resident Card - Part 2
Some LPRs have an expired PRC that has an extension sticker on the back that extended the validity of the card for one year. As of January 2021, those stickers have been discontinued. However, PRCs with that sticker will remain valid until the expiration date. LPRs who have expired PRCs should now use their expired PRC and their original I-797 (Receipt Notice) for their I-90s (Green Card Renewal) for travel. The combination of the expired PRC along with the I-797 extends the validity of the PRC for one year.
Expired Conditional Resident Cards
Conditional Permanent Residents (CPRs) are non-citizens who were granted permanent residence for a period of two years. If you are a CPR with an expired green card, you must be in possession of the original I-797 (Receipt Notice) showing that you timely filed your I-751, Petition to Remove Conditions on Residence. If you are not in possession of both your expired card and the original receipt notice, you will not be allowed to board the airline or other vessel entering the U.S.
In the guidance from CBP, the agency wrote that airlines should only be determining whether a passenger is in possession of proper boarding documents and immigration documents, not whether they are eligible to enter the U.S. under the immigration laws. Keep in mind that being allowed onto an airplane, train, etc. does not guarantee your admission into the U.S. If you have an extended absence from the U.S. or questions about your immigration documents, you should contact an immigration attorney in advance of your intended departure.
Finally - DHS Stops Defending the "Public Charge Rule"!
Today the Department of Homeland Security (DHS) announced that the Department of Justice (“DOJ”) will no longer pursue appellate review of judicial decisions invalidating or enjoining the enforcement of the Trump Administration's 2019 “Public Charge” rule. DHS supported this decision by stating that pursuing appellate review was “neither in the public interest nor an efficient use of limited government resources.
Under former President Trump, the Department of Homeland Security announced in 2019 that it would expand the definition of "public charge" to be applied to people who could be denied immigration because of a concern that they would primarily depend on the government for their income.
Lower courts have been divided on whether the “Public Charge” rule violated federal law. The Trump administration’s DOJ aggressively appealed lower court decisions that blocked enforcement of the rule. The Supreme Court of the United States agreed in late February 2021 to consider the issue. However, they will no longer hear the case now that the DOJ notified the court that the Biden administration agreed with the local governments challenging the policy that the cases should be dismissed.
This is great news for the immigration community; however, we still need to wait for an official announcement from DHS regarding the enforcement of the rule and the use of the related Form I-944, Declaration of Self-Sufficiency. In addition, there could be third party lawsuits that may interfere with the complete elimination of the Public Charge rule.
Biden Administration Designates Venezuela for Temporary Protected Status for 18 Months
DHS designated Venezuela for Temporary Protected Status.
On March 8, 2021, the Department of Homeland Security (DHS) designated Venezuela for Temporary Protected Status (TPS). This designation lasts for 18 months, until September of 2022. By doing this DHS is recognizing the extraordinary but hopefully temporary situation for Venezuelan nationals currently residing in the U.S. DHS found that many factors prevent Venezuelan nationals from returning to Venezuela safely, such as a widespread humanitarian crisis, which has caused starvation, a growing number of non-state armed groups, repression, and a crumbling infrastructure.
The Secretary of DHS stated that, “The living conditions in Venezuela reveal a country in turmoil, unable to protect its own citizens.” In response to this crisis, DHS has designated Venezuela for TPS. If you are granted TPS, you are protected from removal for the period of your TPS and are eligible for employment authorization.
Are you eligible?
Venezuelan citizens residing in the U.S. are eligible for TPS if they meet the following requirements:
You must have continuously resided in the U.S. as of March 8, 2021;
You must file you application for TPS within the 180-day registration period;
You must establish that you are otherwise eligible for TPS. There are certain bars to eligibility which an attorney can discuss with you if you are interested in applying for TPS.
If you have questions about your eligibility for TPS, please contact us at www.fourcornerslaw.com or 503.446.3396.
Where Is My Receipt Notice?
USCIS is experiencing significant delays processing and receipting cases.
If you filed an application for an immigration benefit recently and found yourself wondering if you will ever receive a receipt notice, you are not alone. As of January 29, 2021, most lockboxes were experiencing significant delays in processing applications. A summary, broken down by lockbox, is detailed below.
Dallas Lockbox
The Dallas Lockbox has approximately 415,000 cases awaiting production of a receipt notice.
Phoenix Lockbox
The Phoenix lockbox has approximately 67,000 envelopes in the processing queue awaiting production of a receipt notice.
Chicago Lockbox
The Chicago Lockbox is providing receipt notices within approximately one week of receiving the application.
If you are filing an application, we recommend also submitting Form G-1145, E-Notification of Application/Petition Acceptance. This form allows USCIS to send you a text message and email when your case is processed. The messages will also include your receipt number. This won’t speed up the process of USCIS getting through their queue but it will alert you that your case is in process while you are waiting for your receipt notice.
The Random H-1B Lottery System Endures! (At Least for This Year's Selection Process)
The initial registration period for the fiscal year (FY) 2022 H-1B cap will open at noon Eastern on March 9 and run through noon Eastern on March 25. This means that H-1B Employers may submit their “lottery” registrations online on the USCIS website at any point during this time period.
The same rules that applied to last year’s lottery will apply to the FY2022 H-1B cap lottery. President Trump’s administration did issue a new H-1B Selection Process final rule soon before the Biden administration took office, but USCIS has delayed the implementation of the rule until at least Dec. 31, 2021. This Trump-era rule creates a new system wherein initial H-1B visas subject to the cap would be awarded first to people in the highest of four wage levels.
The lottery registration process does not require any paper filings; the registration is completed through the USCIS website. To register, the Employer, or the Employer’s attorney, uses their myUSCIS online account to register each beneficiary electronically for the selection process and pay the associated $10 H-1B registration fee. The Employer may submit registrations for multiple beneficiaries in a single online session. A confirmation number will be assigned to each registration submitted for the FY 2022 H-1B cap lottery.
If USCIS receives enough registrations by March 25, it will randomly select registrations and send selection notifications via users’ myUSCIS online accounts. USCIS intends to notify Employers by March 31.
Only Employers that have registered and have been selected in the lottery may file a H-1B cap-subject petition. An H-1B cap-subject petition may only be filed by a petitioner whose registration for that beneficiary was selected in the H-1B registration process, so it is critical that Employers properly register for the lottery system.
Four Corners’ attorneys successfully registered multiple company clients in the FY 2021 H-1B lottery and filed H-1B petitions for the selected registrants, all of which were approved by USCIS. Please reach out if you have any questions regarding the registration process.
Sample Cover Letter for Removal of Conditions (Joint I-751 Petition)
Conditional Permanent Residents who obtained status through marriage must apply to remove the conditions on their permanent resident status before the 2 years anniversary of the issuance of their legal Permanent Resident Card (“green card”). Specifically, the Conditional Permanent Resident must file a Form I-751, Petition to Remove Conditions on Residence within 90 days of the expiration of their two-year Permanent Resident Card. A late filing can have dire consequences: USCIS can terminate the Conditional Resident’s legal permanent residence and put them in proceedings before an Immigration Judge that conducts removal proceedings in the Department of Justice’s administrative immigration courts.
For I-751 petitions filed jointly, meaning the Conditional Permanent Resident and Spouse are still married and are filing the form together, frequently couples choose to file without an attorney. This is because a jointly filed petition is not complicated compared to other immigration filings.
However, in the past few years there has been an increase in Requests for Evidence (RFE) for further evidence regarding the legitimacy of the relationship. For this reason, we are providing this sample cover letter as a guide for I-751 filers. The letter contains a list of sample evidence that can be included with the petition to reduce the risk of receiving an RFE.
For Conditional Permanent Residents that are facing additional complications as they approach the two year anniversary of the issuance of their permanent resident card (such as the Conditional Permanent Resident and Spouse no longer living together, no longer being together as a married couple, or abuse within the relationship) we strongly recommend speaking to an immigration attorney to discuss specific options for each circumstance.
Click here for the Sample I-751 Cover Letter
New COVID-19 Testing Requirement For All Travelers Returning from Abroad
Learn about the Order requiring a negative COVID test prior to returning to the U.S. from a foreign country.
As of January 26, 2021, all travelers, including U.S. citizens and lawful permanent residents, will be required to get tested for COVID-19 no more than three days before entering the U.S. from a foreign country and show a negative test result. Alternatively, if a passenger has been infected with and recovered from COVID-19, that passenger must show documentation confirming a positive test result and a letter from a health care provider confirming recovery and fitness to fly. This documentation is referred to as “Documentation of Recovery.”
With limited exemptions, this new requirement applies to all passengers, regardless of immigration status, who are entering the U.S. after travel to any foreign country. If you are traveling using a negative test result taken within three days preceding your departure, the test result must read as follow: “NEGATIVE,” “SARS-CoV 2 RNA NOT DETECTED,” “SARS-CoV-2 ANTIGEN NOT DETECTED,” or “COVID-19 NOT DETECTED.” A test marked as “invalid” will not be acceptable.
If you have any questions about these new travel requirements, please contact us.
Social Security Number No Longer Required to Obtain an Oregon Driver License
As of January 1, 2021, the Oregon DMV will no longer require proof of lawful status to obtain an Oregon Driver License.
The Oregon Legislature recently passed House Bill 2015, which went into effect on January 1, 2021. This is the bill that allows Oregonians to obtain a valid license without showing proof of lawful status in the U.S. The biggest benefit of this bill is that now Oregonians will be able to obtain a license without presenting a social security number.
If you do not have a social security number, you can now apply for a license by making an appointment with the DMV and presenting the following:
Your application;
Proof of your full, legal name and identity;
Proof of your date of birth;
Proof of Oregon residency; and
A signed statement confirming that you have not been assigned a social security number.
For a complete list of required documents, please visit the Oregon DMV’s website at www.oregon.gov/odot/dmv. Some applicants have reported that the DMV is requiring a statement from the Social Security Administration that they have not been assigned a social security number. This requirement does not appear in the requirements listed on the DMV’s website, which provide that, if an applicant does not have a social security number, they must sign a statement confirming that they have not been assigned a number. However, if you would like an official statement that you have not been assigned a social security number, you can contact the social security administration. We can also provide you with a letter outlining the requirements of HB 2015 that you can present to the DMV when you apply for a license.
Keep in mind that if you obtain a license under HB 2015, this will not be a REAL ID Act compliant license. This means that beginning on October 1, 2021, you will not be able to use this license to enter a secure federal building or board a domestic flight.
If you have any questions about obtaining an Oregon license, please contact us.
Tips and Samples for Requesting Expediting Processing of Employment Authorization Applications
For years, Applicants have been experiencing unpredictable and unreasonably long wait times for their employment authorization card. This can cause major issues for the Applicant, including gaps in employment and loss of new job opportunities. For this reason, many Applicants consider asking for an expedited processing employment authorization.
It’s free to file an expedite request, but USCIS holds these requests to a high standard and can require corroborating evidence to support the need for expedite processing. Specifically, USCIS uses the following criteria when considering expedite requests:
Severe financial loss to a company or person, provided that the need for urgent action is not the result of the petitioner’s or applicant’s failure to:
File the benefit request or the expedite request in a reasonable time frame, or
Respond to any requests for additional evidence in a reasonably timely manner;
Urgent humanitarian reasons;
Compelling U.S. government interests (such as urgent cases for the Department of Defense or DHS, or other public safety or national security interests); or
Clear USCIS error.
Obviously one of the most common reasons for applying for an expedite request of an employment authorization application is severe financial loss to a person or company.
Notably, USCIS states that if the expedite request relates to an application for employment authorization, the need to obtain employment authorization alone, without any evidence of other compelling factors, does not warrant expedited treatment.
Additionally, USCIS states that all expedite requests claiming severe financial loss, regardless of the immigration benefit sought and regardless of whether the claimed loss is to a company or a person, must be documented to establish the loss and that the requestor is not able to withstand the temporary financial loss that is the natural result of normal processing times.
We are providing some sample letters for expedite requests below:
Sample Letter for Expedite Request Based on Severe Financial Loss to an Individual
Sample Letter for Expedite Request Based on Severe Financial Loss to a Company
Note that both sample letters cite specific numbers to demonstrate financial loss, and refer to enclosed corroborating documentation whenever possible.
What Biden's Upcoming Presidency Could Mean for the Future of U.S. Immigration Law and Policy
President-Elect Joe Biden has made many promises related to U.S. immigration law and policy. Changing the regulatory law through congress may be very difficult for President Biden. However, immigration is an area where presidents exercise a vast amount of discretion as President Trump has shown during his past four years in office. The Trump administration, which through more than 400 executive actions methodically dismantled and reconstructed a system based on a worldview of immigration as a security and economic threat to Americans.
Here are the main immigration promises made by President-Elect Joe Biden:
Implementing a “temporary moratorium” on deportations.
Sending Congress a road map for legalization of most of the estimated 11 million undocumented immigrants.
End Family Separation. Biden has promised to reverse the Trump Administration’s policies that separate parents from their children.
Expanding Asylum. Biden will likely increase access to asylum in the U.S., by removing the additional restrictions on anyone traveling through Mexico or Guatemala. The administration may be more understanding of asylum claims based on gang and domestic violence or LGBTQ persecution. Furthermore, under a Biden Administration, the U.S. Department of Justice will reinstate asylum protections for domestic violence and sexual violence survivors whose home governments cannot or will not protect them.
Biden has also promised to increase the number of asylum officers to review the cases of recent border crossers and keep cases with positive credible-fear findings with the Asylum Division.
Ending Prolonged detention for Children. Biden has said he will focus on alternatives to detention and non-profit case management programs for children. He has promised to codify protections to safeguard children and invest in community-based case management systems, to allow immigrants to leave detention as quickly as possible.
End Public Charge Rule: Biden has promised to end Trump’s harsh “public charge rule”, which forces foreign nationals to prove they are wealthy enough to not rely on government assistance in the future. The Public Charge rule has been the subject of much litigation.
Stop building the wall. Biden will likely discontinue the use of military funds to build Trump’s border wall. Instead, he will fund “smart border enforcement efforts”, like investments in improving screening infrastructure at U.S. ports of entry.
Reinstate DACA. Biden will likely reinstate the DACA program, which has provided young people who passed a background check and application process with temporary work permits and protection from deportation. Beyond that, Biden has said he will “explore all legal options to protect their families from inhumane separation” and ensure Dreamers are eligible for federal student aid.
Rescind Trump’s “Muslim bans”: Biden will likely rescind the bans from “Muslim” countries, as Biden’s campaign states that the bans were designed by Trump to target primarily black and brown immigrants.
Path for Citizenship for recipients of Temporary Protected Status (TPS): Biden has said he will not return TPS and Deferred Enforced Departure (DED) to countries that are unsafe, but he has not been clear on what countries he considers unsafe. Biden has further stated he will provide TPS/DED holders who have been in the country for an extended period of time and built lives in the U.S. a path to citizenship, but this would need to be accomplished through legislative immigration reform.
Scale back I.C.E. enforcement. Biden will likely scale back the targeting of individuals who have never been convicted of a serious criminal offense, will scale back workplace raids and protect sensitive locations (i.e. hospital, schools, churches) from immigration enforcement actions.
Supporting a new location-specific visa category for further economic development: Biden has said he will support a program to allow any county or municipal executive of a large or midsize county or city to petition for additional immigrant visas to support the region’s economic development strategy, subject to some kind of labor certification process.
Increasing employment-based visas as needed: Biden will likely push to increase the number of visas offered for permanent, employment-based petitions. Biden has said he will work with Congress to increase the number of visas awarded for permanent, employment-based immigration while also promoting mechanisms to temporarily reduce the number of visas during times of high U.S. unemployment. Significantly, Biden will likely try to remove the H-1B cap for recent graduates of PhD programs in STEM fields in the U.S.
Work with congress to create a path to legal status and/or citizenship for over 11 million individuals: Biden will likely push for legislation that creates a clear roadmap to legal status and citizenship for undocuamnted immigrants who register, are up-to-date on their taxes, and have passed a background check to check for criminal convictions.
While many in the immigration law community are eager for President Biden to make these changes, a recent report by the Migration Policy Institute indicates that Biden might have to proceed slowly. Notably, the administration will be primarily focused on the COVID-19 pandemic. Furthermore, any robust pro-immigration executive order will likely bring federal lawsuits from conservative groups. As the Supreme Court is currently comprised of six conservative justices, immigration opponents will likely feel comfortable filing lawsuits and appealing as needed. Lastly, if Republicans retain control of the Senate after the Georgia run-off in January 2020, it will be very difficult for President Biden to pass any actual laws related to immigration. We will need to wait and see what the new President-Elect will focus on first to keep his promises to immigrants to the United States.
How Many Biometrics Appointments is USCIS Going to Schedule?
Our clients, as well firms all over the country, have been receiving multiple biometrics notices for the same application. For example, several of our clients have attended a biometrics appointment for an I-765, Application for Employment for Authorization, commonly referred to as a work permit, and, after attending the appointment, clients receive another notice instructing them to attend a second biometrics appointment. These notices offer no explanation as to why the second notice was issued. This is annoying and burdensome for clients, particularly for clients who do not reside close to the office where the biometrics are collected.
When this happens, the first question that clients ask is, “Why did this happen?” There are many possible answers to that question. However, the most likely answer is that USCIS made a mistake and issued the second notice in error. There is also a possibility that there was a problem with the collection or readability of your fingerprints. In any case, we are advising clients to attend these appointments even though it is both annoying and burdensome for them. The main reason we advise clients to attend is to avoid a potential wrongful denial based on abandonment. It is easier to attend a technically unnecessary biometrics appointment than it is to get USCIS to rescind a wrongful denial.
If you receive a biometrics notice and you are unable to attend, you need to let your attorney know immediately, so she can reschedule the appointment. If you do not have an attorney, follow the instructions for rescheduling on the biometrics notice to reschedule your appointment.
USCIS Increases the Cost of Premium Processing; It Has Not Yet Broadened Eligibility
Premium Processing allows petitioners to receive an expedited review of their petition within 15 days of receipt. Without this premium service, employment-based petitions can take almost a year in some cases to be adjudicated. USCIS gave two business days notice that the fee of I-907, Request for Premium Processing Service is increasing from $1,400 to $2,500 effective October 19, 2020 for most eligible petitions. An exception to this significant increase is for H-2B and R-1 petitions - the fee for those petitions is increasing from $1,440 to $1,500.
USCIS previously announced that it may increase the fees and broaden the type of petitions/applications that are eligible to use premium processing. This broadening of eligibility for petitions would also include an increase in the time frame for premium processing from the current 15 days to up to 45 days, depending on filing category. This proposed expansion was especially significant as USCIS’ initial proposal included the ability to use premium processing service applications for employment authorization. Currently, employment authorization applications can take up to 7 months or longer to be processed. Additionally, applications for dependents of principal beneficiaries and applications for employment authorization could be eligible for premium processing under the proposed expansion.
However, USCIS has only announced the fee increase but has not made any further announcements regarding the implementation of the expansion of premium processing service to other petitions and applications. We will continue to update our clients when USCIS makes further announcements related to premium processing.
After Election 2020: What U.S. immigration related changes can we expect?
President Trump and Former Vice President Biden disagree on many issues, including U.S. immigration policy. The future of U.S. immigration is certainly one of the most contentious issues between the candidates. However, neither the first presidential debate nor the vice presidential debates contained any immigration-related questions. We wanted to provide a primer that summarizes what we can expect to see in the future of U.S. immigration under each candidate.
History of Trump’s actions regarding U.S. Immigration:
The Trump administration has dramatically changed the U.S. immigration landscape without having to push sweeping immigration reform through Congress. This has primarily been through technical adjustments and more than 400 executive actions on immigration, spanning everything from border and interior enforcement, to refugee resettlement and the asylum system, Deferred Action for Childhood Arrivals (DACA), the immigration courts, and vetting and visa processes.
The possible future of U.S. Immigration under a second Trump term:
In a second term, the Trump administration would likely continue its trend of executive orders and technical adjustments. He would also continue to place federal judges in positions that would uphold even the most radical of his executive orders. Trump will likely continue to target not just undocumented immigrants and asylum seekers, but legal immigrants as well.
Specially, the following changes are likely under a second Trump term:
Asylum: Trump will likely continue to narrow and eliminate asylum protections. In late 2019, the president created two pilot programs—the Prompt Asylum Claim Review (PACR) and the Humanitarian Asylum Review Process (HARP)—that fast-track asylum cases for Mexican and Central American migrants at the border. It’s likely they’ll be expanded further if Trump is reelected, even before courts decide their legality.
The administration will also likely expand upon it’s 2019 Remain in Mexico policy which forces individuals to wait in Mexico while a U.S. immigration judge decides their case. The program began as a pilot program at a single port of entry in California. Since that time, the program has already been expanded along the entire border and has affected more than 60,000 individuals.
In January 2020, the administration began sending Brazilian nationals seeking asylum to Mexico as well, signaling an expansion beyond Spanish-speaking asylum seekers. If Trump is reelected, it’s likely that the administration will further expand this program. The most likely targets of such an expansion would be individuals from India, Cameroon, the Democratic Republic of the Congo, and Eritrea.
The Wall: The Trump administration already reallocated over $10 billion in military funds to pay for construction of the wall. It is likely that Trump would expand the border wall with military funds.
Due Process: The administration will likely try to give immigration judges the ability to decide all status cases without listening to immigrants’ testimonies. This would essentially be an expansion of PACR and HARP described above. A second Trump term could give Immigration Judges the power to rule against different forms of protection, including asylum, without the foreign national having a trial.
Employed-based non-immigrant visas: Trump will likely place further limits on H-1B and L-1 visas, two of the most popular employment-based non-immigrant statuses. On June 22, 2020, Trump suspended the entry of foreign nationals on H-1B and L-1 visas until at least December 31, 2020 and he would likely expand this ban.
Furthermore, the administration would likely dramatically narrow the definition of L-1B specialized knowledge and require that employers pay appropriate wages to L-1 visa holders.
A proposed rule yet to be issued would rescind an existing regulation permitting many spouses of H-1B visa holders to work while in H-4 status. The Trump administration would also likely make it more difficult to obtain an H-1B visa by revising the definition of specialty occupation and revise the definition of employment and employer-employee relationship.
Employment-Based Green Cards: The Trump administration would likely make it more difficult for individuals waiting for employment-based green cards to remain in the United States. This could be accomplished through not allowing the extensions beyond 6 years in H-1B status and/or employer and foreign national to undergo the arduous “labor certification” process again before the foreign national can obtain a green card.
“Merit-based” System: The Trump administration has consistently used the term “merit-based” immigration when describing its plan to limit family-based immigration in favor of highly educated and skilled immigration. In fact, Trump’s advisor Jared Kushner drafted a “merit-based” immigration plan during Trump’s first term that was never introduced in Congress. It is likely that the Trump administration would try to introduce this new plan to congress and push it through in his second term.
History of Biden’s actions regarding U.S. Immigration:
Although Biden is now campaigning on a relatively pro-immigrant platform, his record related to immigration is complicated. The Obama administration, with Biden serving as Vice President, deported more than 3 million foreign nationals. Biden has supported policies that funded border militarization and deportation, while overall supporting employment-based and family-based legal immigration.
The possible future of U.S. Immigration under the Biden administration:
Presidential hopeful Joe Biden has made many promises regarding the immigration system. Specifically, Biden has promised to:
End Family Separation. Biden has promised to reverse the Trump Administration’s policies that separate parents from their children.
Expanding Asylum. Biden will likely increase access to asylum in the U.S., by removing the additional restrictions on anyone traveling through Mexico or Guatemala. The administration may be more understanding of asylum claims based on gang and domestic violence or LGBTQ persecution. Furthermore, under a Biden Administration, the U.S. Department of Justice will reinstate asylum protections for domestic violence and sexual violence survivors whose home governments cannot or will not protect them.
Biden has also promised to increase the number of asylum officers to
review the cases of recent border crossers and keep cases with positive credible-fear findings with the Asylum Division.
Ending Prolonged detention for Children. Biden has said he will focus on alternatives to detention and non-profit case management programs for children. He has promised to codify protections to safeguard children and invest in community-based case management systems, to allow immigrants to leave detention as quickly as possible.
End Public Charge Rule: Biden has promised to end Trump’s harsh “public charge rule”, which forces foreign nationals to prove they are wealthy enough to not rely on government assistance in the future. The Public Charge rule has been the subject of much litigation.
Stop building the wall. Biden will likely discontinue the use of military funds to build Trump’s border wall. Instead, he will fund “smart border enforcement efforts”, like investments in improving screening infrastructure at U.S. ports of entry.
Reinstate DACA. Biden will likely reinstate the DACA program, which has provided young people who passed a background check and application process with temporary work permits and protection from deportation. Beyond that, Biden has said he will “explore all legal options to protect their families from inhumane separation” and ensure Dreamers are eligible for federal student aid.
Rescind Trump’s “Muslim bans”: Biden will likely rescind the bans from “Muslim” countries, as Biden’s campaign states that the bans were designed by Trump to target primarily black and brown immigrants.
Path for Citizenship for recipients of Temporary Protected Status (TPS): Biden has said he will not return TPS and Deferred Enforced Departure (DED) to countries that are unsafe, but he has not been clear on what countries he considers unsafe. Biden has further stated he will provide TPS/DED holders who have been in the country for an extended period of time and built lives in the U.S. a path to citizenship, but this would need to be accomplished through legislative immigration reform.
Scale back I.C.E. enforcement. Biden will likely scale back the targeting of individuals who have never been convicted of a serious criminal offense, will scale back workplace raids and protect sensitive locations (i.e. hospital, schools, churches) from immigration enforcement actions.
Supporting a new location-specific visa category for further economic development: Biden has said he will support a program to allow any county or municipal executive of a large or midsize county or city to petition for additional immigrant visas to support the region’s economic development strategy, subject to some kind of labor certification process.
Increasing employment-based visas as needed: Biden will likely push to increase the number of visas offered for permanent, employment-based petitions. Biden has said he will work with Congress to increase the number of visas awarded for permanent, employment-based immigration while also promoting mechanisms to temporarily reduce the number of visas during times of high U.S. unemployment. Significantly, Biden will likely try to remove the H-1B cap for recent graduates of PhD programs in STEM fields in the U.S.
Work with congress to create a path to legal status and/or citizenship for over 11 million individuals: Biden will likely push for legislation that creates a clear roadmap to legal status and citizenship for undocuamnted immigrants who register, are up-to-date on their taxes, and have passed a background check to check for criminal convictions.
Proposed Affidavit of Support Rule Places Heavy Burden on Sponsors
On October 3, 2020, USCIS announced its intention to amend the rules relating to the I-864, Affidavit of Support. This new rule would make it more difficult for petitioning sponsors to establish they meet the requirements to serve as what is commonly referred to as a “financial sponsor.” It will also make it more difficult for petitioning sponsors to locate eligible joint sponsors. Under the current rules, a financial sponsor must meet meet the following requirements and submit the following documents:
The sponsor’s income must be at or above 125% of the federal poverty guidelines;
The sponsor must submit their Federal Form 1040 (Tax Return), along with W-2s and 1099s, for the most recent tax year and disclose their adjusted gross income from the prior two tax years;
Pay stubs from the most recent six months or bank accounts showing income from the most six months if self-employed; and
Proof of status in the U.S.
The new proposed rules will impose heavy documentary requirements on sponsors. Under the new rule, sponsors would have to submit extensive documentation, including credit reports, credit scores, tax returns for three years, and extensive banking records. New requirements include, but are not limited to, the following:
Requiring a joint sponsor if the petitioning sponsor received any kind of means tested benefit with the 36 months preceding the application. This would apply even if the petitioning sponsor now makes well over the federal poverty guidelines. For example, if someone received means tested benefits three years before petitioning for a relative but then had two steady years of income well above the federal poverty guidelines, the petitioner would still need a joint sponsor. In this scenario, a joint sponsor would be required even if a petitioning sponsor made over one million dollars a year for the two years preceding the application;
All sponsors would be required to submit a full three years of tax returns or tax transcripts and W-2s and 1099s;
The new rule would limit who can serve as a “household member” for purposes of establishing total household income. DHS is proposing limiting who can be a household member for purposes of total income to spouses of sponsors and, in certain circumstances, the intending immigration. For example, if a mother petitioned for a child and the the petitioning mother and sponsored child also live with an adult sibling, the sibling would no longer be able to serve as a household member for purposes of total income;
Requiring sponsors and household members to submit credit scores and reports;
Require banking information for sponsors and household members; and
DHS would like to lift the requirement that USCIS would need to receive a subpoena from an outside agency before providing an outside agency with a certified copy of the Affidavit of Support. Under the new rule, DHS could provide an outside agency with a full copy of the affidavit and all supporting documents upon a “formal request.”
In the proposed rule, the government claims that, currently very little is currently required for a sponsor or joint sponsor to show their income is sufficient to sponsor an immigrant. However, as you can see by the requirements listed above in the first enumerated list, this is not correct. Under the current rules, a sponsor must submit a complete copy of their most recent Federal Form 1040 and all supporting schedules, all W-2s and W-9s for the most recent tax year, and six months worth of pay stubs. In situations where applicants need a joint sponsor, the primary complaint we hear is that the potential joint sponsor does not want to disclose so much financial information to the government. By imposing requirements that sponsors submit banking records, credit reports, etc., the administration will make it even more difficult to find a qualified joint sponsor.
This rule appears to be another attempt to quell lawful immigration without going through Congress for comprehensive immigration reform. If you have questions about how these new rules could impact your case, please contact us.
Do You Qualify for an Emergency Appointment at the Consulate?
The U.S. consulates were, and some still are, closed due to the COVID-19 pandemic. Some consulates have resumed processing for certain types of visas and emergency or humanitarian appointments. Each consulate is doing things a little bit differently to maintain safety as they begin reopening, so this article is designed to give you general information not specific legal advice.
Generally, to get an emergency appointment, you must show that your case fits into one of the following categories:
Death of an immediate relative or grave illness or serious accident of an immediate relative who is located in the U.S.;
Urgent medical treatment for the applicant or their minor child;
A student or exchange visitor seeking to enter the U.S. in F, J, or M status with a program start date that is before the first available visa date;
An unexpected business trip that will occur within 10 days after the first available visa appointment; or
An unexpected visit that is of significant political, journalistic, cultural, sporting, or economic importance that will occur within 10 days after the first available visa date.
For the category of death or grave illness, you must show that person who passed away or suffers from the illness is an immediate relative. For purposes of humanitarian appointments, that means parent, child, sibling, grandparent, or grandchild. For example, if you are seeking a humanitarian K-1 visa due to your fiancee’s parent being gravely ill, that would not qualify because the person who suffers from the illness is not your immediate relative. Also, if you are seeking an expedited appointment for business reasons, you have to show that the event you need to attend was unexpected, which means the consulate will not expedite your visa for foreseeable events for which you did not submit a timely application.
Emergency or humanitarian appointments are difficult to obtain and the consulate will not grant you an emergency appointment for anything less than the above-written grounds. If you do get an emergency appointment, it is also important to make sure you are navigating the various travel bans that are currently in place correctly. If you are in a position where you live in a country that does not have a U.S. consulate, you need to be certain that the consulate you are using for processing is scheduling appointments for non-residents. For example, as today, the consulate in Turkey, which services many clients from Iran, is not scheduling appointments for applicants who are not residents of Turkey.
COVID-19 has caused lengthy, frustrating, and painful separations among family members. Many applicants expected to be united or reunited with their loved ones by now. If you have questions about emergency appointments, please contact us for a consultation.
Breaking! USCIS Fee Increase Stopped (For now)
A federal judge in Northern California has blocked the Trump administration from increase fees for immigrants and asylum-seekers. The fees were set to increase on October 2, 2020. Our firm will be following the news regarding this decision closely and will continue to update our clients and the immigrant community accordingly.
The October 2020 Visa Bulletin Update - Good News!
The visa bulletin was late this month but it finally arrived last week bearing some good news. Notably, the priority dates advanced significantly for most employment-based preference categories.
The visa bulletin can be tricky to read as it includes both Dates for Filing Visa Applications chart and an Application Final Action Dates chart. USCIS makes its decision regarding which of these charts it will follow on a monthly basis. The Dates for Filing chart indicates when exactly intending immigrants may file their applications for adjustments of status or immigrant visas, and the Final Action chart indicates when adjustment of status applications or immigrant visa applications may be approved and or green cards may be issued from within the United States.
For the month of October 2020, USCIS is following the “Dates for Filing” chart for Employment-Based Visa Applications for employment-based (EB) filings for adjustment of status from within the United States. The EB Dates for Filing updates are as follows:
#1 - EB-1 First Preference (includes Extraordinary Ability, Outstanding Professors and Researchers, & Certain Multinational manager or executives):
Both China and India significantly advanced to September 1, 2020. All other countries remain current.
#2 - EB-2 Second Preference (includes Advanced Degree, Exceptional Ability, National Interest Waiver:
Dates for India advanced to May 15, 2011 (a 20 month change). Dates for China advanced to October 1, 2016 (a 2 month change). All other countries remain current.
#3 - EB-3 Third Preference (includes Skilled Workers, Professionals, Unskilled Workers.
Dates for India advanced to January 1, 2015 (a 5 year change). Dates for China advanced to June 1, 2018 (a 13 month change). For “Other Workers”, China’s Dates have not changed. All other countries changed to current.
These changes are significant as they not only will allow many more foreign nationals to obtain green cards based on their EB petitions, these foreign nationals will be able to obtain an important “2-in-1” permit card while their adjustment of status application is pending: the combined EAD (Employment Authorization Document) and Advance Parole document. This is a significant benefit and safety net for applicants - especially as USCIS is making it increasingly difficult to extend existing nonimmigrant visa status and H-4 applicants are experiencing very consequential delays in adjudication.
Foreign nationals should keep in mind that these significant advancements in dates for Indian and Chinese nationals will likely significantly increase the volume of adjustment applications received by the USCIS. This may lead to a retrogression of filing dates in November 2020, meaning foreign nationals that are able to file in October 2020 may not be able to file next month. Foreign Nationals that are able to file under the October 2020 visa bulletin should file as soon as possible during this limited filing window.
Court of Appeals Clears Path for Trump Administration to End TPS
Temporary Protected Status, or “TPS,” has long been targeted by the Trump Administration as a program it would like to terminate. TPS is available to nationals of certain countries that the Department of Homeland Security has designated as a country to which it is not safe to return or which cannot handle the return of their citizens. In 2018, the government attempted to end TPS for nationals of Sudan, Nicaragua, Haiti, and El Salvador. The government also attempted to end TPS for Nepal and Honduras. A court prevented the government from ending TPS for Sudan, Nicaragua, Haiti, and El Salvador. After that ruling came down, the government also paused its plans to end TPS for Nepal and Honduras while they appealed the court’s decision.
The government appealed the order causing them to postpone ending TPS for the above-mentioned countries to the Ninth Circuit Court of Appeals. Unfortunately, the Ninth Circuit held that even though there was evidence that Trump displayed racial animus toward non-white, non-European immigrants, there was no evidence that he sought to influence phasing out TPS. Therefore, barring Supreme Court intervention, the administration is now free to proceed with its plans to phase out TPS.
The government has not yet issued guidance regarding how it plans to implement phasing out TPS. However, you can check this page on the USCIS website for updates. If you have TPS and are curious how this will impact you, please call or email us.
Work Permits and Travel Permits No Longer Bundled with Adjustment of Status Applications
As you know from our prior article, USCIS is raising their fees on October 3, 2020. For more information on the fee increase, please click here. What many applicants do not know is that this will have a severe impact on many adjustment of status applications, also known as I-485s. Prior to the fee increase, adjustment applicants were allowed to file applications for work and travel authorization at no extra cost. This amounted to a savings of almost $1000 in filing fees. Also, you could renew your work and travel permits with no filing fees as long as your green card application was pending.
This is changing on October 3, 2020. As of October 3, 2020, USCIS will require filings fees for work permit and travel applications, even if they are filed with an I-485. Applicants who wish to apply for work and travel permits will now have to pay an additional $550 for a work permit and an additional $590 for a travel permit.
Helpful Tips: If you are currently eligible to file an adjustment of status application, we highly recommend doing so before October 3, 2020. As long as your application is postmarked by October 2, 2020, you will not be subject to the fee increase. If you have a work or travel permit that is expiring within 120 days, you should consider filing your renewal applications before October 3, 2020. Again, as long as your application is postmarked by or before October 2, 2020, you will not be subject to the fee increase.
Have Questions? Feel free to call or email us!