March 2020 Newsletter

• New Public Charge Rules Go Into Effect for Most Green Card Applicants and Others
• H-1B Registration for Cap-Subject Petitions Opens March 1
• Coronavirus’ Impact on Individuals Seeking Entry into the United States After Travel in China and on U.S. Consular Processing in China
• Permanent Injunction Issued to Enjoin Enforcement of F, M, J Nonimmigrant “Unlawful Presence” Policy Memo
• Expanded Travel Ban 3.0: Who is Covered?
• Consular Computer Problems with CEAC and Delays at National Visa Center
• Interview Waivers for Certain NIV Applicants
• USCIS Begins Accepting Green Card Applications under Liberian Refugee Immigration Fairness
• News in Brief: “Birth Tourism:” New Rule in Effect; NY Residents Ineligible for Trusted Traveler Programs; E-1/E-2 Status Terminated for Iranians; TPS Extended for Yemen
• New Public Charge Rules Go Into Effect for Most Green Card Applicants and Others

Beginning on February 24, 2020, DHS and the Department of State (DOS) began implementation of a new standard of whether an applicant for admission to the U.S. or for adjustment of status is likely to become a “public charge” under the inadmissibility ground in the immigration laws. “Public charge” is not defined in the INA, but since 1999, the term “public charge,” as written in the Federal Register refers to a person who is or is likely to become “primarily dependent” on “public cash assistance for income maintenance” or “institutionalized for long-term care at government expense.” Most applicants for adjustment of status will be required to complete a lengthy and burdensome 18-page new Declaration of Self-Sufficiency, Form I-944, with supporting documentary evidence.  Immigrant visa applicants at U.S. consulates will be required to complete a shorter “Public Charge Questionnaire,” Form DS-5540.

Adjustment of Status by USCIS

Under the new rule, a public charge inadmissibility determination will be made by USCIS by using a totality of the circumstances approach that weighs the foreign national’s age, health, family status, education and skills, assets, resources, and financial status. Form I-944 not only requires information about these attributes, but in order to rely on them as positive factors, documentary evidence is required. For example, not only must health insurance information be provided but also a copy of the health insurance card as well as the health insurance policy. For foreign graduates, in order to get credit for a foreign master’s degree, that degree must be evaluated to be the equivalent of U.S. degree. For assets such as property, formal appraisals are requested. (It is unclear if, for example, USCIS will ultimately accept instead a state tax assessment as proof of the property’s value). Credit scores from one of the three official credit companies (Equifax, Experian, and TransUnion) is also required. To rely on bank account assets, 12 months of bank statements for each account must be provided. While gathering this kind of information is not necessarily difficult, it is time-consuming, burdensome, and is likely to make the process more expensive.

USCIS will be taking into account a broad range of positive and negative factors, and some factors will be more heavily weighed than others but further guidance has not been provided. The four heavily weighted negative factors include (1) having received public benefits after 02/24/2020; (2) the inability to demonstrate current employment, recent employment history, or a reasonable prospect of future employment; (3) having been diagnosed with a medical condition that is likely to require extensive medical treatment or institutionalization or that will interfere with the immigrant’s ability to provide for themselves, attend school, or work; and the immigrant is uninsured and has neither the prospect of obtaining private health insurance, nor the financial resources to pay for reasonably foreseeable medical costs; and (4) the immigrant was previously found inadmissible or deportable on public charge grounds.  The three heavily weighted positive factors are (1) that the immigrant’s household has income, assets, or resources; (2) that the immigrant is authorized to work and is currently employed; and (3) that the immigrant has private health insurance. In the instance that a public charge determination is made, the person can request a public charge bond issued by USCIS.

Generally, the rule applies to most adjustment applicants – even those who are not required to submit with their application, Form I-864, Affidavit of Support.  Per the statute, the rule does not apply to refugees, asylees, Afghans and Iraqis with special immigrant visas, and certain nonimmigrant trafficking and crime victims, individuals applying under the Violence Against Women Act, special immigrant juveniles, or to those who DHS has granted a waiver of public charge inadmissibility.

The public charge determination also impacts a category of other foreign nationals seeking admission who could be deemed “inadmissible” including: nonimmigrants being inspected for admission to the United States at a port of entry (POE) or seeking a change or extension of status; persons with an immigrant visa at a POE; green card  holders returning to the United States after six months or more; and persons who are seeking admission after entering without inspection.

Consular Processed Visas

For those applying for immigrant visas at U.S. consulates, the DOS had already published revised sections of its Foreign Affairs Manual (FAM) that govern “public charge” for those individuals wishing to immigrate to the United States. The FAM provides instructions for consular officers in U.S. embassies and consulates abroad to use to make decisions about whether to grant non-U.S. citizens permission to enter the U.S.  In addition to the changes made by DOS in the Fall, now it is also requiring completion of a Public Charge Questionnaire, DS-5540, by intending immigrants.

DOS had already required that factors (age, health, income, education, family situation, etc.) be considered in the public charge test. And, while the affidavit of support is a positive factor in the totality of the circumstances test is not enough on its own to protect an individual from a determination that the person is likely to become a public charge. In addition, changes in evaluating a sponsor’s affidavit of support and the use of noncash benefits by applicants, sponsors, and family members suggests that the sponsor’s use of benefits could be considered.

Also, applicants will need to provide proof of medical insurance or other ability to pay medical expenses in the U.S. during their visa interview. Applicants will need to demonstrate that they have job skills, provide information about their job history, and explain any periods of unemployment or job changes. They may also need to provide information about their plans for employment once they immigrate to the U.S., or whether they have a job offer.

Unlike Form I-944, most supporting evidence is not required with the DS-5540 although it may be prudent to include such documentation.

Foreign nationals who go through consular processing in their home country before entering the U.S. on nonimmigrant visas may also be impacted, although the conditions for obtaining a nonimmigrant visa are normally sufficient to overcome the public charge exclusion, absent evidence to the contrary.

Bottomline:  USCIS and DOS just made it harder for foreign nationals to obtain permanent residency, and the new requirements will make it difficult for people of more modest means to qualify.

H-1B Registration for Cap-Subject Petitions Opens March 1

Beginning on March 1, employer-petitioners will be able to begin the H-1B cap-subject petition registration process for FY2021. Such employers must electronically register and pay the associated $10 H-1B registration fee per beneficiary before filing a petition for H-1B visa status for a beneficiary. If approved, the visa would become available on October 1, 2020. The registration period is from March 1 to March 20, 2020. USCIS has announced that the expected lottery will be held no later than March 31, and petitioners will be advised if they have been selected by email by April 1. After the petitioner is notified that the registration has been selected, he or she will have at least 90 days to submit a completed H-1B petition with supporting documentation.

Under the new registration process, employer-petitioners must set up a MyUSCIS portal account that an attorney can later access in order to register the H1B beneficiary. While employers can set up their account now, they cannot enter their H-1B required data until March 1. Because each registration is beneficiary-specific, basic information about the beneficiary is also required.

USCIS will not consider a cap-subject petition properly filed unless it is based on a valid registration selection for the same beneficiary and in the appropriate fiscal year. Although petitioner-employers can register multiple foreign nationals during a single online submission, duplicate registrations for the same beneficiary in the same fiscal year will be denied during the registration process.  Any H1B registration that was submitted by March 20, 2020 but was not selected or denied will be kept under the 2021 H-1B registration account for the employer for fiscal year 2021 in the event that not all the H-1B visas are used up.

Coronavirus’s Impact on Individuals Seeking Entry into the United States After Travel in China and on U.S. Consular Processing in China

 In light of the outbreak of the 2019 Novel Coronavirus, the Trump Administration has taken several measures to control and limit the entry of individuals potentially exposed the virus in China from entering the United States.

On January 31, President Trump issued a Proclamation suspending entry of certain immigrants and nonimmigrants who were physically present within China, excluding Hong Kong and Macau, 14 days prior to their entry or attempted entry into the United States. The ban became effective on February 2, 2020.

Further, U.S. citizens who are traveling from the Hubei province in China within 14 days of arriving to the United States will be subject to up to 14-day mandatory quarantine. Returning U.S. citizens who had visited other parts of China, outside of Hong Kong, Macau, and the Hubei province, will be subject to monitoring at certain ports of entry, and potentially self-quarantine at home. Those considered exempt under the Proclamation will likely also be subject to the same limitations and protocols as U.S. citizens.

The Proclamation clarifies that it does not impact an individual’s eligibility for asylum, withholding of removal, or protection under the U.N. Convention Against Torture. In addition to U.S. citizens, the Proclamation does not apply to the following individuals:

• Lawful permanent residents (LPRs) of the United States;
• Spouses of a U.S. citizen or LPR;
• Parents or legal guardians of a U.S. citizen or LPR, provided that the U.S. citizen or LPR is unmarried and under the age of 21;
• Siblings of a U.S. citizen or LPR, provided that both are unmarried and under the age of 21;
• Children, foster children, or wards of a U.S. citizen or LPR, or prospective adoptees seeking to enter the United States pursuant to the IR-4 or IH-4 visa classifications;
• Foreign nationals traveling to the United States at the invitation of the U.S. government for a purpose related to containment or mitigation of the virus;
• Nonimmigrants under INA §101(a)(15)(C) or (D), as a crewmember or any alien otherwise traveling to the United States as air or sea crew;
• Nonimmigrants on an A-1, A-2, C-2, C-3 (as a foreign government official or immediate family member of an official), G-1, G-2, G-3, G-4, NATO-1 through NATO-4, or NATO-6 visa;
• Foreign nationals whose entry would not pose a significant risk of introducing, transmitting, or spreading the virus, as determined by the CDC Director, or his designee;
• Foreign nationals whose entry would further important U.S. law enforcement objectives, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees based on a recommendation of the Attorney General or his designee; or
• Foreign nationals whose entry would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their designees.

 Meanwhile, DHS has directed all inbound flights with individuals who have been in China to 11 major U.S. airports, where health protocols have been implemented to account for treatment and handling of individuals who might have contracted the virus.

U.S. Consular Processing in China Suspended

As of February 10, 2020, regular visa services at the U.S Embassy in Beijing and the U.S. Consulates General in Chengdu, Guangzhou, Shanghai and Shenyang are suspended.  Due to the ongoing situation relating to the novel coronavirus, the U.S. Embassy and Consulates have very limited staffing and may be unable to respond to requests regarding regular visa services.  Limited emergency appointments may be available.

Permanent Injunction Issued to Enjoin Enforcement of F, M, J Nonimmigrant “Unlawful Presence” Policy Memo

In early February, a nationwide permanent injunction was granted by a federal district court, enjoining USCIS from enforcing its August 9, 2018, Policy Memorandum entitled “Accrual of Unlawful Presence and F, J and M Nonimmigrants.” The decision is important for many reasons:  First, the decision saves thousands of F, J, and M nonimmigrants from suffering three- and 10-year bars to admission to the United States based on technical, often-unknowing violations of status that may have happened many years ago. The decision upholds the interpretation of “unlawful presence” for nonimmigrants in D/S status that no unlawful presence accrues until the D/S nonimmigrant has received formal notification that the U.S. government believes he or she has violated status, at which point the nonimmigrant has 180 days to leave the country to avoid incurring a three-year bar. Second, the court expressly agreed that the definition of unlawful presence in the immigration statute that requires the “expiration of a period of stay authorized by the Attorney General” cannot mean a violation of status and must mean the end of a specific period of time.

The decision also is important because it rejected USCIS’s attempt to make a very substantive change of policy and legal interpretation by issuing a policy memo without engaging in notice and comment rulemaking.

The government has 60 days to appeal this decision. If it does not appeal, the decision, including the permanent nationwide injunction, is final. Hopefully, the government will decide that an appeal is not wise, either because of a realization that issuing the Policy Memorandum was ill-advised or because it concludes that its chances of overturning the decision might be legally tenuous.

The case makes clear the importance of institutions willing to step up as plaintiffs in litigation challenging improper and unlawful government actions. If the three universities in this case had not been willing to be plaintiffs in this litigation, the enjoined policy would be in force today. As a result, many thousands of students and scholars would be barred from the United States or would be afraid to leave the U.S. for fear of being unable to return.

Expanded Travel Ban 3.0: Who is Covered?

On February 21, President Trump’s newest Presidential Proclamation went into effect expanding the Travel Ban 3.0 to include certain foreign nationals of the following six countries:

• Eritrea: All immigrants, except Special Immigrants who have provided assistance to the U.S. government.
• Kyrgyzstan: All immigrants, except Special Immigrants who have provided assistance to the U.S. government.
• Myanmar (Burma): All immigrants, except Special Immigrants who have provided assistance to the U.S. government.
• Nigeria: All immigrants, except Special Immigrants who have provided assistance to the U.S. government.
• Sudan: Immigrants under the Diversity Lottery program
• Tanzania: Immigrants under the Diversity Lottery program

According to DHS, these additions were based on its assessment of updated security criteria established after the first iteration of the travel ban. Restrictions have only been placed on those seeking immigrant visas from the newly added countries. Individuals from these countries seeking nonimmigrant visas should not be restricted.

Unless an exemption applies or the individual is eligible for a waiver, the travel restrictions apply to foreign nationals of the designated countries who:

• are outside the U.S. on the applicable effective date;
• do not have a valid visa on the applicable effective date; and
• do not qualify for a reinstated visa or other travel document that was revoked under the earlier Travel Ban.

The travel restrictions in the proclamation do not apply to:

• lawful permanent residents;
• foreign nationals who are admitted to or paroled into the U.S. on or after the applicable effective date;
• foreign nationals who have a document other than a visa (g., transportation letter, boarding foil, advance parole document) valid on the applicable effective date or issued on any date thereafter;
• Dual nationals of a designated country who are traveling on a passport issued by a nondesignated country;
• Foreign nationals traveling on a diplomatic visas, NATO visas, C-2/U.N. visas, or G-1, G2, G-3, or G-4 visa;
• Foreign nationals who have been granted asylum in the U.S., refugees who have been admitted to the U.S.; or individuals who have been granted withholding of removal, advance parole, or protection under the Convention Against Torture.

A waiver may be granted if a foreign national demonstrates to the consular officer’s or CBP official’s satisfaction that: (a) denying entry would cause the foreign national undue hardship; (b) entry would not pose a threat to the national security or public safety of the U.S.; and (c) entry would be in the national interest.

Consular Computer Problems and Delays at National Visa Center

It’s not just you! Foreign nationals who consular process their immigrant visas applications at U.S. consulates abroad and thus avail themselves of the State Department’s system for submitting documentation have been experiencing a myriad of technical problems and interview scheduling delays. First, applicants are experiencing problems in paying their visa fee invoices. Fees that seem to be “in process” and then “complete” have later been “rejected.” Completing and submitting the electronic visa application, DS-260, is another frustration. The CEAC (Consular Electronic Application Center) system repeatedly times out and does not save data. Applications also appear to be stalling between the electronic submission of the documents and their acceptance or rejection by the National Visa Center (NVC). To make matters worse, immigrant visa interviews seem to be delayed for several months after a complete set of supporting documents have been submitted to the NVC. Although applications appear to be documentarily qualified, applicants continue to wait for months before an interview is scheduled at a consular post. We sure hope the State Department can fix these problems soon.

Interview Waivers for Certain NIV Applicants

Do you know that many U.S. consulates provide an option for the NIV interview to be waived if certain criteria are met? This option is important to consider when, increasingly, NIV applicants are subject to long wait times either for scheduling an NIV interview or waiting for visa issuance post interview. According to the immigration laws, NIV interviews are required unless the applicant is younger than 14 or older than 79. However, there are specific criteria by which one could qualify for an interview waiver.

The following are the criteria applied in most interview waiver cases: (1) the applicant must be applying for the same visa classification of their most recent visa; (2) the visa category does not fall under A, C, G, or NATO; (3) the most recent visa did not expire more than 12 months ago; (4) the applicant is applying in their consular district of their normal residence/nationality; (5) the applicant is not a security risk; (6) the most recent visa was issued in the same country where interview waiver is requested; (7) the passport with the visa was not stolen or canceled; (8) the visa was issued after 2008; (8) the visa was issued after the person’s 14th birthday; (9) the visa was not annotated “clearance reviewed” or annotated “clearance received” or “department authorization”; and (10) the nonimmigrant applicant was not refused a visa after the most recent visa issuance.

F-1 visa applicants can only qualify if they are continuing as a student at the same school for which their previous visa was issued. Similarly, a J-1 visa applicant may have the interview waived if their DS-2019 was issued by the same institution as their previous visa. In terms of timing of filing the NIV under the waiver process, it is important to note that the adjudication of the interview waiver application will be considered as long as the NIV application is filed under the waiver procedures within 12 months of the expiration date of the most recent visa, even if the actual adjudication takes place outside that 12-month window.

U.S. consulates may have their own specific requirements. Therefore, it is best to check the specific requirements on the website of the U.S. consulate of their residence. Keep in mind, the applicant could still be required to report for an interview at the discretion of the consular officer.

In most cases, the visa will be issued within one to two weeks, and the visa and passport will be delivered to the applicant at the pick-up location selected.

USCIS Begins Accepting Green Card Applications under Liberian Refugee Immigration Fairness

USCIS will begin accepting applications to adjust to LPR status from certain Liberian nationals under Section 7611 of the National Defense Authorization Act for FY 2020, Liberian Refugee Immigration Fairness (LRIF), signed into law on December 20, 2019. To be eligible for permanent residence under LRIF, a Liberian national must have been continuously physically present in the United States from 11/20/2014 to the date they properly file an application for adjustment of status. USCIS will accept properly filed applications until 12/20/2020, one year from the enactment of the LRIF. Applicants must be otherwise eligible to receive an immigrant visa and be admissible to the United States.

News in Brief

The following additional items may be of interest to our readers:

“Birth Tourism” New Rule in Effect: In late January, DOS issued a final rule establishing a rebuttable presumption that a B visa applicant who a consular officer believes will give birth during her stay in the U.S. is traveling for the primary purpose of obtaining U.S. citizenship for the child and thus should be denied the visa.

N.Y. Residents Ineligible for Certain CBP Trusted Traveler Programs: In response to New York State implementing the Driver’s License Access and Privacy Act, DHS announced that New York residents will no longer be eligible to apply for or renew their enrollment in certain Trusted Traveler Programs like Global Entry, NEXUS, SENTRI, and FAST. The N.Y. law prohibits the Department of Motor Vehicles from sharing information with DHS.

E-1 and E-2 Nonimmigrant Status for Iranian Nationals Terminated: In a January 23, 2020 notice, USCIS advises that nationals of Iran and their dependents are no longer eligible to change to E-1 or E-2 nonimmigrant status or to extend their stay in one of these statuses, due to the termination of the1955 Treaty of Amity, Economic Relations, and Consular Rights between the United States and Iran.

TPS Extended for Yemen: DHS extended the Temporary Protected Status (TPS) designation for Yemen for 18 months through September 3, 2021.