October Visa Bulletin

Each month, the U.S. Department of State publishes the Visa Bulletin, listing all "preference" categories and states whether or not a backlog exists for each one. The October 2019 visa bulletin marks the start of the new fiscal year.  A two-chart system, “Final Action Dates” and “Dates for Filing Applications,” in the Visa Bulletin was introduced back in 2015 but rarely has the “Dates for Filing Applications” chart been permitted for Employment Based filings, until this October. 

This month however, Employment Based petitions should use the Dates of Filing chart in establishing eligibility to file the I-485 Adjustment of Status petitions. Since last month’s retrogression of all preference categories, there has been significant advancement in many, but not all, preference categories. This means that those who filed the Form I-140 on or before the date given in the Visa Bulletin are able to file for or be granted permanent resident status.

While the EB-1 preference category for all countries other than China and India remains backlogged, there was considerable advancement moving to July 1, 2019, meaning that those applicants whose I-140 was filed on or before that date are able to file Form I-485 to become permanent residents, or if their I-485 applications are already pending, to be approved. China and India remain backlogged to September 1, 2017 and March 15, 2017, respectively.

The EB-2 preference category has returned to being “current” for all countries other than China and India which means that individuals in these categories may immediately file I-485 applications. China and India remain backlogged to August 1, 2016 and July 1, 2009, respectively. 

Because of the difference in dates on the two charts, I-485 applications filed now may be pending for lengthy periods of time; however, the opportunity to file the I-485 applications is available now.

If you have questions about planning, please feel free to reach out and schedule a consultation with one of the attorneys (info@iandoli.com).

New Expedited Removal Policy

Created in 1996 under President Bill Clinton, expedited removal is a process by which low-level immigration officers can quickly deport certain noncitizens who are undocumented or have committed fraud or misrepresentation. Since 2004, immigration officials have used expedited removal to deport individuals who arrive at our border, as well as individuals who entered without authorization if they are apprehended within two weeks of arrival and within 100 miles of the Canadian or Mexican border.

On July 23, 2019, Department of Homeland Security (DHS) announced that it is significantly expanding expedited removal, starting “on or about” September 1, 2019, to apply throughout the United States to individuals who have been in the United States for less than two years. The July 23 announcement expands the use of expedited removal to cover the whole country and to apply to noncitizens who have been in the United States for under two years. Thus, DHS will now apply expedited removal to all noncitizens who are inadmissible under relevant regulations and who have not been continuously physically present in the United States for at least two years, no matter where in the country Immigration and Customs Enforcement (ICE) or Customs and Border Protection (CBP) encounters them. This significant expansion will mean that DHS officers in the interior of the country will be able to bypass immigration court and put noncitizens directly on a fast track to removal.

In addition to the implementation date, the ICE guidance has several important details on how expanded expedited removal will be implemented:

• Limited Anticipated Use of Expedite Removal:
  The memo notes that ICE anticipates that the expansion of expedited removal will be "primarily used by ICE in the Criminal Alien Program and worksite enforcement contexts."

• Individuals Must Be Given Opportunity to Provide Evidence:
  The memo clearly states that individuals "shall" be given a "brief but reasonable opportunity" to obtain evidence of their physical presence or communicate with someone to obtain such evidence if they are not able to provide that evidence at the time of their encounter with ICE.

• Affirmative Burden:
  The memo states that the noncitizen "bears the affirmative burden to show to the satisfaction of the encountering immigration officer that he or she has been physically present in the United States continuously for the two-year period immediately preceding the date of the determination of inadmissibility by providing evidence establishing the place, date, and manner of entry into the United States and continuity of presence since that time." Note that the guidance instructs officers that the noncitizen has the burden to establish continuous presence by providing evidence on the circumstances of entry and the continuity of presence since that time. The relevant statute, however, dictates that a person is not subject to expedited removal if they were admitted to the United States or can establish physical presence for at least two years.

• Physical Presence Records:
  The memo provides a non-exhaustive list of evidence that can be used to show the necessary physical presence requirement, including but not limited to: bankbooks, leases, deeds, licenses, bills, receipts, letters, birth records, church records, school records, employment records, evidence of prior law enforcement encounters or tax payments, and/or the person's oral statements.

• Discretionary Factors:
  The memo specifies factors that discretionary officers could use when deciding whether to put someone into §240 removal proceedings instead of expedited removal proceedings. Those factors include: whether the case presents mental competency issues, whether the person is the sole caregiver of a US Citizen child, whether the person would be eligible for relief in §240 removal proceedings, the duration of the person's physical presence in the U.S., the extent of the person's ties to the country, and whether ICE will seek to charge additional inadmissibility grounds (for example, due to the person's criminal history).

New Public Charge Rules effective October 15, 2019

On August 14, 2019, Department of Homeland Security (DHS) published a final rule governing the public charge grounds of inadmissibility. Unless currently pending litigation halts implementation of the rule, it will go into effect on October 15, 2019.

The American Immigration Lawyers Association (AILA) provided the following summary:

The DHS final rule dramatically changes the standard by which the Department determines whether an applicant for adjustment of status or admission is "likely at any time to become a public charge" and therefore inadmissible to the United States (note that some noncitizens, such as asylees and refugees, are exempt from public charge determinations).

Under the final rule, USCIS removes the consideration of whether an individual is primarily dependent on public benefits, redefining public charge as a noncitizen who receives a specified public benefit for more than 12 months in the aggregate within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months).

The final rule defines a public benefit as:

1.       Any federal, state, local, or tribal cash assistance for income maintenance, including:

a.       Supplemental Security Income (SSI)

b.      Temporary Assistance for Needy Families (TANF)

c.       Federal, state, or local cash benefits programs for income maintenance (often called "General Assistance" in the State context, but which also exist under other names);

2.       Supplemental Nutrition Assistance Program (SNAP);

3.       Section 8 Housing Assistance under the Housing Choice Voucher Program as administered by HUD;

4.       Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation) under Section 8 of the U.S. Housing Act of 1937;

5.       Medicaid, with certain exceptions, such as benefits received by individuals under the age of 21 and pregnant women (or for a period of 60 days after the last day of pregnancy); and

6.       Public housing under section 9 of the U.S. Housing Act of 1937

A sufficient affidavit of support will not be outcome-determinative as to whether an individual is likely at any time in the future to become a public charge. Rather, to make that assessment, USCIS adjudicators will apply a complex totality of circumstances test that weighs the alien's age; health; family status; education and skills; and assets, resources, and financial status, taking into account a broad range of positive and negative factors. USCIS notes in the final rule that it interprets "likely at any time" to mean that it is "more likely than not" that the individual at any time in the future will receive one or more public benefits as defined by the rule.

One heavily weighted negative factor is an applicant's receipt of specified public benefits for 12 or more months in the aggregate within any 36-month period, beginning no earlier than the 36 months prior to the application for adjustment of status or adjustment. Critically, however, DHS will not regard as a negative factor the receipt of specified benefits prior to the rule's effective date, with the exception of cash assistance and long-term institutionalization benefits that DHS already considers relevant to the public charge determination under current policy.

Iandoli Desai and Cronin, P.C. will continue to monitor the ongoing litigation regarding the public charge change and will provide updates as they become available.

USCIS Resumes Non-Military Deferred Action Requests

Following the public and legislative outcry of US Citizenship and Immigration Service’s (USCIS) abrupt announcement in August that it would stop accepting and adjudicating applications for deferred action for non-military applicants, USCIS has now reversed course. 

As reported in previous newsletters, non-military "deferred action" is a form of temporary relief from deportation for immigrants facing special and often life-threatening circumstances. The August shift in the long-standing policy put lives in danger, including the lives of children facing serious medical conditions like cancer, epilepsy, cystic fibrosis, and HIV. USCIS' actions threatened such individuals with deportation and loss of access to essential treatment.

However, on September 19, 2019,  the Department of Homeland Security alerted members of the Oversight & Reform Committee that at the discretion of Acting Secretary McAleenan it would resume “consideration of non-military deferred action requests on a discretionary, case-by-case basis, except as otherwise required by an applicable statute, regulation, or court order.”

From the first reports of this change in policy, the national American Immigration Lawyers Association (AILA), including Iandoli Desai & Cronin’s own Madeline Cronin, has played a  role in shedding important light on this issue and those impacted, taking action by encouraging members of Congress to hold USCIS accountable, and sharing stories of the change’s implications on their clients. These collective efforts have been crucial to the reversal of this policy.

Electronic Filing of LCA in FLAG System

Starting September 16, 2019, stakeholders were able to begin preparing H-1B, H-1B1, and E-3 applications using the Form ETA-9035E, Labor Condition Application (LCA) for Nonimmigrant Workers in the Department of Labor's FLAG System. The FLAG System will not permit the submission of LCA applications until 12:00 PM Eastern Time on October 1, 2019.

The ability to submit LCA applications using the iCERT System will be deactivated at 12:00 PM Eastern Time on October 1, 2019. The Office of Foreign Labor Certification (OFLC) has confirmed, however, that it will process those LCA applications that are submitted through the iCERT system before the transition, and stakeholders will be able to access their iCERT System accounts to check the status of applications submitted through the iCERT System.

Furthermore, the Department of Labor confirmed that, while nothing is being transferred from iCERT to FLAG, employers who are currently FEIN-verified in iCERT will be FEIN-verified in FLAG. In other words, currently verified employers will not need to re-verify FEINs on October 1, 2019, when the LCAs go live in the FLAG portal. As is standing policy, new employers who have not been FEIN-verified will have to undergo the verification system in the FLAG portal.

Iandoli Desai & Cronin P.C. News

Attorneys Richard Iandoli, Madeline Cronin, Mary Walsh and Alison Howard-Yilmaz will be speaking at the upcoming NAFSA: Association of International Educators Regional Conference in Worcester, MA between October 29-31, 2019.  Attorney Iandoli will present on International Advising and the (Unauthorized) Practice of Law; Attorneys Cronin and Howard-Yilmaz will present on Department of Labor Issues; and Attorney Walsh will present two sessions, one on the Definition of “Work” & What Puts F-1 students at Risk and another on Avoiding and Responding to Requests for Evidence.  If you will be attending the NAFSA Regional Conference, we look forward to seeing you at one of these sessions.

Attorney Iandoli will also be participating this October in an Immigration Town Hall at the Massachusetts Council for International Education’s Fall Meeting for all Massachusetts state colleges and universities.

Richard Iandoli, Prasant Desai, Madeline Cronin and Mary Walsh were recognized in The Best Lawyers in America©

Richard Iandoli, Prasant Desai, Madeline Cronin and Mary Walsh have been recognized in the 26th Edition of The Best Lawyers in America© for their high caliber work in Immigration Law.  With this distinction they rank among the top 5 percent of private practice attorneys nationwide, as determined by peers. For more than three decades, Best Lawyers® has been regarded-by both the profession and the public- as the most credible measure of legal integrity in the United States.  As such, recognition by Best Lawyers symbolizes excellence in practice.

More than Thirteen States File Lawsuit over Trump 'Public Charge' Rule

Starting on August 14, 2019 thirteen states, co-led by Washington State Attorney General Robert Ferguson and Virginia Attorney General Mark Herring filed a lawsuit over the DHS public charge final rule, arguing that the rule violates federal immigration statues and unlawfully expands the definition of “public charge.” (State of Washington, et. al., v. DHS, 8/14/19) The other attorneys general filing suit include those from Colorado, Delaware, Illinois, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, and Rhode Island.  Soon after, three more states, New York, Vermont and Connecticut, joined the suit.

From the complaint:

• “The Department’s new definition of “public charge” is contrary to its longstanding meaning in the Immigration and Nationality Act.”

• “The Rule is arbitrary, capricious, and an abuse of discretion because—among other reasons—it reverses a decades-old, consistent policy without reasoned analysis, offers an explanation for the Rule that runs counter to the overwhelming weight of evidence before the Department, and disingenuously promotes as its purpose self-sufficiency in the immigrant population when, as abundantly shown by the administrative record, its effect is precisely the opposite.”

USCIS Publishes Final Rule on Inadmissibility on Public Charge Grounds

On August 12, 2019 the Department of Homeland Security (DHS) announced a final rule regarding inadmissibility on public charge grounds. This final rule amends DHS regulations by prescribing how DHS will determine whether a foreign national is inadmissible to the United States based on his or her likelihood of becoming a public charge at any time in the future. The rule also makes nonimmigrant foreign nationals who have received certain public benefits above a specific threshold generally ineligible for extension of stay and change of status.

DHS has revised the definition of “public charge” to incorporate consideration of more kinds of public benefits received, which the Department believes will better ensure that applicants subject to the public charge inadmissibility ground are self-sufficient. The rule defines the term “public charge” to mean a foreign national who receives one or more designated public benefits for more than 12 months, in the aggregate, within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months).

The rule further defines the term “public benefit” to include any cash benefits for income maintenance, Supplemental Security Income (SSI), Temporary Assistance to Needy Families (TANF), Supplemental Nutritional Assistance Program (SNAP), most forms of Medicaid, and certain housing programs. The regulation also excludes from the public benefits definition: public benefits received by individuals who are serving in active duty or in the Ready Reserve component of the U.S. armed forces, and their spouses and children; public benefits received by certain international adoptees and children acquiring U.S. citizenship; Medicaid for foreign nationals under 21 and pregnant women; Medicaid for school-based services (including services provided under the Individuals with Disabilities Education Act); and Medicaid benefits for emergency medical services.

This rule also makes certain nonimmigrant foreign nationals (i.e., F, J, H, L, O, TN, etc.) in the United States who have received designated public benefits above the designated threshold ineligible for change of status and extension of stay if they received the benefits after obtaining the nonimmigrant status they seek to extend or from which they seek to change.

This final rule supersedes the 1999 Interim Field Guidance on Deportability and Inadmissibility on Public Charge Grounds and goes into effect at midnight Eastern, October 15, 2019, 60 days from the date of publication in the Federal Register.

In the coming weeks, USCIS will conduct engagement sessions for the public and other interested groups to ensure the public understands which benefits are included in the public charge inadmissibility rule and which are not.

Iandoli Desai and Cronin, P.C. will continue to monitor and provide updates as they become available.

Check-in with Department of State’s Charlie Oppenheim regarding the September 2019 Visa Bulletin

The man in charge of the Visa Bulletin, Charlie Oppenheim, provides his insights each month of the state of immigrant visa numbers along with his projections for the upcoming month and fiscal year ending on September 30. Following determination of the dates listed in the September 2019 visa bulletin, the EB-3 category has become unavailable and will remain so through the end of this fiscal year. This includes not only EB-3 China and EB-3 India, but the entire category, including EB-3 Worldwide.

Charlie cautions that, similar to EB-3, an immediate cut-off in visa usage could very well occur in the EB-1 and EB-2 categories at any time before the end of the fiscal year if the level of demand results in those annual limits being reached prior to the end of the fiscal year.

At a macro level, the fact that there may be a need to limit/cut-off future use of numbers is a positive situation to the extent that it means that all of the numbers available under the applicable annual limits will have been used. However, for individual applicants in which the ability to immediately file for Adjustment of Status is critical to remaining in the U.S., the retrogression may have significant negative impact.

EB-1:

Charlie would like to remind practitioners that they should not expect any of the EB-1 categories to become current at any time in the foreseeable future. Charlie is hesitant to predict what the Final Action Dates will be in the EB-1 categories for October. While he hopes the EB-1 Worldwide and EB-1 China dates will revert to where they were in July 2019, it is possible they will not fully recover. However, regarding EB-1 India, which is now unavailable, Charlie is confident that it will not recover in October and may not do so for the foreseeable future.

In September 2019, EB-1 Worldwide advances 15 months, from July 1, 2016 to October 1, 2017. The reason these categories were able to advance is that the heavy surge in USCIS demand for that began in mid-May through early July 2019 did not persist. Not only did this demand not persist, but the return of unused EB-1 numbers from consular posts abroad provided additional room to allow the advancement of these categories.

In contrast, EB-1 India has become unavailable due to continued high demand, which resulted in full use of its numbers for FY19. The pent-up demand that will continue to accrue for the 6 weeks that this category remains unavailable will further delay the category's ability to recover.

EB-1 China demand remains strong, resulting in a retrogression of 2.5 years in the September visa bulletin to January 1, 2014 in order to limit any use of numbers for the remainder of the year.

EB-2:

EB-2 Worldwide advances one year to January 1, 2018, while EB-2 India inches forward 6 days to May 8, 2009. EB-2 China holds at January 1, 2017 for September 2019. Like EB-1 Worldwide, the movement for EB-2 Worldwide is due to the lessened demand and additional room made available after consular posts returned unused numbers.

Unlike the other employment-based preference categories, the demand trends for EB-2 are such that Charlie is more confident that the Final Action Dates for this category (i.e., EB-2 Worldwide) will be able to recover to current in either October or November 2019.

If you have questions about planning, please feel free to reach out and schedule a consultation with one of the attorneys (info@iandoli.com).