Article: S.2603, The Relief Act, In The Season Of Hope; Two Proposed Regulations Likely To Become Law; December Visa Chart Movement And Prognostication; Stockwell Lives

As published in the Immigration Daily on December 3, 2019

1. S.2603, The Relief Act, in the season of hope.

S.2603, the Resolving Extended Limbo for Immigrant Employees and Extended Families (RELIEF) Act is the best hope for equitable expansion and distribution of immigrant visa numbers. The bill (introduced by Senators Dick Durbin (D-Ill.) and Patrick Leahy (D-Vt.) on October 16, 2019)would eliminate the family and employment green card backlog over five years in the order in which the applications were filed; keep families together by classifying spouses and children of LPRs (lawful permanent residents) immediate relatives and exempting derivative beneficiaries of employment based petitions from annual green card limits; protect aging out children qualifying for LPR based on a parent’s immigration petition; lift the country caps; and extend the “hold harmless” clause from HR 1044 exempting immigrant visa petitions approved prior to enactment from the lifting of country caps to petitions approved for five years after enactment.Yet there is opposition as Sen. Mike Lee (R-Utah), the sponsor of S.386 (Senate counterpart of HR 1044), the Fairness for High Skilled Immigrants Act which would skew employment based second and third preference immigrant visas to India-born without adding significant numbers and therefore backlog the rest of the worldincluding China-born in these categories, reportedly refused a broader debate on his own bill to address green card backlogs. At this time, it appears that the best that can be hoped for is a relenting by the Republicans who hold the Senate to allow S.2603’s proposals to be considered in conjunction with S.386. Pressure on the Republican leadership is the best way to bring about this result, and so communication with Republican senators and espousing such consideration is strongly encouraged.

2. One of two proposed regulations about to be law – fees.

USCIS is an agency funded by the fees that it collects, and so it will be collecting more. It is almost a certainty that after a period of time for comment, new and for the most part higher fees are the order of the day.The proposed regulation with deadline for written comments by 12/16/19 – “US Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigration Benefit Requests Requirements,” Federal Register, Vol. 84, No. 220, 11/14/19, includes the following fee changes:

  • I-129 form $460 fee raised by category – for H-1 $560; for L-1 $815; for O-1 $715; for TN $705.
  • Premium processing will be changed from 15 calendar days to 15 business days.
  • $85 biometrics fee will be eliminated in most situations.
  • I-485 base fee for everyone including children will be $1120 including the biometrics (a drop from the present $1225 for applicants between the ages of 14-78). However,I-765 EADs (employment authorization documents) and I-131 advance paroles will be separately charged with EADs costing $490 and advance paroles $585. So an I-485 filing with EAD application will be $1610; I-485 with advance parole application $1705, and a combination of the I-485 with EAD and advance parole applications $2195.
  • N-400 naturalization applications will go up from $725 to $1170; N-336 requests for hearing on naturalization decision from $700 to $1755; and N-470 applications to preserve residence for naturalization purposes from $355 to $1600.
  • I-589 asylum applications will be $50 and applicants will have to pay $490 for initial EADs.
  • DACA (Deferred Action for Childhood Arrivals) renewals will go up from $495 to $765.
  • I-212 applications for permission to reapply for admission into the US after deportation or removal will be increased from $930 to $1040.
  • I-290B administrative appeals or motions will rise from $675 to $705.
  • I 539 applications to extend/change nonimmigrant status will go up from $370 to $400.
  • I-601 applications for waiver of the ground of excludability will go from $930 to $985.
  • I-601A applications for provisional unlawful presence waivers will move from $630 to $960.
  • I-751 petitions to remove conditions on residence will go from $595 to $760.
  • I-765 applications for employment authorization will rise from $410 to $490.
  • The USCIS immigrant fee which is paid after successful immigrant visa interview at the consulates or embassies will drop from $220 to $200.
  • Biometrics services where applicable will drop from $85 to $30.

The relative certainty of the fee hikes being implemented is reflected in the fact that the author cannot recall ever seeing a request for higher fees rejected in over 30 years of practice. There will undoubtedly be an outcry over the proposal for asylum applicants to pay $50 to file I-589 applications, but USCIS undoubtedly foresaw such a controversy, and so pitched a low fee just to get its foot in the door.

3. Second of two proposed regulations more than likely to be law – asylum EADs.

Another proposed regulation more than likely to become law after the period of comment and expected future court challenges upon final rule passage is “Asylum Application, Interview, and Employment Authorization for Applicants”, Federal Register, Vol. 84, No. 220, 11/14/19,with deadline for comments by 1/13/20, which includes the following:

  • The time to file for an EAD is increased from 180 days to 365 days, and the discussion of the proposed rule on page 62389 refers to a separate rulemaking proposal for the elimination of the requirement to adjudicate the EAD application within 30 days.
  • Those filing asylum applications after the one-year deadline are not eligible for C8 employment authorization unless they qualify for an exception for late filing or are unaccompanied alien children on the date that the asylum application was first filed.
  • Ineligible are also persons convicted of any aggravated felony, felony in the US or any serious nonpolitical crime outside the US, convicted in the US of certain public safety offenses including domestic violence or assault; child abuse or neglect, controlled substances, or driving or operating a motor vehicle under the influence of alcohol or drugs regardless of how the offense is classified by the state or local jurisdiction; and DHS will consider on a case-by-case basis in its discretion aliens who have been convicted of any nonpolitical foreign criminal offenses, or have unresolved arrests or pending charges for any nonpolitical foreign criminal offenses, or who have unresolved domestic charges or arrests that involve domestic violence, child abuse, possession or distribution of controlled substances, or driving under the influence of drugs or alcohol. For this purpose, DHS will require applicants to appear at an ASC (Application Support Center) to provide biometrics for initial and renewal applications.
  • Employment authorization will end when there is a denial in the asylum office, but will not where the case is referred to the immigration court, and will terminate after a denial by the immigration judge, but will be available to an alien during the appeal process at the BIA (Board of Immigration Appeals), but prohibited during federal court appeals unless the case is remanded for a new decision.
  • Persons who come into the United States illegally will not be eligible for C8 employment authorization unless they are able to establish good cause – a reasonable justification for entering the US illegally as determined by an adjudicator on a case-by-case basis. In those situations, the alien must have presented himself or herself without delay to DHS, indicated to a DHS officer an intent to apply for asylum or expressed a fear of persecution or torture, and otherwise had good cause for the illegal entry or attempted entry. Examples of reasonable justifications provided include requiring immediate medical attention or fleeing imminent serious harm.

In looking at the proposed rule, the main scope of challenge may be that it unfairly restricts the right of the persecuted to seek meaningful asylum as it denies applicants the right to legally work for at least a year or more after filing for asylum, in effect making them rely upon their own resources, those of family and friends or charitable organizations, or forcing them to seek unauthorized work to survive. The counterargument is that the rule will shut off to a large extent the magnet of economic well-being as a major reason for coming to the US. Looking at the proposed regulation as a whole, and that it mainly forestalls rather than completely stops the right of employment authorization, it is the author’s opinion that it is more likely than not that the proposal will ultimately be implemented. However, that does not mean that interested parties should not oppose the proposed rule through comment and later court challenges.

4. December visa chart movement and prognostication.

As we move into the third month of the fiscal year 2020, the visa chart for December 2019 generally shows advances of one – two months in the final action date chart for family based categories except for Mexico, and employment-based categories generally advanced with worldwide moving one and ½ months for EB-1 extraordinary aliens/outstanding researchers/multinational executives or managers to 7/15/18, and becoming unavailable for fourth preference certain religious workers and fifth preference regional centers as there is not as yet new enabling legislation. EB-1 China moved 3 ½ months to 5/15/17 while India’s EB-1 remained at 1/1/15. EB-2 advanced degree individuals from China moved three months to 6/22/15 while India advanced two days to 5/15/09. EB-3 skilled workers/professionals for China-born remained at 11/1/15 and India stayed static at 1/1/09. EB-5 non-regional center investment immigration from China advanced two weeks to 11/15/14 while India advanced three weeks to 1/1/18. USCIS confirmed that it will be using the dates of filing chart for both family and employment cases for December. Dates of filing for worldwidefamily-based cases generally advanced between three weeks-2 ½ months. For employment-based categories, EB-1 worldwide became current, EB-5 for China moved four months to 5/15/15, and the rest of the chart was the same as the filing dates for November without movement. Charlie Oppenheim, Chief of the Department of State Visa Control and Reporting Division, is warning that both EB-3 and EB-2 worldwide could backlog as early as January 2020, and the American Immigration Lawyers Association advises members to file any EB-2 and EB-3 worldwide adjustment of status applications before the end of December.

5. Stockwell lives.

USCIS issued a policy alert on November 21, 2019, that while sections 245(d) and 245(f) of the INA bar an alien lawfully admitted to the United States for permanent residence on a conditional basis from adjusting status under INA 245(a), the Board of Immigration Appeals in Matter of Stockwell, 20 I&N Dec. 309 (BIA 1991),held that INA 245(d) did not prohibit an alien whose CPR (conditional permanent resident) status had been terminated from adjusting his or her status under INA 245(a), and was updating guidance to ensure consistent application of I-485 applications to register permanent residence or adjust status filed by applicants whose CPR status was terminated. Mr. Stockwell had adjusted status before the immigration court after being granted CPR status, terminating the marriage one year later, marrying a second US citizen whose visa petition was approved, and being served by an order to show cause and notice of hearing as an alien whose conditional permanent resident status had been terminated. The immigration judge and the BIA both agreed that the implementing regulation clearly applied the bar in section 245(d) only to aliens currently holding conditional permanent resident status. In the USCIS policy manual guidance, the Service reiterated that the bar to adjustment only applied to an alien in the United States in lawful LPR status; referred to Matter of Stockwell’s holding; and stated in a footnote that “The same is also true if the alien loses his or her CPR status, for example, through abandonment, rescission, or the entry of an administratively final order of removal.” The guidance notes that it is not necessary that an immigration judge have affirmed USCIS’ decision to terminate the alien’s CPR status before the alien may file a new adjustment application, and that USCIS may adjust the status of an alien’s CPR status which was previously terminated if 1.) the alien has a new basis for adjustment; 2.) the alien is otherwise eligible to adjust; and 3.) USCIS has jurisdiction over the adjustment application. A further footnote states that if an alien’s adjustment application was denied before the effective date of this guidance on November 21, 2019, the alien may file a new adjustment application (unless he or she is still able to timely file a motion to reopen or reconsider) for USCIS to adjudicate his or her application based on the guidance.

This is the season for hope, and it would be fitting if positive action on S.2603 in Senate hearings with S.386 could be taken before adjournment or shortly after Congress comes back into session in January.