Category: Articles

As published in the Immigration Daily on Match 20, 2020

The US has had a long history of racism against Chinese, beginning with the 1871 Chinese massacre in Los Angeles, 1882 Chinese exclusion laws, 1921 and 1924 immigration laws establishing a national origins formula to further exclude Asians and others, yellow peril stories beginning in the early 1900s epitomized by the Fu Manchu character in the 1930s, and jingoistic mistrust of Chinese during the Cold War and now under a Trump administration at war with the Chinese over trade and which nation will lead in the 21^st century.

Against this background, Mr. Trump is aggressively inflaming Americans against persons of East Asian origin in the country by repeatedly calling the novel coronavirus the “Chinese virus,” while another in his administration just referred to it as the “Kung flu.” Inflammation appears to be working even in a city as diverse and ethnically tolerant as New York as seen even in this law firm’s anecdotal experience of one of our Chinese-American staff member’s two incidents within the past week, one that she witnessed of a man on the New York subway threatening Asians wearing face masks when one coughed, and the other this morning of another man cursing her when she lightly coughed (right outside Penn Station) with her mask on.

This constant emphasis on blaming the Chinese has escalated tensions across the country and highlighted Asian businesses to such a negative degree that business owners have faced colossal losses even though just about all Chinese-American citizens, permanent residents originating from China, and visitors from China are virus free due to the China travel ban, and the riskiest populations are from Europe and the Middle East with Italy and Iran leading in current contagious spread. In New York City, much of the infection was spread by a Jewish attorney from New Rochelle.

While saying the term once or twice serves as a denial to the China made rumor that the new coronavirus was brought to China by the US military (obviously someone in China read about the origins of the Spanish flu of 1918), the world at large is already cognizant of its origins. Yet Mr. Trump is using a megaphone consistently to assign blame to a known fact.

To what end the blame? The answer is diversion from the horrible job that the president has done from the very beginning to contain the virus. From abolishing the National Security Council Directorate for Global Health and Security and Bio Defense to believing that he could “wall” off the coronavirus to saying that it was a “hoax” and not taking it seriously to not having a plan in place and failing miserably to listen to public health experts and coordinate government response early in the crisis, his handling of the situation has been haphazard and dumbfounding. While Hong Kong and Singapore have solved the coronaviruses in their countries through huge amounts of testing and contact tracing, the US has fallen so far behind that it appears the only viable strategy is social distancing and lockdowns.

Mr. Trump is clearly not an advocate of Harry Truman’s famous desk sign, “The Buck Stops Here,” but an advocate of buckpassing. Repeated and continual use of the “Chinese virus” term is an attempt to deflect blame. Yet we do not need a president in this crisis to throw off blame and in so doing put the lives and property of Asians in this country at peril, but a president who accepts the blame without caring whether he is reelected or not, and moves the country forward to solve the predicament.

As published in the Immigration Daily on February 21, 2020

Barreling along, President Trump today appears to be an unstoppable force on his way to reelection in November. That is the view from here. Despite his moves towards an imperial presidency, cozying up to Russia and largely allowing it free reign throughout the world, inhumane treatment of vulnerable groups here and abroad, and corrupt or highly questionable moves to gain political advantage towards his reelection, he is gaining in popularity while the Democrats are in disarray with candidates destroying each other on debate stages.

Yet it is dispiriting that in this country founded on constitutional principles, honor and decency, Americans will choose to reelect a president without any of the above.

In this administration, all decency appears to be lost in dealing with vulnerable groups with a president who only respects the strong. The treatment of undocumented immigrants including separation of families in the border regions and in the interior, stigmatizing them as criminal rapists, murderers, and drug traffickers when the vast majority are law-abiding, attempting to suppress their representation by adding a citizenship question to the census to intimidate them from being counted, speaking of them in racist and other pejorative terms, dropping refugee admissions to record lows, and making immigrant entries a wealth test through the new public charge law, etc., all points to an innate lack of decency and refusal to make America a shining beacon as compared to the rest of the world.(Although we do not minimize the impact of immigrant crime upon its victims, we note that much higher percentages of crimes are committed by Americans upon Americans as a percentile of the population, and that Mr. Trump is adept at making a mountain out of a statistical mole hill).

Mr. Trump exhibits no honor as seen in his attack on Gold Star family members and decorated veterans who dare to criticize him, his abandonment of this country’s Kurdish allies who paid more than 7000 lives to support US efforts against ISIS and invitation to Turkey to invade their lands, his misappropriation of military funding to build his border wall, and his inveterate lying –staining the office of the presidency with a whopping 16,241 false or misleading claims since taking office as reported by the Washington Post on January 20, 2020.

Constitutional principles such as separation of powers are anathema to this president who believes that Congress is beneath him, that the presidency and the executive branch are higher than the other two branches of the US government, and that all executive branch members have no greater duty than giving their personal loyalty to him.

One would think that with such highly negative factors, Mr. Trump could not stand a good chance of reelection. Yet Democrats are up against numbers like those in the Gallup poll in January 2020 showing that a record high 90% of Americans are satisfied with their personal lives, that American confidence in the US economy is at a 20 year high, and that a record 49% of Americans approve of Mr. Trump’s performance as president.

Immigration is a topic on which all Democratic candidates hew center left or left and generally agree upon – the difficulty is the other policies such as healthcare, taxes, and redistribution of wealth and that no candidate can win an election without the undecided of this country which will not vote for those that they consider too far to the left. Conversely those who support candidates on the far left of these issues may not vote for the candidate who only projects center left (such as many of Sen. Bernie Sanders’ supporters who stayed home rather than vote for Mrs. Clinton in 2016).

Where do the Democrats go from here? With the number of candidates still campaigning against each other, the bloodletting, backbiting and divisiveness will only get worse while Mr. Trump sits on the sidelines without opposition – only having to occasionally snipe at the growing Democratic fiasco on Twitter.

As published in the Immigration Daily on February 5, 2020

The White House proclamation of January 31, 2020, on the suspension of persons entering the US from China emphasizes the Administration’s view that parents of US citizens and permanent residents are not worthy of entry to this country. The “Proclamation on Suspension of Entry As Immigrants and Nonimmigrants of Persons Who Pose a Risk of Transmitting 2019 Novel Coronavirus” excludes persons attempting to enter the US with certain exceptions including spouses and children of US citizens and permanent residents, but bars parents except where they have a US citizen or LPR child who is unmarried and under the age of 21.

One may ask why parents are largely excluded when the Immigration and Nationality Act classifies parents of US citizens over the age of 21 “immediate relatives,” the most favored category in the immigration scheme. Immediate relatives always have visa availability, do not have to wait in any backlogs, and those who violate their legal periods of stay in the US are still allowed to adjust status to permanent residence in this country. In addition, many grounds of removal are waivable for immediate relatives.

The privileged position of immediate relative parents, however, is a thorn in the side to the Administration, which strongly promoted and endorsed the 2017 Reforming American Immigration for Strong Employment (RAISE) Act which would have eliminated the parent category if passed. Mr. Trump himself came under subsequent criticism as his derogatory “chain migration” phrase was discovered to have been the vehicle for the immigration of his parents-in-law. Currently parents are largely the targets of the Administration’s collateral attacks on their privileged status –the new public charge rule due to be implemented on February 24, 2020, and the enjoined presidential proclamation requiring immigrants to show the ability to obtain health insurance within 30 days of entry to the US.

Barring the parents of adult US citizens and permanent residents makes little sense, especially in light of the rigid screening and quarantine process in place for persons from China who enter the country. Even if the current precautions fail to detect the coronavirus, this group of immediate relatives generally stays at home and is not as active as others, thus further reducing the chances of transmission.

Concerning the new six-nation terrorism ban against Eritrea, Kyrgystan, Myanmar (Burma), Nigeria, Sudan and Tanzania announced on the same day,“Proclamation on Improving Enhanced Vetting Capabilities and Processes for Detecting Attempted Entry,”this appears to be a mess of illogical thinking not furthering any strategic goal other than keeping out mostly persons of color who wish to immigrate. The measure makes no sense if the goal is to keep out people who may have terroristic tendencies as there is no ban on nonimmigrant entries. So persons from these six countries could still come to the US under visitors visas or more permanent nonimmigrant visas allowing them years to remain in this country cooking up plots if they were so inclined. In looking at the ban, four countries, Eritrea, Kyrgystan, Myanmar and Nigeria are entirely banned from sending immigrants to this country except for special immigrants who have provided assistance to the US government, and visa lottery immigrant (DV) entrants are barred from Sudan and Tanzania. The logic behind this ban is entirely elusive. The announced purpose of the travel bans is to punish countries that are unwilling or unable to improve their information sharing to assist the United States in assessing national security and public safety threats. Yet the halfway measures show that national security is not the true purpose of the ban.

The president of course has shown the ability to have his travel bans enforced in cases that have gone as high as the Supreme Court. Yet one might wish for logic rather than just bias and/or playing to Mr. Trump’s base in an election year.

As published in the Immigration Daily on January 22, 2020

At this time, favorable court decisions staying implementation of the public charge regulation finalized in August 2019 with implementation date of October 15, 2019, have been whittled from three circuits to one and the Trump administration recently filed an emergency application with the Supreme Court on January 14, 2020, to the remaining injunctions of the US Southern District Court of New York. This may very well be the last prelude before the rule becomes law affecting an estimated 382,000 intending immigrants and intimidating countless others and their US dependents from applying for benefits to which they are rightfully entitled.

The public charge rule expands disallowed benefits to include food stamps (SNAP), section 8 housing vouchers, section 8 project-based rental assistance, public housing under section 9 of the US Housing Act of 1937, and Medicaid with certain exceptions.  The public charge determination will be made on a judgment of the totality of circumstances rather than through just consideration of the ability of the immigrant to have support meeting the poverty guideline levels with such factors as age, health, family status, education and skills, assets, resources, and financial status along with whether the person is proficient in English or other languages in addition to English taken into consideration. I-864 affidavits of support in family-based cases will be scrutinized for the strength of the relationship including whether the sponsor lives with the alien, and whether the sponsor has submitted affidavits of support for other individuals.  And heavily weighted positive factors are whether the alien’s household has income, assets, or resources, and support of at least 250% of the federal poverty guidelines for the household size, or the alien is legally employed with an annual income of at least 250% of the federal poverty guidelines, or he or she has private health insurance without the subsidies of the Affordable Care Act. (It should be noted that under the just published 2020 poverty guidelines, Federal Register, volume 85, number 12, pp. 3060-3061, 1/17/20, 250% of the poverty guidelines in the 48 contiguous states and DC for a family of three would be $54,375 and for four $65,500 qualifying the regulation as an attack on the poor).

Nationwide stays by district courts in the Fourth and Ninth circuits were overturned by recent Court of Appeals rulings in Casa de Maryland, Inc. v. Trump, No. 19-2222 (4^th Cir. December 9, 2019) and City & County of San Francisco v. USCIS, 944 F.3d 773 (9^th Cir. 2019), but the ones issued by the Southern District Court of New York were upheld by the Second Circuit on January 8, 2020, in State of New York, et al v. United States Department of Homeland Security, et al., No. 19-359, and Make the Road New York, et al., v. Ken Cuccinelli, et al., No. 19-3595.

Against this backdrop, the Administration moved the Supreme Court to dissolve the stays pending disposition of a petition for writ of certiorari arguing that it should be allowed to move forward with the rule since there is a reasonable probability that four justices would consider the issue sufficiently meritorious to grant certiorari, there is a fair prospect that a majority of the court will conclude that the decision below was erroneous, and a likelihood that irreparable harm would result from denial of the stay. The government especially pointed to the Ninth Circuit decision language that “DHS has shown a strong likelihood of success on the merits, that it will suffer irreparable harm, and that the balance of the equities and public interest favor a stay” (of the district court’s order). The government also heavily groused over the fact its policies could be held hostage on a nationwide basis by the ruling of a single district court although the Republican party had no such doubts when the shoe was on the other foot and a single district court judge in Brownsville, Texas, effectively bottled up the past administration’s program, Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) in 2015. (See Texas v. US, No. 1:14 CV-00254 (SD Tex. April 7, 2015)).

The government’s application at the Supreme Court is now with Justice Ruth Bader Ginsburg who will first review the application. She can rule on the request alone or as some think most likely, refer it to the full court. But even if Justice Ginsburg rules against the government, the regulation could still be implemented after the Second Circuit decides on the merits of the suits. That court set an expedited briefing schedule on the merits with the last brief due on February 14 and oral argument to be scheduled promptly thereafter.

A comment must be made on the Administration’s application argument that irreparable harm will ensue unless the preliminary injunctions are lifted since they force DHS to grant status to those not legally entitled to it and DHS has no practical means of revisiting public charge determinations once made. One wonders why this is irreparable harm given the almost weekly changes of established policy by this administration, essentially turning previously welcome individuals into pariahs without any changes in their circumstances. In other words, what is the real harm of allowing the status quo to continue pending a final decision on the merits as we are not contemplating the admission of criminals or security threats?

Addenda – Since the writing of this article on January 22, 2020, the Supreme Court ruled for the Trump administration 5-4 on January 27, 2020, lifting the stays of the District Court of New York. The next actions in court will be the Fourth, Ninth, and Second Circuit Courts of Appeals deciding on the actual merits of the public charge rule. Rulings could take two months or more. In the meantime, the Department of Homeland Security is moving forward with implementing the rule and will apply it to applications and petitions postmarked or submitted electronically on or after February 24, 2020.

As published in the Immigration Daily on January 2, 2020

There has been recent action with these two pieces of legislation aimed at reducing immigrant visa backlogs, which will hopefully continue with rapid pace when Congress again begins its work.

S 2603, the Resolving Extended Limbo for Immigrant Employees and Extended Families (RELIEF) Act, which is widely regarded as the best hope for equitable expansion and distribution of immigrant visa numbers, has gained a House companion bill, HR 5327, introduced by Representative Donna Shalala (D-FL) on December 5, 2019. The RELIEF Act would eliminate green card backlogs within five years, among other favorable provisions.

There is even more action in the flawed Fairness for High Skilled Immigrants Act of 2019, HR 1044/S386, as Sen. Dick Durbin (D-Ill.) reached a compromise on December 18 with Sen. Mike Lee (R-UT), S386’s sponsor, under which he would drop his opposition to S386 in return for the ability of employment based applicants to file for early adjustment of status under the EB-1, EB-2, or EB-3 categories if the visa petition has been approved or pending for more than 270 days, regardless of whether the priority date is available. (Such information is contained in a draft of the amended bill which is being circulated around Washington). The adjustment of status application could not be approved until an immigrant visa becomes available. The early filing comes with the ability to gain employment authorization for three years at a time, to change employers, and travel freely as well as protection for children who age-out after the adjustment of status application is filed. Sen. Durbin is a pivotal figure as it was his earlier opposition to S 386 that stopped the bill from being passed by unanimous consent in the Senate and he is the sponsor along with Sen. Patrick Leahy (D-Vermont) of S 2603.

HR 1044/S386 comes with a small price to the Indian community as the draft bill would prohibit employers with 50 or more employees from having over 50% on H-1B or L-1 visa statuses. All subsidiaries or group related companies that are part of one group would to be treated as a single employer as long as they are filing taxes under one entity as per §414 of the IRC. (Indian companies have dominated the H-1B market in past years garnering approximately 75% of all H-1B visas in 2016 and 2017).

Although the draft compromise makes the legislation better, it does not solve the huge problem of immigrant visa backlogs, which are more readily tackled by the RELIEF Act. It should be emphasized that the draft compromise like the original bill does not add any immigrant visa numbers. It merely reshuffles the numbers to natives of India to the detriment of the rest of the world, including China. (See our article, “Amended HR 1044 in S386 Happening Now Amid a Flood of Concerns”, The Immigration Daily, September 23, 2019). To those who would say that HR 1044/S386 benefits China-born also, one only has to point out that the China backlog under both EB-2 and EB-3 categories is less than 50,000 while the Indian backlog is over 600,000. India and China are not in the same boat, but the one piece of legislation that would make an equitable sharing of immigrant visas for everyone is the RELIEF Act.

Yet the political realities of the situation must be considered. Discussing his compromise with Sen. Lee on the Senate floor, Sen. Durbin pointed out that although he favored his own bill, it would not pass in the Senate at this time; that the President did not agree, and that most Republicans in the House and Senate also did not agree. It may well turn out that this compromise is the only game in town for a long time.

The question is then whether the immigrant community at large should continue to oppose HR 1044/S 386 in favor of the status quo or support it despite its inequitable sharing of immigrant visas and H-1B strictures – (in effect turning H-1B’s into a recruitment based program in which employers test the American job market using a searchable Internet website for posting positions administered by the Department of Labor, pay a fee for applying for a labor condition application (LCA), and prevailing wage challenges are placed directly under the jurisdiction of DHS).

It’s a closer call.

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.

As published in the Immigration Daily on October 15, 2019

The Administration’s public charge rule for immigrants due to be implemented on October 15, 2019, ran into roadblocks thrown up by US district courts in New York, California, and Washington State. The preliminary injunctions in both New York and Washington were nationwide in scope while the one in California was more localized.

Judge Rosanna Malouf Peterson of the Eastern District Court of Washington stayed the implementation of the public charge rule “in its entirety” pending entry of a final judgment; that “the effective date of the final rule is postponed pending conclusion of these review proceedings”; and that DHS was preliminarily enjoined from implementing or enforcing the rule.¹  Judge Phyllis J. Hamilton of the Northern District Court of California enjoined among others Donald J. Trump, as President of the United States, from applying the rule to any person in San Francisco, Santa Clara, California, Oregon, the District of Columbia, Maine, or Pennsylvania or to anyone part of a household including such a person.²  Judge George B. Daniels of the Southern District Court of New York in a pair of rulings issued a nationwide injunction, as well as a stay postponing the effective date of the rule pending a final ruling on the merits or further order of the court in one,³ and more specifically in the second restraining and enjoining DHS and USCIS from “implementing, considering in connection with any application, or requiring the use of any new or updated forms whose submission would be required under the Rule, including the new form I-944, titled’ Declaration of Self-Sufficiency’, and the updated form I 485, titled ‘Application to Register Permanent Residence of Adjust Status’”; that the effective date of the public charge rule is stayed and postponed; that if the court’s order is later terminated and the rule goes into effect, the rule’s stated effective date of October 15, 2019 “shall be replaced with a date after this Order is terminated.”4

So insofar as adjustment of status in the US is concerned, it would appear that applicants can continue filing with the old forms until such date that the courts’ preliminary injunction rulings are overturned on appeal, or the government wins on the merits on the case as a whole before the same court or on appeal thereafter.

Yet none of these rulings enjoin the Secretary of State who published an interim final rule on October 11, 2019, implementing rules on public charge to go into effect on October 15, 2019, based entirely on the public charge rule. The question is whether consular officers will be permitted to implement the interim final rule even though the summary clearly states its purpose as being in sync with DHS:

This rulemaking is also intended to align the Department’s standards with those of the Department of Homeland Security, to avoid situations where a consular officer will evaluate an alien’s circumstances and conclude that the alien is not likely at any time to become a public charge, only for the Department of Homeland Security to evaluate the same alien when he seeks admission to the United States on the visa issued by the Department of State and finds the alien inadmissible on public charge grounds under the same facts. 5

Although not directly enjoined by any of the three courts, a turkey (as we are getting close to Thanksgiving and as the public charge rule is one) with its head chopped off cannot still operate its wings to fly, and so the State Department should not believe that it has authority to put its own rule into effect at this time. (Please see note below)

The rulings by the three courts also did nothing to suspend the October 4, 2019, “Presidential Proclamation on the Suspension of Following the writing of this article, a Department of State official confirmed that the public charge rule will not be implemented until a new form is approved, and it was subsequently learned that the State Department will use a new form DS-5540 (Public Charge Questionnaire), which is awaiting clearance by the Office of Management and Budget (OMB). The form will be demanded of approximately 450,000 green card applicants annually. This is a technical stoppage, but it remains to be seen whether the public charge rule can be implemented by State even if the form swiftly passes OMB in light of the outstanding preliminary injunctions collapsing the DHS public charge regulation for the time being.]Entry of Immigrants Who Will Financially Burden the United States Healthcare System”, slated to go into effect on November 3, 2019. That Proclamation affects consular processing and not adjustment of status, but would require of immigrant visa applicants (with limited exceptions) that they show that they will be covered by approved health insurance (not one with coverage under the Medicaid program) within 30 days of entry into the US, or they have sufficient financial resources to pay for reasonably foreseeable medical costs. Based on a study by the Migration Policy Institute, a nonpartisan, independent think tank dedicated to analysis of US and global migration, up to 65% of legal immigration could be barred from entering the US. It is believed that legal challenges will be filed to enjoin the Proclamation before the date of implementation.

It is unfortunately even more clear with the relentless attacks of Mr. Trump and his cohorts on immigrants focused on who has money that, with his wealth tests for entry which includes knowing the English language, he is looking mainly for white Europeans to come while rejecting most of the rest of the world.

1. State of Washington at al v. United States Department of Homeland Security et al., No. 4:19-CV-5310-RMP (EDWA. 10/11/19)
2. City and County of San Francisco, et al v. US Citizenship and Immigration Services, et al., Cases Nos. 19-CV-04717-PJH, 19-CV-04975-PJH, 19-CV-04980-PJH (NDCA 10/11/19)
3. State of New York, at al v. United States Department of Homeland Security, et al., No. 19 Civ. 7777 (GBD) (SDNY 10/11/19).
4. Make the Road New York, et al., v. Ken Cuccinelli, et al., No. 19 Civ. 7993 (GBD) (SDNY 10/11/19)
5. “Visas: Ineligibility Based on Public Charge Grounds”, Federal Register, Volume 84, No. 198, October 11, 2019.

Note:
Following the writing of this article, a Department of State official confirmed that the public charge rule will not be implemented until a new form is approved, and it was subsequently learned that the State Department will use a new form DS-5540 (Public Charge Questionnaire), which is awaiting clearance by the Office of Management and Budget (OMB). The form will be demanded of approximately 450,000 green card applicants annually. This is a technical stoppage, but it remains to be seen whether the public charge rule can be implemented by State even if the form swiftly passes OMB in light of the outstanding preliminary injunctions collapsing the DHS public charge regulation for the time being. 

As published in the Immigration Daily on September 23, 2019

S.386 based on amended HR 1044, the “Fairness for High Skilled Immigrants Act of 2019”, appears on study to make visa number allocation changes in the EB-2 advanced degree and EB-3 skilled workers/ professionals/other worker categories benefiting only  the India-born. Senator Mike Lee (R-UT) moved for a unanimous vote in the Senate on September 19th (it previously passed the House) and although rebuffed by Senator David Perdue (R-GA), said that he intended to work with Sen. Purdue over the weekend to resolve differences.

The difficulty with the visa number change provisions is that there are only a finite number of employment-based visas, 140,000 allotted each year, to be fought over by every country in the world. (After FY 2022, 5000 of the visas will be taken for a period of 5 years for a new shortage occupation category). The legislation will remove the limit of the total that each country can obtain (currently 7%) and allow one country to take as many numbers as it can subject to a three-year transition period in which 15% would be reserved for the rest of the world except for India and China in FY 2020, and 10% in both 2021 and 2022 fiscal years. Of the 140,000, EB-2 is allowed 40,040 visas per year, and EB-3 the same amount (minus the 5000 for the shortage occupation category after FY 2022). As there is an 85% rule for the three-year transition period in which a single state cannot take more than that amount of visas, that means India-born could conceivably swallow up close to 85% of the EB-2 and EB-3 quotas for FY 2020-2022 less the numbers that must still be given to China-born and those of the rest of the world who have I-140 petitions approved as of the date of enactment since there is a “hold harmless” clause that those individuals will receive immigrant visas as if this legislation was never passed. The reason for the dominance of India is because entitlement to visa numbers depends upon priority dates with the oldest ones being served first. The pending India cases have priority dates which are 6 years earlier than the earliest priority date of the next heaviest user of employment-based immigrant visas, China. According to U.S.C.I.S. statistics in April 2018, India-born in the U. S. with approved I-140 petitions have a backlog of over 430,000 cases including dependents in the EB-2 line and about 115,000 including dependents in EB-3. This does not take into account approved petitions for India-born outside the U. S. According to Department of State statistics in November 2017, there were an additional 10,961 and 21,962 Indian cases in the EB-2 and EB-3 lines, and using the same U.S.C.I.S. multiplier for dependents, those figures would increase to 21,922 and 46,120. Simple math shows that only 80,080 total EB-2/EB-3 visas will be available every fiscal year with a three-year total of 242,400 through FY 2022. India alone had an estimated demand for 616,683 EB-2 and EB-3 numbers (using the above statistics counting those India-born in the U. S. and overseas with approved petitions) and there is no indication that the number of Indian employment cases has slackened recently. Following the transition period of 3 years, the reserve will come off of the 15% and 10%, and the entire 135,000 will then be available to the countries with the earliest priority dates, most likely still India as there will still be an estimated India demand of 350,000+ in the 2 categories, and the lower EB-3 category will be filled up by the many conversions of India EB-2 cases to EB-3. India’s backlog will also be longer due to the 5% drop-off in the worldwide reserve from 15% to 10% in FY 2021 and FY 2022 as a single state is restricted to 85% of the available visas. It should be noted that EB-2 and EB-3 numbers can be augmented by drop downs of unused visas from other categories, but visa usage is extremely high across the board and significant drop downs are unlikely.

The difficulty with the bill is that it does not expand the number of employment-based visas except for 5000 additional numbers for 3 years for the shortage occupations and only reallocates the existing ones. The “do no harm” clause will primarily only apply to a number of individuals from China with approved petitions whose cases would be within striking distance under China’s current backlog, but for those China-born without approved petitions on the date of enactment, they would be severely disadvantaged by the much earlier priority dates of the mountain of Indian cases. Their only sliver of hope is to take advantage of the 5% drop of reserved visas from 15% to 10% in FY 2021-2022 which Indians will not be able to touch because of the 85% single state limit rule. Additionally the logistics of administering a separate chart to figure out what visa movement would have been for the approved petition cases will likely be a nightmare.

For family-based cases, the legislation would increase the number of visas available for each country from a limit of 7% of the 226,000 worldwide total to 15%. The legislation would primarily benefit the countries of Mexico and the Philippines, and can be expected to retrogress family-based priority dates in all categories with the possible exception of the F-2A preference (LPR applying for spouse or unmarried child under the age of 21) which is current across all countries today.

Besides the visa number situation, a poison pill was slipped into the legislation by Senator Chuck Grassley (R-IA), an opponent of the H-1B program, in the form of provisions reformulating new H-1B’s as a test of the American job market with the requirement of a searchable Internet website for posting positions administered by the Department of Labor which must not only describe the job in full, but include the process for applying for the position. Currently the H-1B program is not a test of the American job market except for certain employers who have a large number of H-1B workers or past violators of the program. The employer would not be allowed to restrict the position to individuals who are or would be H-1B non-immigrants; give those individuals priority or preference in the hiring process; nor primarily recruit those types of individuals. The poison pill would also include the promulgation of a regulation to charge for the Labor Condition Application (LCA), and place challenges pertaining to the prevailing wage directly under the jurisdiction of the Department of Homeland Security (currently wage questions are the province of the Department of Labor).

Relating to H-1B’s, the new rule would also eliminate the use of B-1 business visas which companies use in lieu of H-1B’s where the alien will come temporarily to the U. S. for certain purposes for a short period(s) of time while being paid by an overseas company.

The one good part of the legislation is the reinstatement of Schedule A shortage occupations such as nurses and physical therapists for 8 years from FY 2020-2028 under which 5000 additional visas would be allocated for a three-year period from FY 2020-2022 before slicing into the 140,000 employment-based numbers. The inclusion of this provision prompted Senator Rand Paul (R-KY) to drop his opposition to the bill.

The legislation has an effective date of September 30, 2019, even if passed after that date. If the bill passes the Senate, it will go back to the House for reconciliation and final passage before moving to the White House.

On balance, we cannot support this bill, and urge a better one under which all employment dependents will no longer be counted or backlogs cleared for all countries inasmuch as the visa applicants are individuals who would benefit this nation, and have been or will be cleared by the Department of Labor and/or U.S.C.I.S. in labor certification/petition approvals in terms of skills to help the country – many in critical industries.

As published in the Immigration Daily on August 14, 2019

I have not read the advance copy of the final rule as it is over 800 pages, so this is not a comprehensive summary and is only based on reading the regulation itself and not the comments save for those dealing with health insurance. This can best be used as a quick guide to most of the changes to the public charge section.

The rule goes into effect on 10/15/19, and all cases will be judged by it which are submitted on that day or after. All cases submitted prior to that date will be judged by the old rules. Under the old rules, food stamps (SNAP), section 8 housing vouchers and any other benefits excluded from consideration now are not to be considered. Those that would be considered public benefits now and are received before 10/15/19 will be considered in the totality of the applicant’s circumstances, but will not be weighed heavily. Those include any amount of cash assistance for income maintenance, including SSI, Temporary Assistance for Needy Families (TANF), state and local cash assistance programs that provide benefits for income maintenance (often called general assistance programs), and programs including Medicaid supporting aliens who are institutionalized for long-term care, received, or certified for receipt.

The standard of proof in determining the public charge ground is whether someone is “more likely than not” at any time to become a public charge.

U.S.C.I.S. will make a determination of public charge on the totality of circumstances of whether the alien is more likely than not at any time in the future to receive one or more public benefits for more than 12 months in the aggregate within any 36 month period. Minimum factors to consider are the alien’s age, health, family status, education and skills, and assets, resources, and financial status. In looking at the family status, DHS will consider the household size and whether the household size makes the alien more likely than not to become a public charge at any time in the future. In looking at assets, resources, and financial status, the rule looks at whether the household’s annual gross income is at least 125% of the most recent federal poverty guideline (FPG), and on counting assets three times the difference between the household income and 125% of the FPG if the alien is the spouse or child of a USC (and the child has reached the age of 18), and in all other cases five times the difference.

Evidence-wise, U.S.C.I.S. will be looking for tax transcripts from the IRS, and if they cannot be obtained, other credible and probative evidence of household members’ income, including an explanation of why a transcript is not available. Non-cash assets and resources to be considered are those which can be converted into cash within 12 months –specifically mentioned are annuities, securities, retirement and educational accounts, and any other assets easily converted to cash. The rule also considers as evidence the alien’s credit history and credit score in the United States and other evidence of liabilities not reflected in the credit history and credit score, e.g. mortgages, car loans, unpaid child or spousal support, unpaid taxes, and credit card debt.

In considering education and skills, an alien must provide the last three years of tax transcripts from IRS and if not available, other credible and probative evidence of the alien’s history of employment for the past three years including an explanation as to why transcripts are not available; whether he or she has a high school diploma or a higher education degree; whether the alien has any occupational skills, certifications, or licenses; whether the alien is proficient in English or proficient in other languages in addition to English; and whether the alien is a primary caregiver such that the alien lacks an employment history.

 Applicants seeking adjustment of status will be required to submit a declaration of self-sufficiency on a form to be designated by DHS.

Where an affidavit of support is required in family-based cases, U.S.C.I.S. will be looking at the sponsor’s relationship to the applicant, including but not limited to whether the sponsor lives with the alien, and whether the sponsor has submitted an affidavit of support for other individuals.

The household size for an alien 21 or older or under 21 and married includes the alien, alien’s spouse physically residing with the alien, children physically residing with the alien, other children not physically residing for whom the alien provides or is required to provide at least 50% of the children’s financial support, any other individuals including a spouse not physically residing with the alien to whom the alien provides or is required to provide at least 50% of the individual’s financial support or are listed as dependents on the alien’s federal income tax return, and any individual who provides to the alien at least 50% of the alien’s financial support, or who lists the alien as a dependent on his or her federal income tax return. Similar rules apply where the alien is a child including the child’s children, parents, legal guardians, or other individuals providing or required to provide at least 50% of financial support, and the other children or other individuals to whom the alien’s parents are legal guardians who provide or are required to provide at least 50% financial support, or any other individual who is listed as a dependent on the parents’ or legal guardians’ federal tax return.

Heavily weighted negative factors are that the alien is not a full-time student and is authorized to work, but is unable to demonstrate current employment, recent employment history, or reasonable prospect of future employment; has received or has been certified or approved to receive one or more public benefits for more than 12 months in the aggregate within any 36 month period beginning no earlier than 36 months prior to the alien’s application for permission or adjustment status on or after 10/15/19; the alien has been diagnosed with a medical condition likely to require extensive medical treatment or institutionalization or that will interfere with the alien’s ability to provide for himself or herself, attend school, or work, and is uninsured and does not have the prospect of obtaining private health insurance nor the financial resources to pay for reasonably foreseeable medical costs related to such medical condition; or the alien was previously found inadmissible or deported on public charge grounds by an immigration judge or the Board of Immigration Appeals.

Heavily weighted positive factors are that the alien’s household has income, assets, or resources, and support of at least 250% of the FPG for the alien’s household size; the alien is authorized to work and is currently employed in a legal (as opposed to illegal) industry with an annual income of at least 250% of the FPG; or the alien has private health insurance and does not include health insurance for which the alien receives subsidies in the form of premium tax credits under the Affordable Care Act (ACA).

Refugees and asylees along with certain other classes are exempt from the rule.

Public benefit means all of the ones currently prohibited, but the new ones are food stamps (SNAP), section 8 housing assistance under the housing choice voucher program, section 8 project-based rental assistance, public housing under section 9 of the US Housing Act of 1937, and Medicaid (except for emergencies, benefits under the Disabilities Education Act, school-based services or benefits for persons below the oldest age eligible for secondary education, benefits received by an alien under 21 or a woman during pregnancy and during the 60 day period beginning on the last day of the pregnancy). Of note is that it does not include health insurance bought with subsidies outside Medicaid. In answer to a comment on whether to add subsidies provided using means tested criteria under the Patient Protection and Affordable Care Act, DHS answered in the following:

DHS has decided not to consider ACA subsidies or health insurance received through the health insurance marketplace outside of Medicaid as public benefits in the public charge inadmissibility determination, due to the complexity of assessing the value of the benefit and the higher income eligibility thresholds associated with the benefit, as compared to the eligibility thresholds for other benefits. As discussed in section III.R of this preamble, DHS has added a heavily weighted positive factor for private health insurance appropriate to the expected period of admission. This heavily weighted positive factor would not apply in the case of a plan for which the alien receives subsidies in the form of premium tax credits.

In the future, a strong suggestion would be for those organizations offering subsidized health insurance to openly identify the source of the subsidies.

Public charge bonds to overcome the public charge ground can be given in the discretion of DHS with the warning that if an alien has one or more heavily weighted negative factors in his or her case, DHS generally will not favorably exercise discretion to allow submission of the bond. The minimum amount of bond has been decided as not less than $8100, and bond amounts will be annually adjusted for inflation based on the Consumer Price Index for Urban Areas (CPI-U) and rounded up to the nearest dollar. The bond remains in effect until U.S.C.I.S. grants the request to cancel the bond in situations wherein the alien has naturalized or otherwise obtained US citizenship, permanently departs the US, dies, has reached his or her five year anniversary since becoming an LPR, or the alien changes immigration status to one not subject to the public charge ground of inadmissibility. Where a bond has been granted, the alien may not receive any public benefits for more than 12 months in an aggregate within any 36 month period (such that, for instance, receipt of two benefits in one month counts as two months) after the alien’s adjustment of status.

We imagine that in the next two months before the regulation goes into effect, there will be court challenges which may delay or alter the final rule, and we hope that such will meet with success. The rule while not being the worst imaginable in this author’s opinion clearly favors those who are young, educated, middle-class to affluent, and speak English. The Trump administration has already said that parents, less educated, and non-English-speaking people (mostly those of color) are no longer welcome, and this regulation is that planted sign on the front lawn of America.

As published in the Immigration Daily on July 29, 2019

Anything that U.S.C.I.S. changes at this time generally is tougher to pass or to obtain, and so our advice to people who are or will soon become eligible to naturalize is to do it ASAP. The agency announced on July 19, 2019, that it will be changing the naturalization civics test with an implementation date in December 2020 or early 2021. That gives applicants approximately 16+ months to get to the point of the naturalization interview and testing if they file now. The rules on naturalization filing are that most everyone can file 90 days before either the three-year eligibility mark (if qualifying through marriage to a U. S. citizen) or the five-year eligibility mark for others.

Why the concern? The presumption is that in the age of Republican politics and President Trump where the Party and the President are fighting over every vote, and in which the Administration’s immigration policy is seen as anti-immigrant, the vast majority of those who naturalize will vote Democrat and the president and his party would like to lessen the number of recently naturalized eligible voters.

A look at the May 3, 2019 U.S.C.I.S. memorandum, “Revision of the Naturalization Civics Test,” ringingly promotes the concern. It is replete with phrases and sentences that would make one shudder if one was not completely fluent in the English language. A prime example is “In addition, the working group will also assess potential changes to the speaking test.” What that means is that regardless of how many classes a naturalization applicant goes to, that will not help where the naturalization examiner starts to converse with the applicant at the interview on subjects related only tangentially to history and government to test the ability of the person to have a good understanding of English. The foreboding tone can be seen in at least two other sentences in the memorandum that “The civics test was instituted to ensure that applicants for naturalization understand American civics and can exercise their rights and responsibilities as new citizens” and “Standardized tests are revised regularly to ensure accuracy and timeliness of content, as well as to counter ways that test takers may engage in fraud or nefarious actions that attack the integrity of the exam .” One wonders how test takers would engage in fraud or nefarious actions attacking the integrity of the exam unless there is complicity on the part of U.S.C.I.S. examiners, and if that was the case, such would not be solved by a test revision. Finally the memorandum’s summary sentence contains buzzwords that the test will be more difficult in stating, “The purpose of this test redesign is to create a meaningful, comprehensive, uniform, and efficient test that will assess applicant’s knowledge and understanding of U. S. history, government, principles, and values.” Both “meaningful” and “comprehensive” cry out that U.S.C.I.S. will want a level of understanding of the country’s history and government structure that beggars what is required today. What that sentence and the others means is – expect a harder test!

The memorandum was written by the former director of U.S.C.I.S., L. Francis Cissna, who was recently forced out by Mr. Trump for not coming out with restrictive regulations faster. Under his successor, Ken Cuchinelli, one can only expect that the future change to the test will either continue as planned or that he will make the contemplated degree of difficulty harder or the implementation faster. Upon his installation as the acting director of U.S.C.I.S. last month, he stated that he sees it as his job to treat access as a privilege and not a right, and that, “We are not a benefit agency, we are a vetting agency.”

For readers who are eligible for and are thinking to naturalize, the watchword is “Don’t wait!” The future does not look as bright for those who choose to wait and are not very good at English, but hope to get better through naturalization classes.