Green Cards

Presidential Proclamation RE: H-1B, H-2B, J-1, and L-1 Visas

As everyone is aware, late on June 22, the President issued a new proclamation suspending the entry for certain foreign nationals seeking to enter the U.S. on H-1B, H-2B, J-1, and L-1 visas (and applicable dependents such as H-4 and L-2). While we do not believe that this proclamation will have the intended effect of freeing up jobs for U.S. workers, we do believe that the effect will be limited to those in specific situations.

The Executive Proclamation applies only to those outside the U.S. on the effective date (12:01 am on June 24, 2020). Any foreign national currently in the U.S. will not be affected by this proclamation, either for current application or future extensions or visas at the U.S. consulate. We expect the main group that will be impacted is H-1B CAP cases filed as Consular cases. They will not be able to enter the U.S. until next year regardless of approval and visa period. H-1B CAP cases filed as a Change of Status in the US will not be affected.

Even if a person is outside the U.S, the Executive Proclamation applies only if the person does not already have a valid visa on the effective date or a valid travel document. Those with a visa stamping currently in their passport may continue to use it to enter the U.S. as normal. However, we caution to be prepared if traveling in the U.S. as there will be additional review by the officer to determine whether a person is exempt from the Proclamation.

The J-1 restriction is limited to only interns, trainees, teachers, au pairs and camp counselors; it does not restrict entry for researchers, physicians or any other J-1 category.

As a result of the is order, anyone who is affected by the Executive Proclamation will be unable to obtain a visa unless they meet one of the exceptions which includes:
(1) any lawful permanent resident of the United States;
(2) any person who is the spouse or child, as defined in the Immigration and Nationality Ac;
(3) any person seeking to enter the United States to provide temporary labor or services essential to the United States food supply chain; and
(4) any person whose entry would be in the national interest as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.

It is worth reemphasizing that visas not listed, such as E-1, E-2, E-3, O-1, P, TN (Canadian and Mexican), are not included and entry on these visas can continue as normal. Furthermore, the filing and processing of U.S. permanent resident applications (Application to Adjust Status) have not been impacted by this Proclamation. USCIS and DOL may continue to process such applications.

If you have questions about a specific scenario not covered above, please contact your HNM attorney. Stay safe.

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July Visa Bulletin

The Department of State (DOS) has released the July Visa Bulletin and there was significant forward movement in multiple categories which is unusual this late in the fiscal year. The “All Other” EB3 moved forward another 6 mos. as did EB3 for the Philippines, Mexico, and Vietnam. India EB1 jumped forward 10 months. The difference between India EB2 and EB3 is only 5 weeks. The USCIS has indicated that they will use the Final Action Date chart for I-485 filings in July.

Green Cards US Immigration Policy Visas - H-1b, L-1, E, O, TN

Premium Returns

The USCIS has announced that premium processing will return in phases throughout June. Below is a chart to help you see when your petition will be eligible:

JUNE 1st:
-All I-140’s can be premium processing

JUNE 8th:
-H-1b transfers filed before June 8th can be upgraded
-H-1b extensions filed before June 8th can be upgraded
-H-1b cap exempt entities filed before June 8th can be upgraded
-Non H-1b I-129 petitions (TN, L-1) filed before June 8th can be upgraded. E-3 still not eligible for premium processing

JUNE 15:
-h-1b’s that are cap exempt entities, regardless of original filing date, can be premium processed
-H-1b’s for physicians under J-1 waiver

JUNE 22nd:
-All I-129’s can be premium processed (including cap cases, H-1b transfers that were filed after June 8th

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June Visa Bulletin

Last week, the Department of State (DOS) released the June Visa Bulletin and several categories saw significant forward movement. The EB3 all others and Philippines both jumped forward 10 mos. as did India EB1. Other categories saw little to no forward movement. The USCIS announced that it would follow the Final Action Date chart for I-485 filings in June. If you are current in June, we encourage you to file your I-485 as the summer months typically see retrogression.

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May Visa Bulletin

The Department of State has finally released the May Visa Bulletin and it has a few pleasant surprises. Most notably, EB1 for all other countries became current; all categories for PRC moved forward; and, India EB1 and EB3 each moved forward over 1 month. The EB3 Philippines category stayed retrogressed to Jan 1, 2017 which is most unfortunate since the majority of persons in this category are registered nurses which are badly needed in the US at this time. The USCIS has declared that for purposes of filing I-485 cases in May, we must use the Final Action Date chart.

Green Cards US Immigration Policy Visas - H-1b, L-1, E, O, TN

Trump Executive Order Suspending Immigration

Today, President Trump issued an Executive Order that would suspend the issuance of immigrant visas (green cards) for a period of 60 days. The EO only applies to persons obtaining an immigrant visa from abroad and contains exemptions for a number of categories including healthcare workers. The exemption for healthcare workers may apply only to those entering the US specifically to combat COVID-19 but, that is not clear. With the on-going closure of US Consulates abroad and with immigrant visa numbers exhausted (retrogressed) in many categories until Oct 1, 2020, this EO has very little, if any, effect on employment based immigration. The EO does contain a foreboding announcement that within 30 days, an additional EO may be issued to address non-immigrant visas. Given this Administration’s open disdain for the H-1b and L-1 programs and the repeated efforts to circumvent the current regulations and statutes, this may be an opportunity for them to achieve their goal of reducing legal immigration, just in time for the election.

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CARES Act and Public Charge

Many of our clients who are legally working in the US and paying taxes have inquired as to whether or not receipt of the 1 time payments under the CARES Act i.e. $1200 would be considered the receipt of public benefits and subject them to a finding of being a public charge ? The short answer is no. The American Immigration Lawyers Association (AILA) has provided a more detailed opinion below:

On March 27, 2020, President Trump signed into law the Coronavirus Aid, Relief, and Economic Security (CARES) Act, a $2 trillion dollar economic recovery package. The package offers relief to state and local governments, individuals, small and large businesses, and hospitals affected by the 2019 novel coronavirus (COVID-19) pandemic. In particular, the CARES Act provides for the issuance of one-time payments, called recovery rebates, (or commonly known as “stimulus checks”) to help individuals recover from the economic impacts of the COVID-19 pandemic. Eligible individuals with an adjusted gross income up to $75,000 can receive a one-time payment of $1,200. Married couples filing a joint tax return are eligible to receive a payment of $2,400, as long as their adjusted gross income is less than $150,000. Eligible individuals can also receive an additional $500 for each eligible child under the age of 17.

The recovery rebates are structured as automatically advanced tax credits to be disbursed by the Treasury Department. The DHS final rule on inadmissibility on public charge grounds is clear that tax credits are not taken into account for the purpose of a public charge determination. DHS indicates in its final rule that only public benefits as defined in 8 CFR 212.21(b) will be considered in the public charge inadmissibility determination. 8 CFR 212.21(b) defines a public benefit to include means-tested programs like Medicaid and cash assistance for income maintenance, however 8 CFR 212.21(b) indicates that cash assistance for income maintenance does not include tax credits. Furthermore, USCIS indicates in Volume 8, Part G, Chapter 10 of the USCIS Policy Manual that tax credits are not considered public benefits in a public charge inadmissibility determination.

Similarly, the Department of State (DOS) Interim Final Rule and the Foreign Affairs Manual (FAM) align with the DHS final rule in that the DOS interim final rule and FAM indicate that for the purposes of defining “public benefit”, cash assistance for income maintenance does not include tax credits. AILA’s DOS Liaison Committee is seeking additional clarification from DOS regarding how consular officers will factor in tax credits in public charge determinations at U.S. consulates overseas.

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Trump Immigration Policies Limit RN’s

During this current healthcare crisis and severe nursing shortage it is worth noting that the Trump Administration has imposed significant hurdles on bringing international RN’s into the U.S. These changes have no legal basis but, are simply part of the practice of the WH to limit legal immigration. Bloomberg did a nice summary.

And, if you are looking for a recent study discussing the quality of international RN’s check this out from NYU.

And, more on this situation from Forbes.

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H-1b Cap Lottery Update

The USCIS announced earlier this week that almost 275,000 registrations were submitted by U.S. employers for the 85,000 available lottery spots. This number was an increase of over 33% when compared to last years 201,000 filings. This increase is attributed to the new electronic registration process as well as the robust economy (remember that time only a few weeks ago). Of the 275,000 registrations 46% were for individuals with a US graduate degree.
The period for filing completed petitions opened on April 1 and will end on July 1, 2020. For individuals that need to take advantage of the cap-gap rules, the full 90 day filing window is not applicable and those petitions must be filed prior to the expiration of the OPT EAD.
Given the realities of COVID-19, and the number of lay-offs occurring, it is unlikely that all persons selected in the lottery will have petitions filed for them which will then open up the opportunity for those not originally selected to then be selected and possibly at a time when the economy is in a better state.

Government Agency Actions - USCIS, ICE, etc. Green Cards

USCIS Office Closures Extended and EAD news

Yesterday, the USCIS announced that it was extending the closure of its offices to in person interviews or appointments until May 3rd. If you had an I-485 interview scheduled, you will receive a new notice with a new date.

Earlier this week, the USCIS also announced that for EAD renewals, they will use previously submitted fingerprints instead of requiring new fingerprints (sounds like they watched an episode of Law and Order and realized that fingerprints do not change).

We applaud the accommodations the USCIS is making during this crisis.