On May 31, 2019, the Department of State updated its immigrant and nonimmigrant visa application forms to request additional information, including social media identifiers, from most applicants for U.S. visas worldwide. In the newly-updated forms, applicants are now required to provide their username(s) for each social media platform. This information is collected via a drop-down list of the most common platforms. Applicants are prompted to choose all those that are either currently used or have been used within a five-year period. Please note that passwords for these accounts are not required and should not be provided. Further questions request the visa applicant's current email and phone number, as well as a list of additional email addresses and phone numbers used in the past five years. If applicants are unable to recall precise details, they may insert "unknown," but should be prepared for the possibility of additional screening during the visa process. These questions were added as a result of President Trump’s March 6, 2017 Memorandum on Implementing Heightened Screening and Vetting of Applications for Visas and other Immigration Benefits.  

Advocacy groups have expressed concern over the impact of these questions and related screening on privacy and freedom of speech. This week, an incoming freshman at Harvard University was turned away at Boston’s Logan’ Airport, reportedly due to political social media posts made by friends. This incident and others like it demonstrate that the social media screening does not end with the State Department, but continues at the border and beyond. Over the past several years, Customs and Border Protection (CBP) has increased screening of electronic devices carried by all passengers (U.S. citizens and foreign-born visitors). For more information on social media screening, you can review a report from the Brennan Center for Justice at NYU.  

Under the Immigration and Nationality Act, an individual may be denied admission into the United States, or adjustment of status to lawful permanent resident status (i.e. a green card), if he or she is “likely at any time to become a public charge”. On August 14, 2019, the U.S. Department of Homeland Security (DHS) published a final rule amending the regulations regarding how DHS will determine whether an alien is inadmissible to the United States based on his or her likelihood of becoming a public charge at any time in the future. This rule also makes certain nonimmigrant aliens in the United States who have received designated public benefits above the set threshold ineligible for change of status and extension of stay if they received the benefits since obtaining nonimmigrant status.

As part of this lengthy new regulation, DHS has revised the definition of “public charge” to incorporate consideration of additional types 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 also redefines the term “public charge” to mean an individual 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. However, the rule exempts, among others, refugees, asylees, and members of the military and their families. The rule also exempts Medicaid benefits received in an emergency, received by aliens under age 21, and those received by pregnant women and women within 60 days of the last day of pregnancy.  

Based on the final rule, USCIS adjudicators will apply a complex “totality of the circumstances” test which weighs the foreign national’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, to determine whether the foreign national is more likely than not to receive one or more public benefits at any time in the future. I-485 applicants who are subject to public charge determinations will be required to prepare and submit Form I-944, Declaration of Self-Sufficiency along with their I-485 filings.  

FAQs can be found on the USCIS website. The effective date of the new regulation, if not delayed by litigation, is October 15, 2019, and it will only be applied to applications and petitions filed on or after that date. Furthermore, USCIS has clarified that it will only penalize applicants / beneficiaries for receipt of benefits which would not have subject them to the previous public charge rule (e.g. SNAP, Medicaid) if those benefits are received on or after October 15, 2019. 

This summer, Immigration and Customs Enforcement (ICE) began conducting site visits to employers where F-1 trainees work pursuant to STEM OPT work authorization. ICE was authorized to make such visits by the May 2016 revision to the regulations governing the STEM OPT program. ICE inspectors may ask to tour the premises, view the F-1 trainee’s workspace, interview company personnel, and review and discuss the F-1 trainee’s training plan (as submitted on Form I-983) vs. implementation. The officer may also request evidence used by the employer to assess the wages of U.S. workers in similar roles, to ensure that U.S. workers are not adversely impacted by the STEM OPT worker’s employment. Requests may be made by phone or email prior to or in lieu of a physical site visit. More information about STEM OPT Employer Site Visits can be found on the DHS website. 

Unless the visit is due to a complaint or concern, ICE should provide at least 48 hours’ notice prior to a site visit. If you employ F-1 students on STEM OPT and ICE visits your office or contacts you regarding a visit, please contact an RSST attorney.  

Treaty Trader (E-1) and Treaty Investor (E-2) visas are available to citizens of countries with which the United States maintains treaties of commerce and navigation, or where Congress has enacted legislation. In August 2018, President Trump signed into law S. 2245, the Knowledgeable Innovators and Worthy Investors Act (KIWI Act), thereby expanding the E-1 and E-2 visa category to certain New Zealand applicants and provides for reciprocal treatment of U.S. nationals.

Starting June 10, 2019, eligible New Zealand companies and nationals may apply for E-1 treaty trader and E-2 treaty investor temporary visa status. Eligible New Zealand Nationals who are already in the U.S. in a lawful nonimmigrant status (or a qualifying employer) can now file Form I-129, Petition for a Nonimmigrant Worker, to request a change of status to E-1 or E-2 classification. Spouses and unmarried children (under the age of 21) of E-1 and E-2 nonimmigrants are also permitted to seek a change of status to E-1 and E-2 classification as dependents by filing an I-539, Application to Extend/Change Nonimmigrant Status.

In April 2019, USCIS celebrated the second anniversary of the Buy American and Hire American (BAHA) Executive Order. Since President Trump signed BAHA in April 2017, USCIS has implemented rules, policy memoranda and operational changes that have affected the overall immigration climate. 

During an April 18, 2019 Listening Session, USCIS looked back on what it considers to be the accomplishments of BAHA. Highlights of the session include stopping abuse by companies seeking employment-based immigration benefits, particularly H-1B abuse at third-party worksites and updated policy guidance instructing adjudicators to apply the same level of scrutiny to both initial and extension petitions. USCIS also highlighted strengthened fraud detection and prevention efforts for employment-based visa programs, including new tip lines for H-1B and H-2B programs (reportedly resulting in over 2,300 H-1B fraud leads as of March 31, 2019), enhancing the targeted site visit program to focus on more likely areas of H-1B fraud and abuse (with site visits resulting in 36% of H-1B and nearly 18% of L-1B fraud determinations in FY2018), and increasing information-sharing with the Department of Justice to help deter, detect and investigate discrimination against U.S. workers. Finally, the session highlighted increased transparency around the operation of employment-based visa programs, expanding the data released to the public – including a new H-1B employer data hub. USCIS reiterated that the Service is committed to carrying out the BAHA Executive Order and noted that it still has much more to do to fully implement the Order. 

On July 24, 2019, USCIS published a final rule making significant changes to the EB-5 Immigrant Investor Program. The final rule is scheduled to take effect on November 21, 2019, and will make the following major revisions to the EB-5 program:

On July 10, 2019, the U.S. House of Representatives passed the Fairness for High-Skilled Immigrants Act of 2019 (H.R. 1044) by an overwhelming majority. If enacted, the bill would eliminate the per-country limit for all employment-based immigrants and increase the per-country limit for all family-sponsored immigrants from 7% to 15%. The legislation would move green card wait times forward for foreign nationals who have waited the longest in green card lines, particularly those from India and China awaiting a visa in the EB-2, EB-3 and EB-5 visa backlogs. Negative effects will include retrogression of employment-based immigrant visa categories worldwide. 

Before becoming law, this bill will need to be passed by the Senate, go through a reconciliation process, then go to the President for approval. Given that many changes are likely to occur in that time (and the bill may never make it to the President), our office is not prepared to discuss or advise on the potential impact of the bill on particular cases at this stage of the legislative process.

It’s been some time since we provided an update on the DACA program. While the fate of DACA remains uncertain, several clients have recently asked about the pending litigation. As background, in September 2017, the Trump Administration announced that it was ending the Deferred Action for Childhood Arrivals (DACA) program, an Obama-era program which was designed to protect undocumented immigrants brought to the U.S. as children. A number of lawsuits were then filed against the Administration for terminating DACA unlawfully. As a result, three nationwide injunctions were issued by U.S. District Courts (specifically: California, New York and the District of Columbia), requiring the Administration to maintain key aspects of DACA, including permitting those already enrolled to renew their protected status and work authorization. 

On June 28, 2019 the U.S. Supreme Court agreed to review the legal challenges. The Supreme Court will likely hear oral argument on these cases in the fall or winter of 2019. A decision is expected no later than June 2020. The Supreme Court did not “stay” any of the lower courts’ orders, which means that DACA recipients who currently have or previously had DACA can continue to submit applications for renewal. 

There is a separate lawsuit challenging the legality of DACA. Texas v. Nielsen remains pending with the U.S. District Court for the Southern District of Texas. The court issued an opinion and order rejecting the plaintiff states’ motion for a preliminary injunction to block any further DACA grants. An order has been issued, setting a hearing on the states’ summary judgment motion for October 28, 2019.

The Chief of the Visa Control and Reporting Division, U.S. Department of State (DOS) provides periodic analyses of current immigrant visa trends and future projections, beyond the basic visa availability updates provided in the monthly Visa Bulletin. Following is a synopsis of the current trends in immigrant visa number availability, as of September 2019: 

 

PLEASE NOTE: EB-3 clients should still be prepared to attend scheduled adjustment of status interviews, as failure to attend could result in a denial of the adjustment of status application. USCIS may elect to reschedule interviews while visa numbers are unavailable, but it is likely that the interviews will proceed. In that case, if the officer deems that the adjustment of status is approvable s/he will request a visa number in preparation for case approval. The request will go into a “pending demand file” at Department of State; once the applicant’s priority date becomes current again, a visa number will automatically be authorized to USCIS so that the I-485 application may be approved.

Interviews for I-485 and Naturalization Applications: On a somewhat-related note, USCIS announced on June 17 an effort to reduce I-485 and Naturalization application processing times by shifting workloads between field offices. This means that applicants may receive an interview appointment notice or RFE from a field office outside of their normal jurisdiction, and may be scheduled to appear for an interview at a different field office (e.g. applicants in the Boston area may be scheduled to appear in Lawrence, MA or Manchester, NH). Our office has not yet seen any interviews scheduled outside the standard jurisdiction, but wanted to make clients aware of the potential for this.  

Background:

There are five preference categories for the allotment of employment-based immigrant visa numbers, and four preference categories for family-based immigrant visa numbers. For purposes of this newsletter, we are including only the categories most applicable to our business clients. For additional information on other preference categories not included below, please contact the attorney with whom you work, or visit the State Department's website.  

Employment-Based Preference Categories

 

 

Family-Based Preference Category

Immigrant visa numbers are available only to an applicant whose priority date is earlier than the cut-off date listed in the charts below. "C" means current, i.e., numbers are available for all qualified applicants.   

Following are the relevant Visa Bulletin Final Action Dates for September 2019 (i.e. dates that allow an application to be adjudicated):

While processing times at USCIS and the Department of Labor (DOL) fluctuate, both agencies attempt to adjudicate cases on a first in - first out basis and in the order in which they were received. Based on reported processing times from those agencies and recent case adjudications at RSST Law Group, following are the average processing times for the most commonly-filed employment-based applications and petitions: