19 August 2019
Category News Room
19 August 2019,

BELIEVE Act Addresses Skilled Immigration Needs

Last month, Senator Rand Paul introduced the Backlog Elimination, Legal Immigration, and Employment Visa Enhancement (BELIEVE) Act (S. 2091), a plan intended to compete with the Fairness for High Skilled Immigrants Act (“Fairness Act”), which passed the House of Representatives with overwhelming bipartisan support (224 Democrats and 140 Republicans) on July 10, 2019.

Critics of the Fairness Act question the “fairness” of shifting the backlog from one group to another. One immigration policy analyst has estimated that the wait time for all applicants processing in EB-2 and EB-3 visa categories will be an average of six or seven years after the current backlog is cleared. However, it is likely to take upwards of eight to ten years to clear the current backlog. As a result, the Fairness Act effectively eliminates the option of employment-based immigrant visas for everyone who do not hold an H-1B status since the H-1B is the only category of nonimmigrant visas that permits a stay long enough to complete processing. Consequently, the Fairness Act, by eliminating immediately available EB-1, EB-2 and EB-3 visas, will spike the demand in H-1Bs to unprecedented levels.  Though the Fairness Act specifically set aside employment-based visas for the rest of the world during a three-year transition period, those will be consumed by employment-based petitions already in process that USCIS has not yet adjudicated due to lengthy processing times. Additionally, the “no harm provision,” designed to protects everyone currently waiting for green cards, may be limited to protecting individuals with I-140s approved before October 1, 2019 regardless of when the bill passes. Thus, individuals with PERMs in process, EB-1 Multi-national Managers and EB-2 National Interest Waiver cases would be subject to a 7-10 year waiting period if the bill is enacted as there is no available option to speed up these cases.

The BELIEVE Act addresses the drawbacks of the “Fairness” Act in numerous ways. Like the “Fairness” Act, it would eliminate the per-country caps for employment-based immigration that has adversely impacted Indian and Chinese nationals. However, unlike the “Fairness” Act, the BELIEVE Act ensures the continued availability of employment-based immigrant visas for the rest of the world by:

  1. raising the annual immigrant visa cap from 140,000 to 270,000, nearly double the amount set in 1990;
  2. exempting spouses and unmarried children from the numerical cap; and
  3. exempting shortage occupations, such as Registered Nurses, designated by the U.S. Department of Labor from the numerical cap.

In addition, the BELIEVE Act further protects applicants by granting green cards to children of temporary workers (E, H or L) who have “aged-out” as long as they graduated from a U.S. university and have lived in the U.S. for an aggregate of at least 10 years. Presently, children of temporary workers who turn 21 either have to leave the country or obtain a new visa for themselves since they are no longer dependents of their principal parent’s work status. The BELIEVE Act also provides employment authorization to spouses and minor children of temporary workers, which the current administration is in the process of rescinding, and allow applicants with approved I-140s to file for adjustment of status while they await their priority date to become current, resulting in lawful status and eligibility for employment and travel authorization incident to status.

Comparing the two, the BELIEVE Act provides a more comprehensive, long-term solution to addressing the needs of all skilled immigrant workers. It works to resolve the backlog and advances everyone’s interest. Unfortunately, currently the bill has no co-sponsors. In contrast, the Senate companion bill to the “Fairness” Act (S. 386), currently has 34 co-sponsors. Through awareness and education, we hope the BELIEVE Act will garner additional support and make it through Congress.

ICE Issues Over 3,200 I-9 Audit Notices

In July, Immigration and Customs Enforcement’s (ICE) acting Director, Matthew Albence, announced that the agency had delivered over 3200 Notices of Inspections (NOIs) to businesses. NOIs initiate a government administrative inspection of a company’s Forms I-9 to verify compliance with existing law. The most recent NOIs appeared to have targeted restaurant, food processing, high-tech manufacturing, agriculture, and other industries that employ thousands of workers. Additional notices are likely on the horizon given ICE has requested, and received, additional funding to hire more compliance officers. Once a company receives a NOI, it has three days to produce I-9s for active and terminated employees within the retention period. Employers may be subject to criminal or civil sanctions for violations. Monetary fines are imposed for employers who knowingly hire/continue to employ violations or for violations on Forms I-9 which could cost employers thousands of dollars.

Upon receiving a NOI, the employer must act immediately. Please contact our firm for assistance in the event that a NOI is received or if you wish to proactively audit your records.

USCIS Returns Unselected Fiscal Year 2020 H-1B Cap Subject Petitions

 On August 15th, USCIS has confirmed that it has returned all FY 2020 H-1B Cap-subject petitions. Our firm has been notifying clients of the return of their petitions, and we have been discussing other options for employing individuals who were not accepted into this year’s H-1B lottery. If you have any questions about your H-1B cap case, please contact the legal team member working on your case to confirm the status and discuss other options if necessary.

New Public Charge Grounds Take Effect on October 15, 2019

On August 14th, DHS published a final rule amending its regulations prescribing how the agency will determine whether an alien applying for admission or adjustment of status is inadmissible to the US because he or she is likely at anytime to become a public charge. Under the existing rule, the agency specified that it would not consider use of Medicaid, the Children’s Health Insurance Program (CHIP), or other non-cash programs in public charge determinations. The new rule broadens the programs that the agency will consider in public charge determinations to include previously excluded programs. The new rule redefines a public charge as an “alien who receives one or more 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 cash benefit for income maintenance (federal, state, or local), Supplemental Security income (SSI), Temporary Assistance to Needy Families (TANF), Supplemental Nutrition Assistance Program (SNAP), non-emergency Medicaid for non-pregnant adults over the age of 21, Section 8 Housing Assistance under the Housing Choice Voucher Program, Section 8 Project-Based Rental Assistance. Additionally, the final rule establishes a totality of the circumstances standard for evaluating whether an alien is likely at any time to become a public charge, which weighs factors such as the alien’s age, health, family status, assets, resources, financial status, education and skills, and etc. The final rule applies to applications and petitions postmarked on or after October 15, 2019.

Critics of the rule assert that it will have a chilling effect on families, especially low-income families, throughout the country who chose to forgo essential services to avoid risking their immigration status. Already, thirteen states, led by Washington Attorney General Robert Ferguson, have filed suit to challenge the rule.

New EB-5 Regulations Take Effect on November 21, 2019

On July 24th, DHS published its final rule that makes a number of significant changes to the EB-5 Immigrant Investor Program which will take effect November 21, 2019. The EB-5 investor program provides an avenue towards lawful permanent residence, and eventual citizenship, through investment in a U.S. business. Below is a summary of the changes, that will impact the EB-5 program:

  1. Substantial Increase in Investment Amounts: The standard minimum investment amount is increased from $1 million to $1.8 million, an 80% increase. Furthermore, the minimum will be automatically adjusted based on increases in the Consumer Price Index for all Urban Consumers every five years. The minimum amount for new enterprises doing business in a Targeted Employment Area (TEA), which include rural areas, is also increased by 80% from $500,000 to $900,000. The minimum TEA amount will be automatically adjusted to remain 50% of the minimum non-TEA amount.
  2. TEA Changes: States will no longer have the authority to designate high-unemployment TEAs with USCIS exclusively assuming the function. USCIS will adjudicate a TEA designation at the time the agency reviews an investor’s I-526 petition. Additionally, a narrower definition of TEAs will be in effect, restricting TEAs to the immediate area around an EB-5 project such as a single census tract, contiguous census tracts, or any or all census tracts directly adjacent to such tract(s).
  3. Priority Date Retention: Certain EB-5 investors will be allowed to retain their priority dates from earlier-filed and approved EB-5 petitions unless DHS has revoked a petition’s approval for fraud or willful misrepresentation. Additionally, if there is a later finding by USCIS that the approved petition was based on a material error, the priority date will not be retained. The retention provision does not apply to investors with failed projects and those admitted in the U.S. as conditional permanent residents.
  4. Removal of Conditions: The spouse and children of an E-B5 investor may file their own Form I-829, Petition by Entrepreneur to Remove Conditions on Permanent Resident Status, if they were not included in the principal investor’s petition. A child who has reached the age of 21, or who were married during the conditional residence period, or a former spouse who became divorced during the period may be included in the investor’s petition or file a separate petition to remove conditions. Lastly, if the investor dies, the spouse and children may also file to remove their conditions.

 I-526 petitions filed before the effective date of November 21 will be adjudicated based on eligibility standards currently in effect. Thus, investors who deem the new investment requirements too high, or the TEA changes too restrictive, are encouraged to invest and file their I-526 prior to November 21.

Please contact a member of our legal team if you have questions about the EB-5 program or would like assistance with the process.

Revision of Naturalization Civics Test in the Works

On July 19th, USCIS announced its plans to revise the naturalization test which immigrants must pass to become US citizens. Currently, the test consists of 10 randomly selected questions from a list of 100 questions on areas in American government, history, and civics. 6 of the 10 questions must be answered correctly in order for applicants to pass. There is a 90% passage rate among applicants. Introduced in 1986, the test was last revised in 2008, a decade ago. USCIS expects to set an implementation date for the new test in December 2020 or early 2021.

September 2019 Visa Bulletin

The September 2019 visa bulletin has made progress in some categories while others remain unchanged, or further retrogressed, compared to August 2019 in terms of final action dates for employment-based visa applications. EB-1 Worldwide has advanced to October 01, 2017. EB-1 China has retrogressed to January 01, 2014; EB-1 India is unauthorized for issuance and Philippines has advanced to October 01, 2017. EB-2 Worldwide has advanced to January 01, 2018. EB-2 China saw no movement while India has advanced to May 08, 2009; EB-2 Philippines has advanced to January 01, 2018. EB-3 Worldwide saw no movement. EB-3 China has retrogressed to January 01, 2014.  EB-3 India has retrogressed to July 01, 2005, and EB-3 Philippines saw no movement.

Please note: Our July Newsletter contained a typographic error regarding India’s EB-3 retrogression for the August Visa Bulletin. Instead of “January 01, 2016,” it should have been “January 01, 2006.”


** This newsletter/memo is provided for informational and discussion purposes only. It does not act as a substitute for direct legal contact on an individual basis **

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