28 October 2019
Category News Room
28 October 2019,

Fairness for High Skilled Immigrants Act Blocked Again in Senate and RELIEF Act Introduced

On October 17th, Sen. Mike Lee (R-Utah) attempted another unanimous consent vote in the Senate to pass the Fairness for High Skilled Immigrants Act (S.386) (“Fairness Act”) which failed after Sen. Dick Durbin (D-IL) again objected. Instead of supporting the Fairness Act, Sen. Durbin introduced alternative legislation to resolve the immigrant visa backlog, namely the Resolving Extended Limbo for Immigrant Employees and Families (S.2603) (“RELIEF”) Act. The bill is cosponsored by Senators Patrick Leahy (D-VT) and Mazie Hirono (D-HI). If passed, the RELIEF Act would:

  • Eliminate the current family and employment green card backlog over five years in the order in which applications were filed;
  • Classify spouses and children of LPRs as immediate relatives and exempting derivative beneficiaries of the employment-based petitions from annual green card limits;
  • Protect “aging out” children who qualify for LPR status based on a parent’s immigration petition;
  • Increase the per-country cap for family-sponsored immigrants to 15 percent;
  • Eliminate per-country caps for employment based green cards; and
  • Extend the “hold harmless” clause from H.R. 1044, the House passed iteration of the Fairness Act, that exempts immigrant visa approved prior to enactment from the lifting of country caps to petitions approved for five years after enactment.

The RELIEF Act proposes to resolve the green card backlog by increasing the number of green cards. In contrast, the Fairness Act only eliminates the country caps. As discussed in the past, the Fairness Act’s failure to increase the number of available green cards would result in dramatically increased backlogs for the rest of the world, while trying to bring down wait times for Indian born applicants. Though the RELIEF Act only has two additional co-sponsors at present, it is our hope that the bill will receive more traction in Congress. Nonetheless, the Fairness Act’s momentum cannot be ignored, evidenced by the numerous attempts to pass the Senate version through unanimous consent. Given the uncertainty of the Fairness Act’s passage, our firm continues to recommend commencing PERM filings for any employees eligible to file a PERM who were born in a country other than India or China. Additionally, we also recommend fling all I-140s using Premium Processing until the Fairness Act is passed or defeated. We will continue to follow the various bills and continue to keep our clients updated regarding any movement. Please feel free to contact us with any questions.

 Federal Judges Enjoin USCIS’ New Public Charge Rule

The Department of Homeland Security’s (“DHS”) new public charge regulations, initially scheduled to take effect October 15, were blocked by federal judges in five states. The rule would have redefined what constitutes a public charge. The courts have postponed the effective date of the rule pending final resolution of the cases. Furthermore, most of the court orders issued nationwide injunctions preventing USCIS from implementing the rule. The injunctions preserve the status quo – meaning, applicants may continue to file currently available editions of certain forms including the, I-485, Application to Register Permanent Residence or Adjust Status, I-129, Petition for a Nonimmigrant Worker, and I-539, Application to Extend/Change Nonimmigrant Status.

Although, DHS’ public charge rule was enjoined by federal judges, the Department of State’s (“DOS”) new Public Charge regulation, which added certain definitions, including definitions of public charge, public benefit, alien’s household, and receipt of public benefit, comparable to DHS’s regulation, took effect on October 15. Despite the change, visa applicants are not requested to take any additional steps at this time. The DOS has not announced any changes to current visa application procedures as it is currently seeking approval of Form DS-5540, the State Department’s version of USCIS’s Form I-944, Declaration of Self Sufficiency.

We will continue to update clients on the status of this rule should it be found to be constitutionally introduced.

SEVP Upgrades Limit Student Access to Six Months

On October 11, the Student and Exchange Visitor Program (SEVP) Portal was upgraded to limit students’ access to six months after their OPT ends. The SEVP Portal allows F-1 visa students on post-completion Optional Practical Training (OPT) and STEM OPT to review and update their data such as address, telephone, and employer information. Before the upgrade, students had access to their portal accounts indefinitely. With the upgrade, students will receive an email five months after their OPT authorization ends informing them that Portal access will end in 30 days. An additional SEVP upgrade, expected later this fall, will add another email informing student that their portal access closes in six months when their OPT ends.

Students are advised to print or save a copy of their portal record, including their Event History before losing SEVP access. Please note, these upgrades will not impact a designated school official’s access to a student’s record on SEVIS.

Diversity Visa Registration Now Open

Since October 2, the registration for the Diversity Visa lottery (“DV”), also known as the Green Card Lottery has been open for FY2021. Running until 12:00 PM on Tuesday, November 5, 2019, the DV allows a maximum of 55,000 “diversity immigrants” to obtain permanent residence in United States. More than 23 million applicants and their family members entered last year’s DV lottery. The DV is an alternative to family or employment-based green cards. The purpose of the program is to encourage immigration from countries with low rates of immigration to the US. As a result, countries that already have high US immigration rates, such as China, India, Mexico, the Philippines, and numerous others do not qualify. Applicants from eligible countries are required to have a high school diploma or qualifying work experience. Applicants are not notified of selection. Instead, they must proactively visit the Entrant Status Check website between May 5, 2020 through September 30, 2021 to see if their application was selected.  Individuals who are selected must prove financial support, obtain criminal and medical clearances, and be interviewed by consular officers before they are able to complete their immigration process.

USCIS Replaces “Foreign National” with “Alien” in Policy Manual 

On October 8, USCIS updated its online policy manual, the agency’s repository of immigration policies, by replacing all instances of the term “foreign national” with “alien” to describe individuals who are not citizens or nationals of the United States.  An agency spokesperson noted that it is important for the agency to align its “internal materials with the INA.” Though the term “alien” is used in federal law as a term of art, immigration advocates criticize it as derogatory and dehumanizing based on its extraterrestrial definition. The term “alien” emphasizes differences and institutionalizes “the other.” Advocates assert that this was another step in the administration’s continuing efforts to make the immigration system more hostile towards immigrants.

Trump Proclamation Bars Immigrants Without Health Insurance

On October 4, Donald Trump issued a presidential proclamation that would bar entry of legal immigrants who cannot prove that they will have health insurance coverage within 30 days of entry or have financial resources to pay “reasonably foreseeable medical costs.” Approved health insurance includes, but is not limited to:

  • Employer-sponsored plans;
  • Unsubsidized health plan (subsidized plans under the ACA do not qualify);
  • Medicare;
  • Catastrophic plan;
  • Family members’ plans;
  • Visitor plans; and
  • Other plans deemed adequate coverage by Secretary of Health and Human Services.

Beginning November 3, the proclamation will affect individuals seeking immigrant visas, such as family-based immigrants and winners of the Diversity Visa Lottery, but would not apply to refugees, asylees, people entering as non-immigrants (H-1B, L-1, F-1, etc.), and certain other groups. One analysis concludes that the suspension of entry of immigrants who lack health insurance may reduce legal immigration by 375,000 annually.

To date, the Department of State has not provided guidance regarding what proof of health insurance applicants are expected to produce. Our firm will continue to provide guidance on this issue as it develops.

November 2019 Visa Bulletin

 The November 2019 visa bulletin remains unchanged compared to October 2019 in terms of dates for filing for employment-based visa applications. EB-1 Worldwide remains at July 01, 2019. EB-1 China remains at September 01, 2017; EB-1 remains at March 15, 2017, and EB-1 Philippines remains at July 01, 2019. EB-2 Worldwide remains current. EB-2 China remains at August 01, 2016 while India remains at July 01, 2009; EB-2 Philippines remains current. EB-3 Worldwide remains current. EB-3 China remains at March 01, 2017. EB-3 India remains at February 01, 2010, and EB-3 Philippines remains current.

** 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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