Senate Bill 386 Update. December 19, 2019

On December 18, 2019 both Senator Durbin and Senator Lee announced on the Senate floor that they had reached a bipartisan agreement to move S.386/HR1044 forward. While not officially presented yet, the unofficial draft of the proposed legislation as outlined by both Senator Durbin and Senator Lee in their speeches yesterday provides what we see as four very important issues as they relate to employment visas. 1. H1B 50/50 Rule; 2. Adjustment of Status (I-485 applications); 3. Dependent Age Out; and 4. Effective date of the law.

  1. The proposed legislation contains what Senator Durbin referred to as the 50/50 Rule. The 50/50 Rule would severely impact primarily IT workers from India who are working for outsourcing companies. The 50/50 Rule applies to any company that has more than 50 employees, of which more than 50% are on an H1B. The rule will have a significant impact on these companies to both bring new IT workers to the U.S. on H1B visas and to extend the H1B visas of their current employees.
  2. With respect to the effect that the bill will have on I-140 employment based applicants there is both bad news and good news. The bad news is that if the bill is signed into law it will take a considerably longer time for the actual green card to be issued. The good news is an immigrant employee will be able to file an I-485 adjustment of status on the earlier of two dates: 1. Upon approval of the I-140 petition; or 2) after the expiration of 270 days from the time of filing of the petition. Senator Durbin emphasized that he wanted to make sure that qualified immigrant workers would be able to get their Employment Authorization and Advance Parole so they would have the freedom to change jobs and travel while they wait for a green card to become available.
  3. The proposed bill also proposes that because of the delay that will be caused by the implemenation of this bill, dependents of the petitioner will not age out. Currently children of an approved petitioner can age out if a green card is not available before the dependent turns 21. The proposed changes will eliminate age out.
  4. Finally, the bill will no longer be retroactive. The Bill originally had an effective date of September 30, 2019. The effective date will be the date of enactment, the day the President signs it into law or if not signed within 10 days and Congress is in session.

While we believe Senator Durbin has done a tremendous job in helping to alleviate some of the concerns of people hoping to obtain a green card, we feel that the H1B changes will bring a significant amount of pressure to bear on other Senators by the lobby of the IT consultant industry. It is highly probable that the bill will be blocked yet again, before it makes it to the Senate floor for possible unanimous consent. While it is prudent to move forward in a timely manner on your employment based green card applications so as to get your green card as soon as possible, we do not feel that S386 as it stands now will be as devastating for new applicants from countries other than India and China as it was first thought it would.

USCIS Announces Implementation of H1-B Electronic Registration

U.S. Citizenship and Immigration Services announced that it is implementing the registration process in the next H-1B lottery. Employers seeking to file H-1B cap-subject petitions for the fiscal year 2021 cap, including those eligible for the advanced degree exemption, must first electronically register and pay the associated $10 H-1B registration fee.

Employers seeking H-1B workers subject to the cap will now be required to complete a registration process. USCIS will open an initial registration period from March 1 through March 20, 2020. The H-1B random selection process, if needed, will then be run on those electronic registrations. Only those with selected registrations will be eligible to file H-1B cap-subject petitions.

“By streamlining the H-1B cap selection process with a new electronic registration system, USCIS is creating cost savings and efficiencies for petitioners and the agency, as only those selected will now be required to submit a full petition,” said USCIS Deputy Director Mark Koumans. “The agency completed a successful pilot testing phase, which included sessions with industry representatives, and implementation of the registration system will further the goal of modernizing USCIS from a paper-based to an online-filing agency.” 

USCIS will post step-by-step instructions on how to complete the registration process on its website along with key dates and timelines. USCIS may determine it is necessary to continue accepting registrations, or open an additional registration period, if it does not receive enough registrations and subsequent petitions projected to reach the numerical allocations.

The $10 H1-B registration fee established under the final rule is effective on Dec. 9, 2019, and will apply to registrations submitted during the initial and future registration periods.

USCIS Proposed New Rule on Fees

The Homeland Security Department today issued a proposed rule titled “U.S. Citizenship and immigration Services Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements”. The proposed rule is open for comment until December 16, 2019 after which it can be implemented. The good news is that for NIW petitions the fees may actually be reduced. The I-140 will be reduced by $155 to $545 down from $700. The I-485 has a small proposed reduction from $1140 to $1120. However, the cost to file an I-485 for children will increase significantly from $750 to $1120, the same as an adult. The Biometric fee is also being reduced from $85 to $30.

If the proposed rule is put into effect, the USCIS fees for an NIW and an AOS will look like this:

I-140 – $545

I-485 – $1150 (with Biometric) for each individual, adult or child

Below is Table 19 from the Proposed Rule which sets forth all proposed fee changes:

Table 19 depicts the current and proposed USCIS fees for immigration benefit requests and biometric services. For a more detailed description of the basis for the changes described in this table, see Appendix Table 3 in the FY 2019/2020 Fee Review Supporting Documentation accompanying this proposed rule.

Immigration benefit requestCurrent feeProposed feeDelta ($)Percent change
I-90 Application to Replace Permanent Resident Card$455$415−$40−9%
I-102 Application for Replacement/Initial Nonimmigrant Arrival-Departure Document4454904510
I-129 Petition for a Nonimmigrant worker460N/AN/AN/A
I-129H1 I-129 H-1B—Named Beneficiaries46056010022
I-129H2A I-129 H-2A—Named Beneficiaries46086040087
I-129H2B I-129 H-2B—Named Beneficiaries46072526558
I-129L Petition for L Nonimmigrant Worker46081535577
I-129O Petition for O Nonimmigrant Worker46071525555
I-129CW, I-129E&TN, and I-129MISCV Petition for a CNMI-Only Nonimmigrant Transitional Worker; Application for Nonimmigrant Worker: E and TN Classification; and Petition for Nonimmigrant Worker: H-3, P, Q, or R Classification.46070524553
I-129H2A I-129 H-2A—Unnamed Beneficiaries460425−35−8
I-129H2B I-129 H-2B—Unnamed Beneficiaries460395−65−14
I-129F Petition for Alien Fiancé(e)535520−15−3
I-130 Petition for Alien Relative535555204
I-131 Application for Travel Document575585102
I-131 Travel Document for an individual age 16 or older135145107
I-131 I-131 Refugee Travel Document for a child under the age of 161051151010
I-131A Application for Carrier Documentation5751,01043576
I-140 Immigrant Petition for Alien Worker700545−155−22
I-191 Application for Relief Under Former Section 212(c) of the Immigration and Nationality Act (INA)930800−130−14
I-192 Application for Advance Permission to Enter as Nonimmigrant183 585/9301,415830/485142/52
I-193 Application for Waiver of Passport and/or Visa5852,7902,205377
I-212 Application for Permission to Reapply for Admission into the U.S. After Deportation or Removal9301,04011012
I-290B Notice of Appeal or Motion675705304
I-360 Petition for Amerasian Widow(er) or Special Immigrant435455205
I-485 Application to Register Permanent Residence or Adjust Status184 1,140/7501,120−20/370−2/49
I-526 Immigrant Petition by Alien Entrepreneur3,6754,0153409
I-539 Application to Extend/Change Nonimmigrant Status370400308
I-589 Application for Asylum and for Withholding of Removal05050N/A
I-600/600A Petition to Classify Orphan as an Immediate Relative/Application for Advance Processing of an Orphan Petition775810355
I-600A/I-600 Supp. 3 Request for Action on Approved Form I-600A/I-600N/A405N/AN/A
I-601 Application for Waiver of Ground of Excludability930985556
I-601A Application for Provisional Unlawful Presence Waiver63096033052
I-612 Application for Waiver of the Foreign Residence Requirement (Under Section 212(e) of the INA, as Amended)930525−405−44
I-687 Application for Status as a Temporary Resident under Section 245A of the Immigration and Nationality Act1,1301,13000
I-690 Application for Waiver of Grounds of Inadmissibility715770558
I-694 Notice of Appeal of Decision890725−165−19
I-698 Application to Adjust Status From Temporary to Permanent Resident (Under Section 245A of the INA)1,6701,615−55−3
I-751 Petition to Remove Conditions on Residence59576016528
I-765 Application for Employment Authorization4104908020
I-800/800A Petition to Classify Convention Adoptee as an Immediate Relative/Application for Determination of Suitability to Adopt a Child from a Convention Country775810355
I-800A Supp. 3 Request for Action on Approved Form I-800A385405205
I-817 Application for Family Unity Benefits600590−10−2
I-821D Consideration of Deferred Action for Childhood Arrivals (Renewal)0275275N/A
I-824 Application for Action on an Approved Application or Petition465500358
I-829 Petition by Entrepreneur to Remove Conditions on Permanent Resident Status3,7503,9001504
I-881 Application for Suspension of Deportation or Special Rule Cancellation of Removal185 285/5701,8001,515/1,230532/216
I-910 Application for Civil Surgeon Designation785650−135−17
I-924 Application for Regional Center Designation Under the Immigrant Investor Program17,79517,79500
I-924A Annual Certification of Regional Center3,0354,4701,43547
I-929 Petition for Qualifying Family Member of a U-1 Nonimmigrant2301,5151,285559
I-941 Application for Entrepreneur Parole1,2001,20000
N-300 Application to File Declaration of Intention2701,3201,050389
N-336 Request for a Hearing on a Decision in Naturalization Proceedings7001,7551,055151
N-400 Application for Naturalization640/3201,17053083
N-470 Application to Preserve Residence for Naturalization Purposes3551,6001,245266
N-565 Application for Replacement Naturalization/Citizenship Document555545−10−2
N-600 Application for Certificate of Citizenship1,1701,015−155−13
N-600K Application for Citizenship and Issuance of Certificate Under Section 3221,170960−210−18
USCIS Immigrant Fee220200−20−9
G-1041 Genealogy Index Search Request65240175269
G-1041A Genealogy Records Request65385320492
Biometric Services8530−55−65

Below is a link to the Proposed New Rule in its entirety:

https://www.federalregister.gov/documents/2019/11/14/2019-24366/us-citizenship-and-immigration-servihttps://www.federalregister.gov/documents/2019/11/14/2019-24366/us-citizenship-and-immigration-services-fee-schedule-and-changes-to-certain-other-immigration

If you have any questions or would like a consult on your NIW case please do not hesitate to contact us.

November 2019 Visa Bulletin Released

The Visa Bulletin for November was just released and the priority dates have not changed from October. For EB1 petitioners the priority date for China is September 1, 2017 and remains March 15, 2017 for India. All other countries are still July 1, 2019. For EB2 all countries except China and India remain “Current” and China is still August 1, 2016, while India remains July 1, 2009.

Public Charge Enjoined By Federal Court

The U.S. Federal Court for the Southern District of New York issued an injunction against Trumps Public Charge Rule. The injunction prohibits USCIS from requiring any forms that require additional public charge information. The proposed “New” I-485 and the New I-944 were going to require additional information relating to the receipt of public assistance and other financial resources. Effective today, Monday October 14, 2019 all I-485 forms filed with USCIS, until further notice, will remain the standard I-485. If you would like to get your I-485 filed while the public charge rule is still enjoined please let us know.

UPDATE ON SENATE BILL 386 (HR 1044)

A few minutes ago Senator David Perdue blocked “Unanimous Consent” in the Senate. As mentioned in our previous blog, it only takes one Senator to block unanimous consent. This means that Senate Bill 386 did not pass unanimous consent and must be debated prior to moving on to a vote of the Senate, unless unanimous consent can be reached in the future.

OCTOBER 2019 VISA BULLETIN – HR 1044 and S 386

The October Visa Bulletin was issued today and the applicable filing dates for EB-2 Adjustment of Status for most countries are now current and the EB-1 priority dates, while still not current, have also moved forward considerably.   Additionally, USCIS just announced that it will be using the “Dates For Filing” chart (as opposed to the “Final Action Dates”) for determining when we can file your Adjustment of Status application.  This is great news! Also, today it was announced that Senate Bill 386 many pass the Senate Floor through Unanimous Consent. I will address both these important happenings below.

EB-2 PRIORITY DATES FOR OCTOBER 2019

ALL COUNTRIES: The October Visa Bulletin lifted the retrogression for ALL COUNTRIES with the exception of China and India.

CHINA: The applicable filing date for China is now August 1, 2016.

INDIA: The applicable filing date for India is now January 1, 2015.

EB-1 PRIORITY DATES FOR OCTOBER 2019

ALL COUNTRIES EXCEPT LISTED: The applicable filing date for all countries is now July 1, 2019 which is a considerable improvement. 

CHINA: The applicable filing date for China is now September 1, 2017.

INDIA:  The applicable filing date for India is now March 17, 2017.

DATES FOR FILING OF EMPLOYMENT-BASED VISA APPLICATIONS

Employment-
based
All Chargeability
Areas Except
Those Listed
CHINA-
mainland 
born
EL SALVADOR
GUATEMALA
HONDURAS
INDIA MEXICO  PHILIPPINES 
1st 01JUL19 01SEP17 01JUL19 15MAR17 01JUL19 01JUL19
2nd C 01AUG16 C 01JUL09  C C
3rd C 01MAR17 C 01FEB10 C C
Other Workers C 01AUG08 C 01FEB10 C C
4th C C 15AUG16 C C C

WHAT DOES THIS MEAN?

Your priority date for NIW EB-2 and EB-1 is established the date your I-140 petition is filed.  Your priority date must be before the date listed on the chart above in order for us to file your Adjustment of Status application.

In summary:

  • If you have an approved I-140 petition in the EB-1 or EB-2 category with a current priority date, it is time to file your I-485 adjustment of status application;
  • If you have a pending I-140 in the EB-1 or EB-2 category with a current priority date, you may interfile your I-485 adjustment of status application; or
  • If you are filing an I-140 petition in the EB-1 or EB-2 category and want to file both the I-140 petition and I-485 application concurrently, you can now do so once again.

SENATE BILL 386 and HR 1044

The news today that Senate Bill 386 would be brought forward on Thursday Sept. 19 when Sen. Rand Paul announced he would lift his block of “Unanimous Consent” caused quite a bit of concern among some of our clients and excitement among others. What all our clients need to understand is what “Unanimous Consent” means. Unanimous consent does not mean that the law will be passed, it simply means that it can move the bill forward on the Senate floor toward a vote without Senate debate. Sen. Paul removing his hold/block does not mean that another Senator will not block Senate Bill 386. For unanimous consent to pass all of the 100 Senators must consent to move the legislation on without further debate. If no single Senator blocks consent, then it would go to the floor to be voted on at some point in the future. To pass, the law requires a majority vote of 51 to pass. While it is premature to know with any certainty what will happen, it is a prudent time for citizens of all countries, including India and China, who are considering filing for an Employment Based green card to plan for a possible change in the law.

With the uncertainty of House Bill HR1044 and Senate Bill S386, as well as the new rule on public charges and the current immigration climate, great care needs to be taken in preparing the I-485 Adjustment of Status application prior to filing. The Dunn Law Firm was founded over 100 years ago and has one of the most experienced immigration law teams in the U.S. The team is one of the countries most experienced with filing I-485 Adjustment of Status applications and we are ready to help you file your I-140 and/or I-485 Adjustment of Status application.  We offer extremely prompt and accurate processing and personal service to each application and you are always able to speak to or email your Attorney or Paralegal directly when needed.  The timing of when to file your I-485 can have a significant impact on your current immigration status and can affect your future plans. We recommend that you contact our office immediately to discuss your situation in detail.

 Please contact our office at (309) 828-6241 or email stacy@dunnlaw.com if you are ready to file your I-140 and/or I-485.  You may also visit our website at www.nationalinterestwaivers.com to obtain more information.

H.R. 1044 – Fairness for High-Skilled Immigrants Act

On July 10, the U.S. House of Representatives passed the Fairness for High-Skilled Immigrants Act of 2019 (H.R. 1044), which proposes to eliminate the per-country limit for all employment-based immigrants and increase the per-country limit for all family-sponsored immigrants from 7 percent to 15 percent.

Proposed Policy Change Relating to Government Benefits May Make it More Difficult for Individuals to Obtain Adjustment of Status Approvals

BACKGROUND

There exists a long-standing rule in the United States that for an individual to be permitted to immigrate to the U.S., that individual must be able to financially support himself or herself.  In other words, individuals who are or would be primarily dependent upon U.S. government assistance would not be eligible for immigration.

Legislatively, a person falling into that category has been designated a “public charge”.  More simply put, a public charge is an individual who is not capable of financially supporting himself or herself and who instead relies upon the U.S. government to do so.

PROPOSED RULE

In October 2018, the U.S. Department of Homeland Security (“DHS”) proposed to expand the definition of a “public charge”.  [CIS No. 2499-10; DHS Docket No. USCIS-2010-0012, Oct. 10, 2018]  More specifically, a series of proposed rules was published that, among other things, expanded the scope of what levels of government financial assistance – or “public benefits” – would render an individual a public charge.

The stated purpose of the proposed rules is that the “DHS seeks to better ensure that applicants for admission to the United States and applicants for adjustment of status . . . who are subject to the public charge ground are self-sufficient, i.e. do not depend on public resources to meet their needs, but rather rely on their own capabilities and the resources of their family, sponsor, and private organizations.”

The proposed rules would require that foreign nationals who are seeking an adjustment of status “demonstrate that they have not received, are not currently receiving, nor are likely to receive, public benefits as defined in the proposed rule.” Should they be unable to make such a showing, these individuals would not be eligible for permanent U.S. residence.

The proposed rules are complex, multi-layered, and span 183 pages in the Federal Register.

HOW DOES THE PROPOSED CHANGE POTENTIALLY AFFECT FOREIGN NATIONALS SEEKING PERMANENT U.S. RESIDENCY?

If these proposed rules are enacted and the definition of a public charge is broadened, additional types of government assistance would be considered in making the determination whether an individual is considered a public charge.  This subsequently would mean that individuals who are seeking an adjustment of status will have to meet a higher threshold to show that they are not likely to become a public charge.

Undoubtedly, the proposed rules will allow a fewer number of individuals – particularly those receiving any kind of government benefits – to be eligible for an adjustment of status or a visa.  In fact, as the new rules propose to broaden the scope of what public benefits would bar a person from an adjustment of status, commentators have estimated that this could affect thousands of prospective foreign nationals seeking to become permanent residents.

HOW CAN THOMAS J. ARKELL AND DUNN LAW FIRM HELP?

Thomas J. Arkell provides valuable advice to clients regarding how the previous or current use of public benefits could affect their I-485 Adjustment of Status (“AOS”) application.  Should these proposed rules go into effect, Mr. Arkell’s twenty years of immigration experience will undoubtedly be useful in navigating the complexities of the rules.

As discussed previously in this blog, taking every precaution to ensure that an AOS petition is approved has become magnified now that a petitioner who receives an outright denial of an AOS petition can possibly be subject to the issuance of a Notice to Appear, which could then lead to subsequent deportation.

Mr. Arkell has provided vital legal advice to thousands of foreign nationals and – having gone through the Immigration process himself – understands the magnitude of proper legal guidance at this important time in his clients’ lives. If you would like to contact Dunn Law Firm to discuss your credentials or to discuss a FREE consultation with Mr. Arkell, click HERE.

We’ve Launched A New, Client-Focused Website

Dunn Law Firm has always taken great pride in a personalized approach to its clientele. Senior Immigration Partner, Thomas J. Arkell, possesses a deep understanding of the permanent U.S. resident and citizenship processes, having gone through both himself. He also understands the human element of the visa process and knows first-hand the importance of efficiency in completing the NIW application, both for peace of mind and so his clients can receive their approval that much more quickly.

We have always felt that our website should reflect this understanding and Mr. Arkell’s approach. Every element should be conceived and executed with the needs of the client front-and-center. That is why we are pleased to announce that we have just completed a major redesign of the site.

Aimed at improving navigability and making information related to the National Interest Waiver easier to locate, our redesign significantly changes the look and feel of NationalInterestWaivers.com. From the beginning, our goal was to make things more welcoming and more user-friendly. That’s why one of the biggest changes involved streamlining how we present information.

On our homepage, details about pricing, approval rate, and our money-back guarantee are now positioned front-and-center. It’s also much easier to request a free consultation with Mr. Arkell, and our updated payment plans are organized so they are simpler to understand. We have also significantly expanded our section on client testimonials and added a great deal more content to our approvals page.

Together, these changes make it easier to understand what we have done for our past clients, and what we can do for prospective ones. They also allow applicants to form a more comprehensive understanding of what’s necessary to qualify for a National Interest Waiver. And finally, they more definitively show what sets us apart from our competitors – our knowledge, expertise, and dedication to helping each and every one of our clients thrive. From the start, our commitment was and always will be to our clients. Mr. Arkell and his Immigration Team possess both the knowledge and the experience necessary to help people avoid the challenging, cumbersome labor certification process by successfully petitioning for a National Interest Waiver. The website redesign is just one more way for us to demonstrate our commitment – and one more way we can help some of the best and brightest enter a country where they can use their exceptional talents and truly excel.