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.
Trump Immigration Executive Order
/0 Comments/in Uncategorized /by Jim ArkellUPDATE April 22, 2020 President Trump this evening signed an executive order banning the issuance of green cards to foreign nationals who are outside of the country. The order is effective as of 11:59 p.m. eastern daylight time on April 23, 2020. The order excludes persons in the U.S. who are adjusting their status. If you have filed or are filing an adjustment of status, then you are exempt from the ban. The order also does not restrict the filing of NIW, OPR or EB1 petitions. Although the ban targets individuals who are out of the country, the ban excluded those who are seeking to enter through the National Interest or those who are medical professionals or are seeking to perform medical research. Trump indicated that he may modify the order in the future so we will monitor the situation closely and update again if there are any changes. BOTTOM LINE: THE EXECUTIVE ORDER WILL HAVE NO EFFECT ON ANY OF OUR CLIENTS.
Here is a list of the exceptions to the ban:
(i) any lawful permanent resident of the United States;
(ii) any alien seeking to enter the United States on an immigrant visa as a physician, nurse, or other healthcare professional; to perform medical research or other research intended to combat the spread of COVID-19; or to perform work essential to combating, recovering from, or otherwise alleviating the effects of the COVID-19 outbreak, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees; and any spouse and unmarried children under 21 years old of any such alien who are accompanying or following to join the alien;
(iii) any alien applying for a visa to enter the United States pursuant to the EB-5 Immigrant Investor Program;
(iv) any alien who is the spouse of a United States citizen;
(v) any alien who is under 21 years old and is the child of a United States citizen, or who is a prospective adoptee seeking to enter the United States pursuant to the IR-4 or IH-4 visa classifications;
(vi) any alien whose entry would further important United States law enforcement objectives, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees, based on a recommendation of the Attorney General or his designee;
(vii) any member of the United States Armed Forces and any spouse and children of a member of the United States Armed Forces;
(viii) any alien seeking to enter the United States pursuant to a Special Immigrant Visa in the SI or SQ classification, subject to such conditions as the Secretary of State may impose, and any spouse and children of any such individual; or
(ix) any alien whose entry would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.
UPDATE: April 21, 2020 President Trump walked back the extent of the ban suggested by his prior tweet. President Trump stated in his briefing that the immigration ban would only be for 60 days and would only target green card applications. From what we can tell, the green card applications that he is referring to would be limited to people residing outside of the U.S. We will update again once we learn more.
Late on April 20, 2020, President Trump tweeted, “In light of the attack from the Invisible Enemy, as well as the need to protect the jobs of our GREAT American Citizens, I will be signing an Executive Order to temporarily suspend immigration into the United States!”
As of this morning, Whitehouse officials were working on a draft of an executive order, with the expectation that it would be ready for Trump’s signature by the end of the week. Right now, it is just speculation as to what the order will state and what restrictions will be put in place. However, the order is expected to be temporary.
While the executive order is likely to issue a temporary ban on the issuance of new visas, it most likely will not prohibit the submission of new applications within the United States or the processing of NIW, OPR or EB1A petitions. We are continuing to work hard to prepare and file our client’s cases with the USCIS. We are hopeful that the Adjustment of Status cases already on file prior to the executive order will continue to be processed.
We will update this blog as more news becomes available.
Senate Bill 386 Update. December 19, 2019
/0 Comments/in Uncategorized /by Jim ArkellOn 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.
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
/0 Comments/in Uncategorized /by Jim ArkellU.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
/0 Comments/in Uncategorized /by Jim ArkellThe 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.
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
/0 Comments/in Uncategorized /by Jim ArkellThe 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
/0 Comments/in Uncategorized /by Jim ArkellThe 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)
/0 Comments/in Uncategorized /by Jim ArkellA 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
/0 Comments/in Uncategorized /by Jim ArkellThe 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
based
Areas Except
Those Listed
mainland
born
GUATEMALA
HONDURAS
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:
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
/0 Comments/in Uncategorized /by Dunn Law FirmOn 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
/0 Comments/in Uncategorized /by Dunn Law FirmBACKGROUND
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.