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US DEPARTMENT OF HOMELAND SECURITY IMPLEMENTS NEW “PUBLIC CHARGE” RULE

OnAugust 14, 2019 the Department of Homeland Security (DHS) announceda new “public charge” rule.  The rule wasset to into effect on October 15, 2019, but was stopped by a nationwideinjunction.  On January 27, 2020 the USSupreme Court liftedthe nationwide injunction.  Note that aninjunction still remains in effect in Illinois. On February 24, 2020 the new public charge rule will go into effect.
Undera longstanding law and policy, if immigration authorities determine someone is“likely to become a public charge” the US can deny the applicant’s green cardor other visa to the US.  A public chargeis someone who is dependent on the government, through benefits programs.  The Trump Administration’s new rule changesthe standard by the DHS determines whether a foreign national is likely tobecome a public charge.
Underthe previous policy, DHS examined whether an intending immigrant was primarilydependent on public benefits.  Under the newrule, immigration officers will examine whether immigrants are likely atany time to become a public charge, using a multi-factor test. 
Publicbenefits under the new rule include:
1)   Any federal, state, or local cash assistance,including:
a.    Social Security Income (SSI)
b.    Temporary Assistance for NeedyFamilies (TANF)
c.    Government programs for incomemaintenance often called “general assistance”
2)   Supplemental Nutrition AssistanceProgram (SNAP) also known as food stamps
3)   Section 8 Housing Assistance
4)   Medicaid, with certain exceptions
5)   Public Housing under Section 9
Theimmigration officer will take into account a broad range of factors andconsider all of the following when making a determination if the foreignnational visa applicant is likely to become a pubic charge:
a.  Receipt of a public benefit for morethan 12 months in the aggregate within a 36 month period
b.    Age
c.    Health
d.    Family status
e.    Education and skills
f.    Assets, resources, and financialstatus 
This rule will apply to allapplicants for any type of visa, though it is expected that the immigrationofficers will look most closely at those applying for a green card.  Employment-based visa applicants should betreated favorably because, by virtue of their employer-sponsor, they haveguaranteed employment and income in the United States.  However, policy experts forecast that thisrule will likely be applied inconsistently and cause fewer legal immigrants toenter the United States. 

VISA REFUSALS AT THE US EMBASSY IN MANILA

Musillo Unkenholt is aware that theUS Embassy in Manila has refused to approve almost any immigrant visa for thelast 3 weeks.  The problem is,apparently, that the Embassy is mistakenly interpreting clauses in employmentcontracts between nurses and their US employers, perhaps based on some badinformation that was sent to the Embassy. 
The problem seems to be localizedin Manila.  Philippine nationalsprocessing for immigrant visas at other embassies around the world are beingissued their immigrant visas.  Likewise,other embassies are also issuing immigrant visas to non-Philippinenationals. 
We are working with clients, trade associations, andnurses to solve this problem.  It maytake a little while to solve the problem but it is a fairly straightforwardproblem that will be solved, hopefully in the next few weeks.

REMINDER: NEW H-1B CAP REGISTRATION SYSTEM AND STRATEGIES FOR THE UPCOMING H-1B SEASON WEBINAR

MU Law will be hosting a free webinar for our clients and friends on Wednesday January 29, 2020 at 2PM / 11AM PT. Interested clients and friends can register for our webinar by clicking on the link below.

This webinar will discuss the NEW H-1B cap registration system and strategies for the upcoming H-1B season.

Webinar Agenda:

·   NEW H-1B Cap Registration System
·   H-1B Cap Projections
·   What is a Specialty Occupation?
·   H-1B Dependency
·   Special Issues for Staffing Companies and Third Party Placements
·   What is Third- Party Placement v. In-House work?
·   Employer-Employee relationships, how to maintain them
·   Cap-gap for F-1s as well as CPT/OPT maintenance –
·   Top 10 things H-1B employers can do to stay compliant
·   Q&A

PLEASE JOIN US!

FEBRUARY 2020 VISA BULLETIN: ANALYSIS AND PREDICTIONS

The Department of State hasjust issued the February 2020 Visa Bulletin. This is the fifth VisaBulletin of Fiscal Year 2020. This blog post analyzes this month’s VisaBulletin.
February 2020 Visa Bulletin
Table A: Final Action Dates– Applications with these dates may be approved for their Green Card(Permanent Residency card) or Immigrant Visa appointment.
Employment-
based
All Other
CHINA
INDIA
PHILIPPINES
1st
15DEC18
22MAY17
01JAN15
01DEC18
2nd
C
01JUL15
19MAY09
C
3rd
C
01JAN16
08JAN09
01JUN18

MU Law Analysis
All Other: Although All Other EB-1has a slight retrogression, the EB-2 category remained current and is expectedto remain current for the foreseeable future. The EB-3 is current, but the DOS expects to implement a retrogression inMarch.
China: EB-2 did not move,although EB-3 progressed by a month.  TheEB-2 and EB-3 each progressed about one month. Over the course of FY2020 we expect EB-2 and EB-3 to remain within a fewmonths of each other.
India:  There was virtually no progress forIndia.  We continue to expect very littleprogress in either category in future months.
Philippines:  We wereencouraged by the three-month progression in EB-3.  We remain surprised by the slow progress ofEB-3, although we were encouraged by this month’s progression.  We think thatthere is a chance of continued progression in the next few months, although theenactment of All Other EB-3 retrogression may mean that fewer visas areavailable for the Philippines.

REMINDER: NEW H-1B CAP REGISTRATION SYSTEM AND STRATEGIES FOR THE UPCOMING H-1B SEASON WEBINAR

MU Law will be hosting a free webinar for our clients and friends on Wednesday January 29, 2020 at 2PM / 11AM PT. Interested clients and friends can register for our webinar by clicking on the link below.

This webinar will discuss the NEW H-1B cap registration system and strategies for the upcoming H-1B season.

Webinar Agenda:

·   NEW H-1B Cap Registration System
·   H-1B Cap Projections
·   What is a Specialty Occupation?
·   H-1B Dependency
·   Special Issues for Staffing Companies and Third Party Placements
·   What is Third- Party Placement v. In-House work?
·   Employer-Employee relationships, how to maintain them
·   Cap-gap for F-1s as well as CPT/OPT maintenance –
·   Top 10 things H-1B employers can do to stay compliant
·   Q&A

PLEASE JOIN US!

BUSINESS IMMIGRATION OUTLOOK FOR 2020

There are some obvious areas where wecan expect to see activity in business immigration 2020.  Here are a few topics that we will keepingour eye on this year:
New H-1B Cap Process

The USCIShas confirmed that it will use an electronic pre-registration systemfor 2020 (Fiscal Year 2021).  Under thisprogram, H-1B petitioners and beneficiaries must be registered between March1-20, 2020.  Please join us for ateleconference on the new H-1B registration system to learn more.  REGISTER.
H-1B Specialty Occupation Rule

The USCIS recently publishednotice that it intends to revise the definition of specialtyoccupation, with an aim to restricting the number of people who qualify for theH-1B visa.  It remains to be seen whatthe revised definition says and whether or not the USCIS oversteps itsauthority with a new rule.  TheUSCIS continually is sued on these issues and usually settles thecase by reopening and approving the H-1B petition. 
H-1B Employer-Employee Rule

Likewise, USCIS will also seek torevise the H-1B rule by creating a stricter law on who can be an H-1Bemployer.  USCIS’ own regulation saysthat its aim is to “to better protect U.S. workers and wages,” which hastraditionally been the Department of Labor, not the USCIS’ role.  Again, we expect to see lawsuits if the USCISexceeds the rules set forth by Congress.
Recession of the H-4 / EAD rule

The Trump Administration has, foryears, sought to eliminate the H-4/EAD rule.  A recentUSCIS court filing indicates that the rule rescinding workauthorization could happen in March. 

NEW H-1B CAP REGISTRATION SYSTEM AND STRATEGIES FOR THE UPCOMING H-1B SEASON WEBINAR

MU Law will be hosting a free webinar for ourclients and friends on Wednesday January 29, 2020 at 2PM / 11AM PT. Interested clients and friends can register for our webinar by clicking on the link below.


This webinar will discuss the NEW H-1B cap registration systemand strategies for the upcoming H-1B season.


Webinar Agenda:

·  NEWH-1B Cap Registration System
·  H-1BCap Projections
·  Whatis a Specialty Occupation?
·  H-1BDependency
·  SpecialIssues for Staffing Companies and Third Party Placements
·  Whatis Third- Party Placement v. In-House work?
·  Employer-Employeerelationships, how to maintain them
·  Cap-gapfor F-1s as well as CPT/OPT maintenance –
·  Top10 things H-1B employers can do to stay compliant
·  Q&A

PLEASE JOIN US!

JANUARY 2020 VISA BULLETIN: PREDICTIONS AND ANALYSIS

The Department of State hasjust issued the January 2020 Visa Bulletin. This is the fourth VisaBulletin of Fiscal Year 2020. This blog post analyzes this month’s VisaBulletin. 
January 2020 Visa Bulletin
Table A: Final Action Dates– Applications with these dates may be approved for their Green Card(Permanent Residency card) or Immigrant Visa appointment.
Employment-
based
All Other
CHINA
INDIA
PHILIPPINES
1st
15OCT18
22MAY17
01JAN15
01OCT18
2nd
C
01JUL15
18MAY09
C
3rd
C
01DEC15
01JAN09
15MAR18
MU Law Analysis
All Other: Although All Other EB-1has a slight retrogression, the EB-2 and EB-3 categories remained current andare expected to remain current for the foreseeable future.
China: EB-2 did progress by threemonths.  The EB-2 and EB-3 eachprogressed about one month.  Over thecourse of FY2020 we expect EB-2 to catch up to EB-3 and the two categories tostay roughly equal.
India: As with China, the EB-2and EB-3 dates remain inverted.  Therewas just three days’ progress in EB-2 and no progress in EB-3.  We continue to expect very little progress ineither category in future months.
Philippines:  Weremain surprised by the slow progress of EB-3.  The DOS indicates that the Philippine EB-3will only be moving one month at a time for the next 3 calendar months, whichis slower than our internal metric indicate should be happening.  We are no longer predicting as rosyprogressions in early 2020.  

FAIRNESS FOR HIGH SKILLED IMMIGRANTS ACT COULD PASS SOON

The Fairness for High Skilled Immigrants Act has been a hot legislative item all year.  On several occasions, the bill has looked to be set into law, until a last minute Senate hold out has blocked the law’s progress.  One of the final holdouts, Sen. Durbin (D-IL), has just agreed to a compromise with Sen. Mike Lee (R-UT).  Sen. Lee is bill’s lead sponsor.
The bill, including Sen. Durbin’s amendments, would make these changes to Employment-Based Immigration:
Changes to the Green Card Quota and Process
  • Eliminate the per-country visa caps on employment-based workers over a three-year phase in period.  This will speed up processing Indian EB2 and EB3 retrogressed immigrants.
  • Allow all nonimmigrants in the US to file an I-485 Adjustment of Status 270 days (9 months) after the filing of their I-140, Petition for Alien Worker.  This will allow more job flexibility and protect Indian and Chinese H-1B and L-1 workers and their immediate families.  These Adjustment applicants must maintain qualifying employment and the entire family will retain their priority dates even if they would otherwise age-out.  This provides a great relief to long-retrogressed families.
  • There is a 4,400 visa carve-out for Schedule A workers.  As with current law, their immediate family members also take visas at the same time.  This provision will end in 2026.
  • There is also a second carve-out for non-Indian and Chinese nationals who have not worked in the US.  Our sense is that this will largely be used by non-H-1B occupations, such as Registered Nurses.  This provision ends in nine years.

 Changes to the H-1B visa
  • Employers with more than 50% H-1B / L-1 workers would be barred from the H-1B program.
  • H-1B Cap petitions must be posted on an on-line government job board prior to the filing of the H-1B cap petition.
  • Elimination of the B-1 in Lieu of H-1B business visa rule.
  • Additional wage protection for H-1B workers.
  • Additional protections for H-1B whistleblowers. 

Next Steps
Sen. Lee is expected to try to pass the bill in the Senate this week, perhaps as soon as today.  The bill will need to go back to the House of Representatives, where it is expected to pass, perhaps before the end of the year.  After that the President will need to sign the Bill into law, which is expected.
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About Us

Musillo Unkenholt LLC is a full-service immigration law firm headquartered in Cincinnati, Ohio, serving clients throughout the United States and the world.

Our attorneys have vast experience in an array of immigration processes.

Contact

302 West Third Street, Suite 710
Cincinnati, OH 45202

Phone: 513.381.VISA (8472)

info@muimmigration.com

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