A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration lawyer. We serve clients in all U.S. states and overseas countries. (All information is not legal advice and is subject to change without prior notice.)

Contact: 732-632-9888, http://www.1visa1.com/

Friday, February 14, 2020

H-1B Registration Begins March 1st

Each year, tens of thousands of applicants must compete for a limited number of H-1B visa numbers. The U.S. Citizenship and Immigration Services (USCIS) created a new H-1B online registration tool last year which will be implemented this H-1B season on March 1st. The agency just released further information about the registration system and the lottery process to the public.  The new  system has some specific requirements that involve both the case attorney and the employer. 


Employers Must Create an Online Account

The new system requires employers to create MyUSCIS "H-1B Registrant" accounts to submit online registrations. The employer account should be controlled by a designated person who can set up the online account and has the authority to approve the H-1B registration. This person does not have to be the same person who signs the H-1B application forms afterwards. USCIS stated that employer should be able to create accounts on or after 2/24/2020.

The H-1B registration is a new feature of the USCIS system. Employers must sign up for a new account specifically for the registration process, even if they have already have an online account with USCIS.

Only one email address can be linked to an H-1B Registrant account. Employers who previously had USCIS accounts should use a new email address to set up the new account for H-1B registration. An employer is supposed to have one registrant account only, no matter how many H-1B candidates they have. Registrations for multiple candidates should be submitted through one employer account only. The system allows a maximum of 250 employee registrations in each submission session, and there is no limit to the number of sessions that an employer can submit before the registration period ends on March 20th.

Representation by Attorneys/Legal Representatives 

Employers can hire legal professionals to submit the registration on their behalf. In that case, they will need to "handshake" with their attorneys or legal representatives in the system to validate the representation. The attorneys/representatives will provide the employers with a system-generated code for them to review and approve the G-28 and the registration. After the approval, the attorneys/representatives can continue with the next steps.  An experienced attorney not only assists the employer with registering the H-1B application; he or she can evaluate the facts of the case to spot and address any issues early on. Proper legal advice is particularly valuable in light of the current administration's tough immigration policy.  


Information Needed for Registration 

The registration system requires the employer's business name, primary U.S. address, and Federal Employer ID Number.  Full name, title, and contact information of the authorized signatory for the registration are also required. The prospective H-1B employee's names, gender, date/country of birth, nationality, and passport number must also be provided. Employers must also indicate whether the candidate is subject to the regular or master (advanced degree) cap.


Selection and Filing of H-1B Petition

USCIS will provide a 90-day window for the employers to submit legally-sufficient petitions for H-1B candidates who are selected in the lottery. If employers fail to submit the H-1B petition after the selection, they may face severe legal consequences that could harm their ability to petition for H-1B employees in the future, unless a reasonable explanation is provided.  

The new system does not require extensive information of the H-1B petition for registration.  However, employers and foreign workers should still have their cases evaluated by an experienced immigration lawyer from the beginning to address any issues early on. 

Monday, February 10, 2020

USCIS to Implement the Public Charge Rule on Applications

Ever since it was first announced late last year, the Inadmissibility on Public Charge Grounds rule has been the subject of much controversy. Once announced to take effect in October 15, 2019, the rule faced a lot of resistance and could not be implemented due to nationwide federal court injunctions. After the U.S. Supreme Court removed these injunctions, USCIS has scheduled to implement the Public Charge Rule nationwide (except Illinois) on February 24, 2020, with slight changes.

A public charge is someone that relies on government assistance programs. With the addition of the public charge rule, all aspects of a foreign applicant's background are scrutinized. Some factors are finances, health, education, skills, and age. The foreigner's use of public benefits are also a big factor. As a response to the nationwide injunctions, however, the rule was changed to only take into account public benefits used on or after February 24, 2020. 

Generally, each factor weighs positively in the applicant's favor if it means he/she is more self-sufficient. If the factors paint a picture of someone who will likely need long-term government assistance, the applicant will be denied entry to the United States. 

The coming implementation of this rule will make it harder for foreign nationals to enter the country on many fronts. Green card applicants as well as temporary visa applicants (H-1B, H-4, L, etc.) will find that they have more documentation to prepare and that standards have risen immensely. Illinois applicants, however, are spared from this rule indefinitely. A federal court injunction preventing the enforcement of this rule is still in effect for Illinois. 



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Soon after this final rule announcement, USCIS rolled out new and updated forms reflecting the rule, to be used starting February 24, 2020. The new forms are:
  • Form I-944, Declaration of Self Sufficiency
  • Form I-945, Public Charge Bond
  • Form I-356, Request for Cancellation of Public Charge Bond
The updated forms are as follows:
  • Form I-129, Petition for Nonimmigrant Worker
  • Form I-129CW, Petition for a CNMI-Only Nonimmigrant Transitional Worker
  • Form I-485, Application to Register Permanent Residence or Adjust Status
  • Form I-485 Supplement A, Adjustment of Status Under Section 245(i)
  • Form I-485 Supplement J, Confirmation of Bona Fide Job Offer or Request for Job Portability Under INA Section 204(j)
  • Form I-864, Affidavit of Support Under Section 213A of the INA
  • Form I-864A, Contract Between Sponsor and Household Member
  • Form I-864EZ, Affidavit of Support Under Section 213A of the Act
  • Form I-912, Request for Fee Waiver
  • Form I-601, Application for Waiver of Grounds of Inadmissibility
  • Form I-539, Application To Extend/Change Nonimmigrant Status, and I-539A, Supplemental Information for Application to Extend/Change Nonimmigrant Status
  • Form I-539 online
Copies of the new forms are available on each form's page on the USCIS website. 

USCIS will accept old editions of the forms whose courier receipts have dates before February 24, 2020. For receipts from Feb. 24, 2020 onward, USCIS will reject old editions of the form. Again, Illinois is an exception and will continue to use current forms.

February 24, 2020 is an important date for those applying to enter the country. It marks the use of new forms, enforcement of the public charge rule, and the date from which public benefits will be counted. It is advised that applicants look closely at the rules dictating how they will be judged. Furthermore, Illinois applicants should stay updated on news of the injunction and USCIS announcements on the public charge rule.


Wednesday, February 5, 2020

International I-130 Petitions / Changes of USCIS Services due to Coronavirus

As of February 1st, 2020, the Department of State (DOS) will handle certain international I-130 applications while USCIS will handle all domestic cases.

Overseas active duty service members are to file their I-130 with the local DOS office. Also, certain non-military candidates can file I-130 locally with DOS through consular processing .

The general rule is that DOS will handle Form I-130 locally if the application falls under blanket criteria determined by USCIS. Blanket authorization is in place for U.S. service members stationed abroad. Temporary blanket authorization can also be implemented in situations of civil strife and severe natural disaster. DOS also has discretion to accept a U.S. citizen petitioner's I-130 based on "exceptional circumstance". Overseas petitioners not meeting these criteria are required to file online or domestically through mailing the Dallas Lockbox Facility. 

The reason for this delegation of I-130 processing is to improve efficiency. USCIS states that DOS has a wider presence internationally, meaning it has the facilities to process Form I-130 locally. USCIS should have less administrative burden with the help of the State Department, hopefully speeding up domestic I-130 processing times.


Coronavirus

Due to the impact of the Coronavirus, the U.S Embassy and Consulates in China are temporarily closed to the public. All services and interviews are suspended until further notice. The USCIS field offices in Beijing and Guangzhou are also closed. All appointments have been or will be rescheduled for a later date.  The I-130 petitions can still be filed with the USCIS Lockbox as described above in the interim. 

Further, if individual applicants or petitioners are impacted by the Coronavirus, they may request for rescheduling of any USCIS appointments without penalty following the instructions in the appointment notices.


Sunday, February 2, 2020

U.S. Coronavirus Travel Restrictions: Q & A

On January 31, 2020,  the U.S. government declared the coronavirus as a public health emergency in the United States and initiated a series of measures to counter this deadly virus from China including mandatory quarantine and entry restrictions.The following questions and answers summarize the details.

Q.  I have a visa to enter the U.S. and I have been in China in the past 2 weeks.  Can I return to the U.S. now? 
A.  No, foreign nationals who have been to China in the previous 14 days are not allowed to enter the U.S. starting 5 p.m., EST, Sunday, February 2, 2020.  This ban applies to all immigrant and nonimmigrant visa classifications including as B-1, B-2, F-1, H-1B, L-1, O, R, etc. (subject to some exceptions below). 

Q.  How long will the entry restrictions last?
A.  The entry restrictions will be on-going until the President decides to end them.  The Secretary of Health and Human Services will make recommendations to the President after 15 days, and every 15 days thereafter, on whether to continue, modify, or terminate these restrictions.

Q:  I am a U.S. citizen who have been to China recently.  Can I return to the U.S.?
A.   U.S. citizens are not subject to the entry restrictions.  However, U.S. citizens who have traveled to Hubei, China, during the last 14 days will be subject to up to 14 days of mandatory quarantine when they return to the U.S.


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Q.  Are there any exceptions to the entry restrictions?
A.  Yes, the following categories of people are exempt:

  • green card holders
  • spouses of U.S. citizens or green card holders
  • parents or legal guardians of U.S. citizens or lawful permanent residents who are unmarried and under the age of 21
  • siblings of U.S. citizens or lawful permanent residents who are unmarried and under the age 21
  • children of U.S. citizens or lawful permanent residents, and IR-4 or I-IH-4 prospective adoptees 
  • air or sea travel crew members
  • Other exempt individuals include foreign diplomas and their family members, foreigners exempt by the CDC Director or otherwise authorized by the U.S. government for other reasons.

Q.  I am an American citizen and I have elderly parents. Will they be allowed to come to the U.S.? 
A.  Parents of American citizens are not exempt unless the citizens are unmarried and under the age of 21.

Q. Do these restrictions apply to Chinese citizens only?
A.  No, these restrictions apply to all foreign nationals who have been to China in the past 14 days.

Q. I have been in Hong Kong and Macau in the previous 14 days. Am I subject to these entry restrictions?
A.  No.

Q.  I am an American citizen and I have been to China but not Wuhan.  Can I fly back to the U.S.?
A. U.S. citizens who have been in the rest of mainland China must first be screened at one of eleven U.S. airports: New York, Newark, San Francisco, Seattle, Virginia, Dallas, Detroit, Honolulu, Los Angeles, O'Hare, and Atlanta.

Q.  I am a Chinese citizen working/studying/visiting in the United States with a valid visa but my I-94 stay will expire soon. If I remain here, I will be overstaying my status.  What should I do?
A. There are two options.  You may file a request to extend or change your status in the U.S.  If this option is not available, then you may travel to another country other than China and re-enter the U.S. again (with a valid visa).






Wednesday, January 29, 2020

The End of Birth Tourism in the United States

Anyone that is born in the United States is an American citizen, regardless of the parent's immigration status. This so-called birthright citizenship is guaranteed by the 14th Amendment to the U.S. Constitution. 

Unfortunately, some foreigners abuse this law by using it as an easy way for their child to attain citizenship. This practice is called birth tourism. Birth tourism is when a mother enters the country on a visitor tourist visa for the primary purpose of securing American citizenship for her child. The child automatically gains many rights and privileges as a citizen.  Some foreigners also overstay and some neglect to pay their hospital bills.

Last week, the Department of State published a rule on B visitor visas that addresses the above issue. This rule has been in effect since January 24, 2020.

Changes were made regarding the B visa, which is a visa for temporary visitors for business or pleasure. 'Pleasure' is now defined specifically to exclude those entering the country primarily to secure citizenship for their child through birth.

It is important to note that pregnant women who genuinely need to enter the country for specialized medical treatment are not part of this exclusion. These B visa applicants must be able to provide the following:
(1) A legitimate reason to travel to the U.S. for medical treatment.
(2) Proof that a doctor or hospital in the country agreed to provide treatment.
(3) The projected duration and cost of treatment and expenses.
(4) Ability to pay for the medical cost and expenses, either with pre-arranged assistance or by herself. 

Birth tourism has even spawned an industry catering to rich foreign mothers wanting to give birth in the United States. Companies offer "maternity hotels" to those paying upwards of $50,000 for services to give birth in America. They even coach their clients on how to answer questions from consular officers. 

Arrests have been made over this fraudulent practice. Last year, three people that ran companies providing these services in California were arrested. They faced criminal charges -- a first for birth tourism. The charges were for immigration fraud, money laundering, and identity theft. Custom Enforcement investigators say there are around 300 other people running birth tourism businesses in Los Angeles. Most of their clients are Chinese nationals.

Consular officers can question or deny a B visa if the applicant is unable to prove the above requirements. These stricter standards could make it more difficult for pregnant women wanting to enter the U.S. for reasons other than birth tourism. For some, this could mean losing access to specialized medical care in America. It is recommended that any B visa applicants affected by these new requirements consult an experienced U.S. immigration attorney.


Monday, January 27, 2020

The Coronavirus' Impact on Travel and U.S. Visa Services

The sudden outbreak of the coronavirus has made it almost impossible to travel in and out of Wuhan, China, where it was first identified. Authorities announced a citywide lockdown, stopping air and rail travel in and out of Wuhan in an attempt to lower contagion. The U.S. embassy in China has issued a warning to not travel to Hubei province. Approximately 1,000 U.S. citizens have been caught in the middle of this situation, unable to leave the country.

U.S. diplomats were quick to arrange an evacuation for citizens in Wuhan. The U.S. government has arranged for a plane to transport U.S. consulate workers, American citizens, and their families from Wuhan back to the United States. The flight is scheduled for 1/28/2020 and will transport around 230 people from Wuhan Tianhe International Airport to San Francisco. The U.S. embassy urges any U.S. citizen holding a passport to contact them, though seating is very limited. There is no mention of whether any more flights will be arranged.

The American Consulate in Wuhan will be temporarily shut down. Anyone needing a visa to enter the U.S. should go to the other 4 other consulates in Chengdu, Guangzhou, Shanghai, and Shenyang, or the embassy in Beijing. Applicants for L1 and H1B visas may only apply at the U.S. consulates in Guangzhou, Shanghai, or U.S. Embassy in Beijing. Other consulates will not process their type of visa.

U.S. Consulate General in Hong Kong and Macau is also on alert. Hong Kong has 8 confirmed cases of the virus thus far and has declared the outbreak to be an emergency.  Both the Consulate General in Hong Kong and American Institute in Taiwan (AIT) issued warnings against traveling to Hubei province. 

In general, American visa services are expected to be negatively impacted by the Chinese epidemic. Processing time of applications will likely to be longer.  Travelers are advised to plan things accordingly if they must travel internationally

The spread of the deadly new coronavirus has proven to be rapid and fierce.  There are no vaccines for the virus, which has already spread to many countries including Thailand, Hong Kong, the United States, Taiwan, Australia, Macau, Singapore, Japan, South Korea, Malaysia, France, Canada, Vietnam, Nepal,  and Cambodia. Scientists and medical professionals are fighting day and night to stop the coronavirus from becoming a full-blown pandemic.  Until things get better, international travel will continue to be severely impacted. 

The U.S. Supreme Court allows "Public Charge" Rule to Continue

A divided U.S. Supreme Court lifted an injunction against the implementation of Trump Administration's "Public Charge" rule in a 5-4 decision. In effect, the government is temporarily allowed to apply the public charge rule in adjudicating immigrant visa petitions filed by foreign nationals, pending final decisions by the Second Circuit Court of Appeals and, possibly, the U.S. Supreme Court on the merits of the rule. 

For a summary of the public charge rule, click here.  The rule affects individuals who have received public benefits and those who are less educated, in poor health, and otherwise  have limited financial resources. 

Saturday, January 25, 2020

Visa Bulletin Predictions - February 2020 and Beyond


Every month after the release of the monthly visa bulletin, DOS Visa Office Chief Mr. Charlie Oppenheim provides his insights to AILA on the trends, movements, predictions, etc. regarding the usage of immigrant visa numbers. The following are his most important insights following the publication of the February 2020 Visa Bulletin.


Family Visa Categories


F2A is still current for all countries in February, but is expected to have final action dates added within the next few months. The F4 Other Countries category will retrogress significantly -- 7 months to 07/01/2006. Charlie says this retrogressed date will remain stagnant for a few months.

Employment Visa Categories

EB-1 China and India dates do not change. The rest of the world's EB-1 categories advance 2 months to 12/01/2018. 

EB-2 China moves forward 2 weeks to 07/15/2015 and EB-2 India one day to 05/19/2009. Charlie predicts that the rest of the world (EB-2) will have a final action date added in the latter half of FY2020. For February, they remain current. 

Charlie states that EB-3 and EB-3 Other Workers Worldwide will have a final action date in March. EB-3 China moves forward 1 month to 01/01/2016, making the category 5.5 months ahead of EB-2 ChinaEB-3 India moves forward one week to 01/08/2009. 

EB-3 Philippines exceeds predictions, moving forward 2.5 months in February to 06/01/2018. Charlie explains that this move was to use up more visa numbers in anticipation of EB-3 Worldwide getting a final action date in March. 

Except for Mexico and El Salvador/Guatemala/Honduras, EB-4 category for all countries remain current in February. EB-4 India is expected to get a final action date on or after July 2020. 

EB-5 China will advance 1 week in February to 12/01/2014. Charlie expects that EB-5 China will advance more quickly than anticipated. 

EB-5 India will advance 4 months to 09/01/2018, and EB-5 Vietnam one week to 12/15/2016. 

Thursday, January 23, 2020

USCIS rejects incomplete I-918 and I-589 applications

As of December 31, 2019, USCIS instructs the public that it will reject certain incomplete immigration forms including:

  • Form I-918, Petition for U Nonimmigrant Status
  • Form I-918, Supplement A, Petition for Qualifying Family Member of U-1 Recipient
  • Form I-589, Application for Asylum and for Withholding of Removal


USCIS rejects these application forms if the applicant leaves a required field blank.  Applicants must answer all required questions.  If they do not know the answer, they should put down "unknown". They may also put down "none" or "n/a" if the requested information does not exist or does not apply. Optional fields can be left blank.  For example, if the person does not have a middle name, they should still put down "none" or "n/a".  


Wednesday, January 22, 2020

USCIS Terminates E-1 and E-2 Treaty Trader and Investor Programs for Iranians


USCIS made the following announcement today.  Note: The announcement does not affect the E-1 / E-2 visa programs of other eligible treaty countries. 


USCIS today announced that, due to the Oct. 3, 2018, termination of the 1955 Treaty of Amity, Economic Relations, and Consular Rights with Iran, Iranian nationals are no longer eligible for E-1 treaty trader and E-2 treaty investor changes or extensions of status based on the treaty.

The E-1 and E-2 nonimmigrant visa classifications allow an alien of a treaty country to be admitted to the United States for the purposes of engaging in international trade or investing a substantial amount of capital into a U.S. business.

E-1 and E-2 nonimmigrant visas are based on trade and investment treaties or specific legislation providing for reciprocal treatment of the respective countries’ nationals. The existence of a qualifying treaty or authorizing legislation is therefore a threshold requirement for issuing an E visa.

Due to the termination of the treaty, USCIS will send Notices of Intent to Deny to affected applicants who filed applications after the Department of State’s Oct. 3, 2018, announcement. Iranians currently holding and properly maintaining E-1 or E-2 status may remain in the U.S. until their current status expires

Tuesday, January 21, 2020

February 2020 Visa Bulletin: Family 2A Remains Current



There are a few ups and downs in the February visa bulletin

EB-1 Most countries advance by 2 months except China and India, which remain unchanged. 

EB-2 China moves forward to 07/15/2015 while India only advances 1 day. There are currently available visa numbers for the rest of the countries under the EB-2 category. 

EB-3 Philippines advances by 78 days to 06/01/2018. EB-3 India advances by 7 days. EB-3 China, which moves forward to 01/01/2016, is still faster than EB-2 China. It means that "down-grading" is still a viable option for Chinese-born applicants. 

EB-4 Mexico advances to 09/01/2017. EB-5 India advances by 4 months while EB-5 China and Vietnam both move forward by a week. 

In the family category, F-2A worldwide remains current. All categories for the Philippines move forward between 2.5 months to 4 months. But F-4 China and "Other Countries" retrogress 7 months to 07/01/2006. 

Predictions:

F-4 (USC's siblings) has advanced rapidly recently.  The State Department expects to hold the cutoff date for several months for "Other Countries" to control visa usage.  Hence, expect no movement with F-4 Final Action Date in this category for a while. 

Due to large volume of adjustment cases filed with USCIS, the State Department expects EB-3 and Other Worker categories will have a cutoff date (no longer current) in March for "Other Countries".


AD: Dates for Final Action (Green Card Approval)              FD: Dates for Filing Applications Only

      Family
Other Countries
      China
India
Mexico
Philippines
F1
AD
08/22/2013
08/22/2013
08/22/2013
08/22/1997
04/01/2009
FD
03/22/2014
03/22/2014
03/22/2014
11/15/1999
10/01/2009
F2A
AD
      C
      C
      C
      C
      C
FD
12/01/2019
12/01/2019
12/01/2019
12/01/2019
12/01/2019
F2B
AD
08/22/2014
08/22/2014
08/22/2014
09/15/1998
05/01/2009
FD
04/22/2015
04/22/2015
04/22/2015
05/15/1999
11/01/2009
F3
AD
11/22/2007
11/22/2007
11/22/2007
03/22/1996
05/01/1999
FD
07/22/2008
07/22/2008
07/22/2008
07/15/2000
11/01/1999
F4
AD
07/01/2006
07/01/2006
11/22/2004
01/15/1998
07/01/1999
FD
07/22/2007
07/22/2007
07/22/2005
01/01/1999
01/01/2000

1st: Unmarried Sons and Daughters of Citizens (about 23,400 per year).
2A: The 2 "A" preference is for Spouses and Children (under 21 & unmarried) of LPR's.
2B: The 2 "B" Preference is for Unmarried Sons and Daughters (21 or older) of LPR's.
3rd: Married Sons and Daughters of Citizens (about 23,400 per year)
4th: Brothers and Sisters of Adult Citizens. (about 65,000 per year)
  
Employment
Other Countries
China
El Salvador
Guatemala
Honduras
India
Mexico
Philippines

Vietnam
EB1
AD
    12/01/2018
   
05/22/2017

12/01/2018
  01/01/2015

12/01/2018

12/01/2018

12/01/2018
FD
C
10/01/2017
C
03/15/2017
C
C
C
EB2
AD

C

07/15/2015
C
  05/19/2009

C

C
        
C
FD
C
08/01/2016
C
07/01/2009
C
C
C
EB3
AD
C
01/01/2016
C
01/08/2009
C
06/01/2018
C
FD
01/01/2019
03/01/2017
01/01/2019
02/01/2010
01/01/2019
01/01/2019
01/01/2019
Other Workers
  AD
C
05/01/2008
C
01/08/2009
C
06/01/2018
C
FD
01/01/2019
08/01/2008
01/01/2019
02/01/2010
01/01/2019
01/01/2019
01/01/2019
EB4
AD
C
C
07/01/2016
C
09/01/2017
C
C
FD
C
C
08/15/2016
C
C
C
C
EB5
AD
C
12/01/2014
C
09/01/2018
C
C
12/15/2016
FD
C
05/15/2015
C
C
C
C
C

1st: Priority Workers (Extraordinary ability aliens, multinational companies executives/managers, outstanding 
prof./researchers)
2nd: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability.
3rd: Skilled Workers, Professionals, and Other Workers (Unskilled.)
4th: "Special Immigrants" (Religious & others)    
5th: Employment Creation (Investors)

What happens if the Final Action Date is "current" or later than the Filing Date? 
If this happens in a particular immigrant visa category, applicants in that visa category may file using the Final Action Dates chart during that month.

For Family-Sponsored Filings:
In the F2A category, there is a cutoff date on the Dates for Filing chart. However, the category is “current” on the Final Action Dates chart. This means that applicants in the F2A category may file using the Final Action Dates chart for February 2020.

For all the other family-based preference categories, you must use the Dates for Filing chart in the Department of State Visa Bulletin for February 2020.

For Employment-Based Preference Filings:
In the EB-3 and Other Workers “All Chargeability Areas Except Those Listed” categories, there is a cutoff date on the Dates for Filing chart. However, the categories are “current” on the Final Action Dates chart. This means that applicants in the EB-3 and Other Workers from all other chargeability areas may file using the Final Action Dates chart for February 2020.

For all other employment-based preference categories, you must use the Dates for Filing chart in the Department of State Visa Bulletin for February 2020.