RELIEF ACT - The Boldest Immigration Proposal in Recent Years

Once a while, you do get a nice surprise while browsing through the myriad of daily emails, news updates, briefings, etc.  The surprise came yesterday when I was reading the new RELIEF ACT drafted by Senator Dick Durbin of Illinois.  The proposed law - Resolving Extended Limbo for Immigrant Employees and Families Act - is one of the boldest immigration proposal that any legislator has put on the table in recent years.  

Senator Durbin was actually the lobbying target during the last few weeks regarding another pending Senate Bill S. 386, which eliminates the per-country cap for employment-based immigration visa categories.  Senator Durbin single-handedly held up the unanimous Senate consent vote on S. 386, thus blocking its passage in September.  A few weeks later, Senator Durbin came up with a bill - if passed - that can actually solve the longstanding problem of immigrant visa backlog. 

The RELIEF ACT proposes the following changes in the immigrant visa system:

• Stop counting the children and spouses of legal permanent residents against the immigrant visa cap. This is to be achieved by counting the children and spouses as "immediate relatives", like with petitions by citizens, and not subjecting derivative beneficiaries to the annual visa cap for employment-based petitions. This would free up many visa numbers that are counted toward the cap.

• Put protection in place for children who "age out" of their category while waiting for visas to become available. The backlogs mean many visa applicants msut wait for years to get their green card. This has proved problematic for their children, who can reach 21 years-old before then and become ineligible as a derivative beneficiary.

• Get rid of country caps for immigrant visas, as proposed in H.R. 1044. Durbin also proposes to extend the "hold harmless" clause from H.R. 1044. This would mean continuing to distribute visas in their current order to those who have approved immigration petitions for a five-year period after enactment.

• Eliminates the current backlogs of immigrant visa cases.  Most strikingly, the proposal plans to eliminate the current backlogs of family-based and employment-based immigrant visa petitions over a five-year period.  Although not explicitly stated in the Act, this would mean temporary increase in the number of available immigrant visa numbers. 

Durbin's ambitious proposal strikes at the core of the immigrant visa backlog issue. Whether we will get to observe its effects on the backlog depends on how it fares in the legislative process. Past bills have proposed similar changes but did not make it through Congress. Even if it passes in the House and Senate, there is still a strong possibility of President Trump vetoing it. His immigration policy has been one of enforcement rather than relaxation, aiming at appeasing his conservative base. We must wait and see if the bill passes.  However, at least for now, the bill gives a glimpse of hope for many visa applicants.

Poland Nominated for Visa Waiver Program

The Department of State has announced that Poland has been formally nominated to join the Visa Waiver Program. After induction is finalized, Polish citizens will be able to apply to enter the U.S. for short trips without a visa.

What is the visa waiver program? Nationals of countries participating in this program can enter the U.S. for periods of less than 90 days for business or pleasure without a visa. They must first receive approval through the Electronic System for Travel Authorization (ESTA). The ESTA is an online system used by Customs and Border Patrol (CBP) to determine eligibility of travelers for tourism and business purposes. Approval usually lasts 2 years and a new ESTA is required for any major changes such as new passport, name, gender, and country of citizenship.  There are 38 countries currently in the Visa Waiver Program.

Presidential Proclamation Adds Health Insurance Requirement

President Trump has written a proclamation limiting the entry of immigrants to the U.S. based on whether they have health insurance.

Intending immigrants must have approved health insurance before or within 30 days of entry to the U.S. on an immigrant visa, according to the proclamation. Approved health insurance is coverage through employment, an unsubsidized plan from the market, a short-term health policy or visitor health insurance plan of at least 364 days, a catastrophic plan, a family member's plan, Medicare plans, and others.

If a person can't provide proof of health insurance, he or she must demonstrate possession of sufficient financial resources to pay for any foreseeable medical expenses.

These rules are only intended for individuals seeking an immigrant visa to enter the country. There are also some exceptions to the above. Immigrants that obtain their visa before the proclamation effective date are exempt, as are children of U.S. citizens. Those under 18 years of age are also exempt unless their accompanying parent is not. Foreigners deemed to be of national interest or who would further law enforcement objectives are allowed based on recommendations of the Secretary of State of his designee.

Enforcement of this proclamation will mean stricter requirements for immigrant visa applications and for consular processing.

The new requirements requirement of the health insurance for intending immigrants is part of the broader new "public charge" rule created by the Trump Administration to prevent immigrants from depending on government resources for subsistence.  The public charge rule's implementation, including the health insurance requirement, has been temporarily halted by a federal court on 10/11/2019. 

Federal Court Stops Enforcement of the "Public Charge" Rule

A federal court in New York issued an order enjoining the enforcement of the "public charge rule" that was scheduled to take effect on October 15, 2019.  It is a last minute relief to many individuals and legal professionals who are struggling to understand a complicated new rule and to complete a bunch of new and updated immigration forms including the I-485 and I-129 forms that were just released yesterday.  

The public charge rule is aimed at those who are deemed likely to become a burden on the government's resources. It was set to take effect on October 15, 2019, both within the U.S. and also overseas and at consulates. The Department of State (DOS) issued a final rule explaining the how public charge inadmissibility is determined and how it differs for each visa. 

People seeking to enter the U.S. as visitors or immigrants will have their assets, health, and educational background scrutinized by consular officers to determine admissibility to the U.S. Each component weighs either positively or negatively toward the alien's admissibility. There are many specific details that go into each aspect of the public charge rule. Any diagnosis that requires extensive medical care, institutionalization, or would interfere with the alien's ability to support themselves is a negative factor under health. Lack of health insurance is also a negative factor unless the alien has substantial resources to pay for medical costs. Officers also look at finances, specifically comparing household assets to household size and determining if they will need public benefits in the future. Other factors such as age, education level, skills, and employment history are taken into account. The consular officer himself passes judgement on whether he/she is convinced that the applicant will be a public charge.

U.S. Citizenship and Immigration Services (USCIS) was also set to enforce the new rule, releasing updated Form I-485 Application to Register Permanent Residence or Adjust Status and introducing a new Form I-944 Declaration of Self-Sufficiency. The forms were released on October 10th and USCIS will only accept these updated versions from October 15th onward. It has been difficult for the public to adjust to these changes in such a short interval, especially since the new form I-944 is complicated. The form requires information such as credit reports, assets, and liabilities, all of which can be difficult to gather in a short time frame. Timing is also critical for many of the applications, such as form I-485, where applicants must file within the month based on their priority date.

The American Immigration Lawyers Association (AILA) and a few other organizations filed a lawsuit against USCIS regarding this new rule. The court ordered that enforcement of the rule be temporarily halted until further notice. This is a moment's reprieve for the public, and old forms and rules can be used for the time-being. However, the enjoining is temporary and applicants should take the time to prepare for if and when the rule becomes effective.  

Diversity Visa Program ("Visa Lottery") 2021

Want a U.S. green card?  Maybe the visa lottery is the answer.  The Diversity Immigrant Visa Program 2021 is a visa lottery program created by U.S. Congress. It is also known as the Green Card Lottery. It is an annual program which opens to all individuals worldwide with approximately 55,000 visas available. For the fiscal year 2021, applicants must submit applications online between 10/2/2019 and 11/5/2019. 

Where to apply and what are the costs?

The lottery is free of charge! It is an official government immigration program and the U.S. Department of State supervises the program. The department has set up an official website where all applications have to be submitted. Official Application Website of the U.S. Government: www.dvlottery.state.gov.

Eligibility 

For DV-2021, natives of the following countries are not eligible to apply because these there were more than 50,000 natives immigrated to the United States from these countries in the previous five years:

Bangladesh, Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, El Salvador, Guatemala, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam.

Despite the fact that people born in mainland China are not eligible for DV-2021, those who born in Hong Kong SAR, Macau SAR, and Taiwan are eligible to apply.

If one was not born in an eligible country, there are two other ways the person may have a chance to be a qualified applicant:

(1) If the person's spouse was born in an eligible country, then the person can claim the spouse's country of birth as his/her birth country, and apply visa lottery based on the spouse's native country.  

(2) As long as neither of the applicant's parents was born in ineligible countries, and they were not residents of the ineligible country at the time when the applicant was born, the applicant would be able to apply for DV-2021 by claiming one of his/her parents' country of birth. For example, if an applicant was born in China mainland, but her parents were born in Taiwan and they were not residents in China mainland at the time of applicant's birth, then the applicant is eligible to apply.

Education and Work Experience Requirement

An applicant must either have a high school education or its equivalent, defined as successful completion of a 12-year course of elementary and secondary education; or two years of work experience within the past five years in an occupation requiring at least two years of training or experience to perform.

When and how to submit an entry

Entries for the DV-2021 program must be submitted electronically. Applicants may access the electronic DV Entry Form (E-DV) at www.dvlottery.state.gov during the registration period. Paper entries will not be accepted. DV-2021 registration opens from 12:00pm, Wednesday, October 2, 2019 to 12:00pm, Tuesday, November 5, 2019.

New for DV-2021

Principal entrants are required to provide the passport number, country of issuance, and expiration date for their valid passport in their applications. This requirement does not apply to dependents. Also, it does not apply to principal entrants who are stateless, obtained an individual waiver from the Secretary of Homeland Security and the Secretary of State, or a national of a Communist-controlled country and unable to get a passport from the home country.

Selection process

Lucky winners will be randomly selected by a computer system.  There is no way to improve the odds of getting selected.  As stated before, all eligible members within a family may apply individually, thus increasing the chance of winning.

How to find out the results

Beginning May 5, 2020, applicants will be able to check the status of their DV-2021 entries online.  Visit www.dvlottery.state.gov, click on Entrant Status Check, and enter the unique confirmation number and personal information. Entrant Status Check will be the only way that applicants may check the status of their applications.  It will also provide instructions to the winners of the visa lottery how to proceed with the application process, and also notify them of their appointments for their immigrant visa interview.

Tips:

The DV program has very strict technical requirements for submission. Entries not following the official instructions and requirements will be rejected and disqualified. Furthermore, DHS is technologically capable of identifying fraudulent entries, illegal entries or multiple entries. Also, do not wait until the last week of the registration period to enter. Heavy demand may result in website delays. When in doubt, don't hesitate to seek advice from a qualified immigration attorney.

S.386 - A Fight for Fairness

Recently, there has been a heated controversy surrounding the pending legislation of S.386 - Fairness for High-Skilled Immigrants Act of 2019. This bill was introduced by Senator Mike Lee, a Republican from Utah on February 7, 2019.   S.386's sister bill H.R. 1044, introduced by Democratic Representative Lofgren Zoe of California, was passed by the House of Representatives on July 10, 2019.  

Proposal to Change the Per-Country Cap

Section 202(a)(2) of the Immigration and Nationality Act imposes per-country limits on the number of family-based and employment-based immigrant visas granted every year to each country. Specifically, each country is allocated no more than 7% of the visa numbers available in each visa category.  The Fairness for High-Skilled Immigrants Act of 2019 aims at changing these limitations.  It increases the per-country cap on family-based immigrant visas from 7% to 15%.  The bill also seeks to completely eliminate the 7% cap for employment-based immigrant visas - this is the controversial part of the bill.

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Proponents of the Bill
The House version of the bill was passed rather uneventfully, with tremendous support by the hi-tech industry.  Proponents argue that the per-country cap is unfair to large countries such as India, with a population of 1.3 billion. Under the current visa system, countries of all sizes are allocated the same 7% of visa numbers, resulting in a much longer wait for countries such as India.  The shortage of American technical workers coupled with India's sustained emphasis in IT education and government incentives have created a large pool of Indian IT workers who are applying for U.S. immigrant visas.  Many of them are married with children and established residence in the U.S., but they must still face prolonged waiting times for their green cards and the associated uncertainties.  Proponents concede that this bill is not perfect and will prolong the waiting times of applicants of other nationalities. Nevertheless, they would rather get what they can now than wait for a better legislation which they argue would never come due to lack of political support.  They also emphasize that the "do no harm" and transitional provisions in the bill would protect the visa applicants who are already in the pipeline.

Opponents of the Bill
Despite the title of the bill, opponents argue that the bill is unfair to applicants from other countries. They recall the per-country cap was actually instituted to replace the previous quota system that discriminated against non-European countries.  They admit that the ultra-long waiting times for Indian nationals are unbearable and something should be done about it.  Rather than allocating most of the visa numbers to one country, they propose other measures including an overall increase of the current 140,000 worldwide employment-based immigrant visa quota, not counting dependent visa applicants towards the quota, etc.  They also point out that the current visa system actually efficiently distributes unused visa numbers despite the 7-percent country cap. For example, during the period of 2007-17, 280,523 visa numbers were issued to Indian applicants, representing about 20% of the 1,400,000 10-year quota.  Most importantly, they believe that the bill will virtually halt the immigration of skilled workers from other nations and workers in other fields such as health care and scientific research in the coming decade.

Status of the Bill 

The House version of the bill was passed in July.  S.386 is pending at the Senate. Last week it was put on a unanimous consent process, i.e., without an actual vote or a hearing. Senator Rand Paul reportedly blocked unanimous consent initially and then agreed to it after an agreement to admit 5,000 foreign nurses on temporary work visas for the next 10 years was reached. However, the bill failed to pass after unanimous consent was blocked by Senator David Perdue of Georgia on September 19. 

On September 25, Senators Mike Lee and David Perdue reportedly reached a agreement to provide 7,200 immigrant visas annually for foreign nurses and their dependents for 8 years in the EB-3 visa category.  After this agreement, Senator Lee's attempt to secure an unanimous consent vote on the bill failed again on September 26. 

S. 386 is still pending in the Senate as of this writing. The bill has attracted a great deal of attention in the media and social media since then, drawing heavy lobbying from both sides of the issue. One should not assume that it is a done deal.  Earlier this week, House Speaker Nancy Pelosi announced a formal impeachment inquiry of President Trump. Republican leaders have already expressed strong opposition to impeachment.  The White House will certainly take actions to defend the President. Fights of such a scale between the two parties may slow down or complicate any legislative process.  

October 2019 Visa Bulletin Predictions & Beyond

Every month after the release of the monthly visa bulletin, DOS Visa Office Chief Mr. Charlie Oppenheim provides his insights 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 October 2019 visa bulletin.

Note that USCIS will be using filing date chart for both employment-based and family-based immigration for October 2019.

All countries are expected to have monthly movement for family categories. The Philippines is noted to have insignificant demand, leading to "artificially rapid" movement in Final Action Dates. F2A worldwide demand is also very low. While F2A will remain current worldwide, Charlie expects demand to increase and Final Action Dates to be imposed in early 2020.

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Charlie says that EB-1 should not be expected to become current anytime soon. It is also unlikely that EB-1 China and India will have unused visa numbers going into FY2020. EB-1 India is expected not to advance until January 2020 and will likely remain backlogged for years. The rest of the world, including China, is predicted to continue advancing up to 3 months.

Unlike in past years, EB-2 China will not fully recover from retrogression in FY2020. It will advance slowly up to 2 months. EB-2 and EB-3 worldwide are expected to stay current until demand increases, which would likely be in the second half of the fiscal year. EB-2 India is expected to remain relatively stagnant.

EB-3 India and China are expected to have little to no movement. EB-3 Philippines may move up several months. Charlie notes that EB-3 Other Workers demand has skyrocketed for Mexico, which may necessitate the category having a separate Final Action Date from EB-3 Mexico in FY2020.

EB-4 is expected to remain current for most countries except El Salvador, Guatemala, Honduras, and Mexico.

EB-5 India and Vietnam will not be current for a while despite rumors. China and India will continue to have Final Action Dates as well. According to Charlie, it is too early to predict any advancements for EB-5.

October 2019 Visa Bulletin: Employment Categories Advance

The October Visa Bulletin - the first one in FY2020 - brings a new batch of visa numbers and some nice advancements for employment-based categories.  Importantly, USCIS has decided to use the Filing Date Chart for employment-based categories.

EB-1 Other countries' filing date moves forward to 07/01/2019.
EB-1 India is no longer unavailable and has a cutoff of 01/01/2015. The filing date retrogresses 6.5 months.
EB-1 China jumps forward 30 months. However, the filing date retrogresses a month.
EB-2 China retrogresses by 2 years to 01/01/2015. The filing date also retrogresses almost a year to 08/01/2016.
EB-3 China moves forward almost two years to 11/01/2015. The filing date moves forward to 03/01/2017.
EB-3 India leaps forward 3.5 years to 01/01/2009. The filing date retrogresses 2 months.

F2A remains current for all countries, with the filing date advancing 1 month to 08/01/2019. The rest of the FB categories continue to advance, with Mexico F1 advancing 1 year to 08/08/1997.

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

Family		Other Countries	China	India	Mexico	Philippines
F1	AD	01/15/2013	01/15/2013	01/15/2013	08/08/1997	07/01/2008
	FD	07/15/2013	07/15/2013	07/15/2013	11/15/1999	01/01/2009
F2A	AD	C	C	C	C	C
	FD	08/01/2019	08/01/2019	08/01/2019	08/01/2019	08/01/2019
F2B	AD	06/01/2014	06/01/2014	06/01/2014	08/01/1998	09/01/2008
	FD	12/01/2014	12/01/2014	12/01/2014	04/01/1999	03/01/2009
F3	AD	09/15/2007	09/15/2007	09/15/2007	02/22/1996	04/01/1998
	FD	03/15/2008	03/15/2008	03/15/2008	07/15/2000	10/01/1998
F4	AD	11/22/2006	11/22/2006	10/01/2004	12/15/1997	07/08/1998
	FD	05/15/2007	05/15/2007	06/01/2005	01/01/1999	01/08/1999

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	04/22/2018	11/01/2016	04/22/2018	01/01/2015	04/22/2018	04/22/2018	04/22/2018
	FD	07/01/2019	09/01/2017	07/01/2019	03/15/2017	07/01/2019	07/01/2019	C
EB2	AD	C	01/01/2015	C	05/12/2009	C	C	C
	FD	C	08/01/2016	C	07/01/2009	C	C	C
EB3	AD	C	11/01/2015	C	01/01/2009	C	10/15/2017	C
	FD	C	03/01/2017	C	02/01/2010	C	C	C
Other Workers	AD	C	01/01/2008	C	01/01/2009	C	10/15/2017	C
	FD	C	08/01/2008	C	02/01/2010	C	C	C
EB4	AD	C	C	07/01/2016	C	05/01/2017	C	C
	FD	C	C	08/15/2016	C	C	C	C
EB5	AD	C	10/22/2014	C	11/22/2017	C	C	10/15/2016
	FD	C	01/01/2015	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)

Notes:  The following two categories' (not listed above) AD have become "unavailable" in October 2019:- Certain Religious Workers for all countries.- 5th Regional Center (I5 and R5)