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/

Tuesday, August 4, 2020

Should I file I-944 with I-485?

After the Public Charge rule has been enjoined by a New York federal court on July 29, 2020, many applicants for I-485 adjustment of status wonder if they should submit the I-944 (Declaration of Self-Sufficiency) with their I-485 applications.  

USCIS confirmed on July 31, 2020, that the agency will follow the federal court decision and stop applying the Public Charge rule as long as the court decision is in effect.  This policy covers I-485 and also other non-immigrant applications such as the Form I-129 and Form I-539 for status changes. 


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USCIS also confirmed that applicants do not have to include the I-944 with their I-485 applications postmarked on or after July 29, 2020.  They also do not have to provide information regarding receipt of public benefits in applications submitted on or after that date. 

Monday, August 3, 2020

USCIS Office Reopening Visitor Policy



USCIS offices have begun to reopen, but the pandemic is still ongoing. To minimize contagion, USCIS has announced that all visitors must wear a face mask/covering in their offices. Those that refuse to do so will not be allowed to enter. 

Other preventative procedures for office appointments are similar to what was announced in June. Applicants may only bring their attorney, an assistant for disability, or family members listed as dependents on the appointment notice. Minors are allowed one trusted adult with them. Interpreters are generally allowed but should be available by phone in certain cases. 

Naturalization ceremonies will only allow the citizen-to-be and any person assisting them with disability. This  means no family or friends can attend the actual ceremony. As always, anyone feeling sick or who has been around a sick person can and should reschedule as per their appointment notice and will not be penalized for doing so. 

Video interviews are also being rolled out slowly in different districts. 

Overall, while appointments have resumed, applicants and visitors must be prepared to comply with altered procedures. USCIS offices can deny entry to uncooperative people. It is in an applicant's best interest to follow these rules both for their own health and for the sake of their application.

Executive Order Regarding Federal Contracts and H-1B Workers


President today signed another executive order limiting employment of foreign workers including H-1B employees in the U.S.  The Executive Order, entitled "Executive Order on Aligning Federal Contracting and Hiring Practices With the Interests of American Workers", mandates Federal agencies to review their contracting and hiring practices to ensure that priority is given to American workers.   The review will include contract work to be performed inside and outside of the United States, as well as and sub-contract work.  The Executive Order also once again requests DOL and DHS to investigate any violations of the H-1B program regarding working conditions, wages, etc., specifically targeting secondary employers and off-site employment.  

Wednesday, July 29, 2020

Enforcement of Public Charge Rule Halted by Court



A federal court today put a stop to the enforcement of the Public Charge Rule by the Trump Administration, removing a major roadblock for immigrants to apply for green cards.

Since its effective date of February 25, 2020, the rule has required visa applicants to prove that they are not likely to be financially dependent on the government.  Green card applicants must complete the new  Form I-944, Declaration of Self-Sufficiency and provide extensive financial documents including tax returns, credit reports, as well as documents regarding their assets, liabilities, health insurance, etc. 

Today, District Court Judge George B. Daniels in New York issued nationwide preliminary injunctions to enjoin the enforcement of the rule by the Department of Homeland Security and U.S. Citizenship and Immigration Services. 

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It means that, at least for now, green card applicants are not subject to the requirements of the Public Charge Rule. The case will likely be reviewed by the U.S. Supreme Court, which had previously removed prior injunctions on the enforcement of the rule




DHS Limits Dreamers to File Extensions Only





Breaking News - The Trump Administration will not accept new applications for DACA and will limit the renewals to one year only.

On July 28, 2020, the Acting Secretary of Department of Homeland Security, Mr. Chad F. Wolf, issued a memorandum, which takes effect immediately, to temporarily restrict DACA applications filed by dreamers. Mr. Wolf states that these measures are in place while DHS is re-evaluating the DACA program. The memo is issued a month after the split U.S. Supreme Court decided to stand with the dreamers.


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Effective immediately, DHS will:
  • Reject all initial DACA and Associated Employment Authorization (EAD) Applications. 
  • Reject all pending and future Advance Parole Applications from DACA applicants without extraordinary circumstances. 
  • Process properly submitted DACA Renewals and EADs as normal. Extensions will be limited to one year instead of the normal two years for both DACA status and the associated EAD. 

The Supreme Court's decision only pointed out the procedural failure of the Trump Administration's attempt to revoke DACA, but did not address the merits of the DACA program. It is believed that the July 28, 2020 memorandum lays another groundwork for the Trump Administration to cancel this program. 

Immigrant rights groups and organizations will likely raise legal challenges against the memo soon. But until any further legal actions materialize, many dreamers' dreams may already have been crushed by these temporary restrictions.








Saturday, July 25, 2020

Can F-1 Students take Remote Classes in the Fall?

Admission to a top American university is surely a cause for celebration.   However,  international students have a lot to consider before packing their bags for the U.S.  In addition to various visa and travel restrictions imposed by the U.S. and other governments, they also have to worry about the policy changes regarding remote learning during COVID-19.  

In general, students on F-1 status are only allowed to take one online course (up to 3 credits) each semester. M-1 students are not allowed to enroll in any online classes. On March 9, 2020, out of health considerations, ICE relaxed the requirement by permitting foreign students to count more online classes towards a full course of study in a broadcast message.  However, ICE abruptly canceled such exemption on 7/6/2020, without prior warning. After lawsuits were filed by Harvard, MIT and other colleges, DHS agreed to restore the March guidance on 7/14/2020. On 7/24/2020,  Student and Exchange Visitor Program (SEVP) issued another guidance clarifying its distance learning policy for F-1 and M-1 students. The following Q&As summarize the current status of this issue:



Q: I have been studying in the U.S. since March 2020, have never left the country,  and am starting my third year of study.  My university offers only online classes in the fall.  Can I take them? 

Yes, assuming you have been in valid F-1 or M-1 status since March 9, 2020, you may continue to take online classes based on the March 9, 2020 policy.

Q: I was studying in America in March but went back to my home country for spring break and got stuck there due to travel restrictions. I have been distance-learning since then. Now I can go back to the States for the fall semester, but my school is providing only remote learning classes. Am I able to re-enter the U.S. as an F-1 student? 

Yes, under the March 9, 2020 guidance, as long as you were enrolled in valid F-1 status on March 9, even though you went outside of the U.S. and have taken online classes, you may still return to the U.S. in the fall to enroll with online classes only.

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Q: I was accepted for admission by an American university this summer and am currently staying in my home country.  For safety reasons, my university has adopted a 100% remote learning method. Am I able to enter the U.S. as an F-1 student to start school in the fall? 

Unfortunately, if you were not enrolled in valid F-1 student status on March 9, 2020, you are not able to benefit from the exemption. If your university offers only remote learning, you will not be issued an I-20 or visa to study in the U.S. 

Q.  To follow up with the above question, do I have other options?

Other than continuing your study remotely in your home country, you may consider requesting for a deferral of study to the spring semester.  If the university has affiliated schools in your home country, you may also consider attending. 

Q: I entered the U.S. as a B-2 visitor and my request to change status to F-1 was recently approved by USCIS.  Am I able to take only remote classes in the fall?  

No, SEVP made it clear that students who enroll with schools after March 9 are not exempt from the usual requirement.  You may only take at most 3 credits of online class. 

Q. My university told me that they offer "hybrid" programs in the fall.  Do they count as in-person or remote learning?  

One of the exemptions provided in the July 7th ICE guidance is the hybrid study model.  Specifically, a hybrid program is not treated as remote learning so long as the school certifies in the Form I-20 that 1) the program is not entirely online; 2) the student is not taking an entirely online course load in the term; and 3) the student is taking the minimum number of online courses necessary to make normal progress toward his/her degree.  It is unclear if ICE will issue further guidance regarding hybrid programs.  


There are still some unanswered questions regarding in-person vs. remote learning for foreign students.  Universities are adopting different strategies when dealing with the pandemic, balancing the safety of students and faculty with academic and other interests.  Their approaches are hardly uniform.  Until the pandemic is under control, we urge the U.S. government to continue exercising flexibility when handling foreign student applications.  

Friday, July 24, 2020

August 2020 Visa Bulletin: EB-1, EB- 3 India and China Advance




There are nice advancements in both Employment and Family visa categories, partially due to Trump's overseas visa ban.  EB-1 advances significantly in August 2020 for India and China.


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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
08/15/2014
08/15/2014
08/15/2014
12/22/1997
09/01/2011
FD
06/08/2015
06/08/2015
06/08/2015
02/01/2000
06/08/2012
F2A
AD
      C
      C
      C
      C
      C
FD
07/01/2020
07/01/2020
07/01/2020
07/01/2020
07/01/2020
F2B
AD
06/08/2015
06/08/2015
06/08/2015
03/22/1999
04/01/2011
FD
03/15/2016
03/15/2016
03/15/2016
11/08/1999
12/01/2011
F3
AD
06/01/2008
06/01/2008
06/01/2008
07/15/1996
11/15/2001
FD
05/08/2009
05/08/2009
05/08/2009
08/01/2000
08/22/2002
F4
AD
09/08/2006
09/08/2006
02/22/2005
06/15/1998
09/01/2001
FD
09/01/2007
09/01/2007
11/08/2005
04/01/1999
05/08/2002

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
C
02/08/2018
C
02/08/2018
C
C
C
FD
C
07/01/2018
C
07/01/2018
C
C
C
EB2
AD
C
01/15/2016
C
07/08/2009
C
C
C
FD
C
08/01/2016
C
08/15/2009
C
C
C
EB3
AD
04/01/2019
02/15/2017
04/01/2019
10/01/2009
04/01/2019
04/01/2019
04/01/2019
FD
04/01/2020
05/01/2017
04/01/2020
02/01/2010
04/01/2020
04/01/2020
04/01/2020
Other Workers
AD
04/01/2019
08/01/2008
04/01/2019
10/01/2009
04/01/2019
04/01/2019
04/01/2019
FD
04/01/2020
10/01/2008
04/01/2020
02/01/2010
04/01/2020
04/01/2020
04/01/2020
EB4
AD
C
C
04/01/2017
C
06/15/2018
C
C
FD
C
C
10/01/2017
C
C
C
C
EB5
AD
C
08/08/2015
C
C
C
C
07/22/2017
FD
C
12/15/2015
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)

USCIS Will Stay Open Until August 31


USCIS, the government agency responsible for processing U.S. immigration-related applications, agreed to postpone the furlough of its workers until at least August 31, according to an announcement by Senator Patrick Leahy from Vermont. 

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Tuesday, July 21, 2020

Trusted Traveler Programs Enrollment Center Closed until September 7, 2020




If you have an appointment for enrollment with a Trusted Traveler Program (TTP), you will likely have to reschedule it.  Global Entry is one of the TTP programs. 

Custom and Border Protection (CBP) announced that Trusted Traveler Programs enrollment centers will remain closed until at least September 8, 2020.  Applicants who have interviews scheduled on or before September 7, 2020, would have to reschedule their appointments. 

At the same time, CBP has extended the conditional approval period from 365 days to 545 days.  Further, those who apply for renewal of their current TTP program before expiration of their current membership will have their benefits extended for up to 18 months.  

Monday, July 20, 2020

National Interest Exceptions for Qualified Schengen, U.K., Ireland Travelers



People from the Schengen Area, U.K., and Ireland may be able to travel to the United States as National Interest exceptions to Presidential Proclamations (PP) 9993 and 9996, which suspended entry due to COVID-19.

The Schengen Area refers to the following European countries: Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, and Switzerland. The United Kingdom is composed of England, Scotland, Wales, and Northern Ireland.

Investors, treaty traders, F-1 and M-1 students, and qualified business travelers applying for or who have valid visas or visa waiver authorization can enter as National Interest exceptions. F-1 and M-1 students do not need to seek exemption through national interest. J-1 students will need to seek permission by contacting the closest consulate.

How do one qualify for the "national interest" exception?  There is no hard and fast rule.  Basically, non-immigrants whose travel would bolster America's economy and/or assist in public health can request to enter. It would be best to consult a qualified immigration attorney beforehand to find out if you qualify before attempting travel.

Sunday, July 19, 2020

The End of Preferential Treatment of Hong Kong


The Executive Order on Hong Kong Normalization (Executive Order), signed by President Trump on 07/14/2020, strips away the preferential treatment that Hong Kong has enjoyed since the return of the British crown colony to China in 1997.  To the city of about 7.5 million people, the changes will be drastic. 

Under the United States-Hong Kong Policy Act of 1992, the United States has continued to treat the city differently from China, in areas of immigration, trade, taxation, technology and cultural changes, export control, etc.  For example, when adjudicating immigrant visa applications, Hong Kong is considered a separate state and has its own per-country quotas.  Trump's Executive Order has put all these to an end. 

Perhaps the real victims of the current political crossfires are the regular citizens of Hong Kong. People who were born in Hong Kong and those who hold Hong Kong Special Administrative Region passports will be affected by the Executive Order.

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In the area of immigration, Hong Kong applicants will be treated as Chinese nationals and have to wait a lot longer for visa numbers. Currently, the waiting times for family immigration are similar for both places.  However, for employment-based applications, there are huge differences in waiting times.  For example, for applications requiring a graduate degree, visas are immediately available for Hong Kong applicants now.  For Chinese applicants, visas are available only for those who applied before November 15, 2008. 

For non-immigrant visas, Hong Kong people generally enjoy longer term visas. For instances, common work visas including H-1B and L-1A can be issued for up to a maximum of 60 months for Hong Kong applicants.  Chinese nationals are only granted maximums of  12 months and 24 months respectively for these two types of visas. 

Regarding the B-1/B-2 visitor visas, both Hong Kong and Chinese applicants are both granted a maximum of 10 year visas.  However, under the Executive Order, Hong Kong applicants will have to register their visas in the Electronic Visa Update System (EVUS) like the Chinese applicants. 

These changes are only the tip of an iceberg.  The Executive Order will bring about many more changes to Hong Kong people in the months to come.  Not everything in the Executive Order is negative.  Trump has requested to reallocate the annual admission quotas for refugees specifically for residents of Hong Kong based on "humanitarian concerns," in anticipation of an influx of asylum seekers from the island city.  

What can Hong Kong applicants do now? Trump gave his deputies 15 days to start taking actions to implement this Executive Order.  The resulting regulatory process will likely take months to complete.  Hence, the existing system will remain the same for the near future.  Given the long history of U.S.-Hong Kong relationship, it will take some time to untangle all the current regulations and practices.  Furthermore, it is unlikely that the new rules will be applied retroactively.  Hence, as far as immigration is concerned, it is wise for Hong Kong applicants to submit their applications as soon as possible before any new rules take effect.