D&S Immigration Update: New Public Charge Inadmissibility Rule


Under a newly-published regulation that is expected to take effect on October 15, 2019, foreign nationals who have received certain federal public benefits or who are deemed likely to become dependent on the government will face additional scrutiny when applying for certain immigration benefits and may be found inadmissible to the United States as a result.

The new rule changes the standards used to determine whether an applicant for admission to the U.S. or for adjustment of status is “likely at any time to become a public charge” at any time in the future. To make this determination, USCIS adjudicators will consider factors including the individual's age, health, education and skills, in addition to their current assets, resources, and financial status and whether they have used any covered public benefits in the past. The new rule also changes the definition of “public charge” from a noncitizen who primarily relies on public benefits to a noncitizen who receives a specified public benefit for more than 12 months in the aggregate within any 36-month period.

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USCIS Grants Adjudicators Full Discretion to Deny Filings Without Issuing a Request for Evidence

Today, Friday, June 13, 2018 U.S. Citizenship and Immigration Services (USCIS) posted a policy memorandum (PM) that provides USCIS adjudicators full discretion to deny an application, petition, or request without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) when required initial evidence was not submitted or the evidence of record fails to establish eligibility.

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USCIS Policy Memo Expands USCIS's Ability to Place Foreign Nationals in Removal Proceedings

The United States Citizenship and Immigration Service (USCIS) recently issues a new Policy Memorandum (PM) titled Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens.”  This new guidance stems from the January 25, 2017 Executive Order “Enhancing Public Safety in the Interior of the United States” and it seeks to expand the instances in which USCIS must issue Notices to Appear (NTAs) when denying certain applications for benefits, such as requests for extensions of status, changes of status, and adjustment of status.  

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USCIS Announces Temporary Suspension of Premium Processing Service for FY2019 H-1B Cap Subject Petitions

Today, March 20, 2018, USCIS announced that it will be suspending premium processing service for H-1B cap-subject petitions for fiscal year 2019.  The temporary suspension is expected to last until September 10, 2018 and applies only to FY2019 cap-subject petitions, meaning those that are being filed as cap-exempt, including requests for change of H-1B employer, extension of H-1B status, and H-1B petition amendments, for example, will continue to be eligible for premium processing service. 

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Media Reports Suggest Changes to AC-21

1/9/2018 UPDATE: USCIS has confirmed with news sources that it is NOT currently considering changing its interpretation of AC-21.

Media reports have been circulating which suggested that new regulations eliminating H-1B extensions beyond the six-year limit under The American Competitiveness in the 21st Century Act (AC-21) may be proposed.

While D&S is closely monitoring the situation, it is important to stress that as today, January 8, 2018, these reports remain unsubstantiated.  At this point, there has been no confirmation from the Department of Homeland Security (DHS) or any other government agency that the current administration is planning to take action to restrict or eliminate AC-21 benefits. Note that it would be unlikely and difficult for DHS to implement this change without going through the formal rulemaking process, which can take several months and requires a period of public notice and comment. Further, as of today, no rules have been proposed and no AC-21 related immigration rules appear on the agency’s recently-published regulatory agenda. Therefore, individuals with approved I-140 petitions or labor certifications filed more than one year before their final date in H-1B status continue to be eligible for H-1B extensions beyond the six-year limit at this time.

Again, D&S continues to review and monitor all actual proposed changes and will be updating clients in the coming days, weeks and months as any proposed immigration-related regulatory changes are introduced and reviewed.



USCIS To Resume In-Person Interviews For Employment-Based AOS Applicants Starting October 1, 2017

On August 28, 2017, United States Citizenship and Immigration Service (USCIS) announced on its website that, starting October 1, 2017, the agency will require applicants for employment-based adjustment of status (“green cards”) to appear for an in-person interview at a local USCIS office as part of the green card adjudication process.

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The RAISE ACT (Reforming American Immigration for Strong Employment)

Today, August 2, 2017, Republican Senators Tom Cotton (Arkansas) and David Perdue (Georgia), with the support of President Trump, announced the Reforming American Immigration for Strong Employment (RAISE) Act, a bill which would amend the Immigration and Nationality Act and implement significant changes to the current U.S. immigration system.

The RAISE Act primarily focuses on significant reforms to the bases for immigrant visa (“green card”) eligibility. In addition to provisions eliminating the Diversity Immigrant Visa program and limiting the number of refugees admitted to the U.S. to 50,000 per year, the RAISE Act would replace the current employment-based preference system with a points-based system and would eliminate some of the current family-based green card categories.

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D&S Update: Delay of Effective Date of Final Rule on Parole for Start-Up Entrepreneurs

The Department of Homeland Security (DHS) has issued an update to the Federal Register postponing the effective date of the Final Rule on Parole for Start-Up Entrepreneurs until March 14, 2018.

Prior to the postponement, the rule was set to become effective next week, on July 17, 2017. Once effective, the rule would permit DHS to grant parole to qualified foreign entrepreneurs on a case-by-case basis where the entrepreneur can demonstrate, substantial and demonstrated potential for rapid business growth and job creation and that they would provide a significant public benefit to the United States.

According to DHS, this delay will provide an opportunity to obtain comments from the public regarding a proposal to rescind the rule pursuant to the Trump Administration's January 25, 2017 Executive Order, ‘‘Border Security and Immigration Enforcement". 

Comments are due by August 10, 2017. 

USCIS Announces Further Measures to Detect H-1B Visa Fraud and Abuse

Today, Monday April 3, 2017, U.S. Citizenship and Immigration Services (USCIS) announced multiple measures to “deter and detect H-1B visa fraud and abuse,” including targeted site visits and a new avenue for H-1B visa holders and U.S. workers to report potential violations of the H-1B visa program.

Effective immediately, USCIS will also take a more targeted approach when making site visits to H-1B petitioners and the worksites of H-1B employees. USCIS has indicated that the targeted site visits will focus on:

  • Cases where USCIS cannot validate the employer’s basic business information through commercially available data;
  • H-1B-dependent employers (those who have a high ratio of H-1B workers as compared to U.S. workers); and
  • H-1B workers who work offsite at another company or organization’s location.

USCIS will continue to conduct random, unannounced administrative site visits nationwide. However, USCIS has indicated that the addition of these targeted site visits will allow the Agency to focus resources where they believe fraud and abuse of the H-1B program may be more likely to occur.

The Agency further clarified that the site visits are not meant to target nonimmigrant employees for any kind of criminal or administrative action, but rather to identify employers who are abusing the H-1B visa program.

USCIS has also established an email address which will allow individuals (including both American workers and H-1B workers who suspect they or others may be the victim of H-1B fraud or abuse) to submit tips, alleged violations and other relevant information about potential H-1B fraud or abuse.

USCIS Updates H-1B Adjudication Guidance for Computer-Related Occupations

On Friday, March 31, 2017, U.S. Citizenship and Immigration Services (USCIS)  published a policy memorandum which updates guidance related to determining whether certain computer-related positions qualify as a specialty occupation for H-1B eligibility. This memo rescinds the Agency’s long-standing position that adjudicators should “generally consider the position of programmer to qualify as a specialty occupation,” as outlined in their December 22, 2000 “Guidance memo on H1B computer related positions.”

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