USCIS Offices to Re-open
The USCIS has announced that its offices would re-open to the public on June 4,2020. We are hopeful that other services including premium processing availability will shortly follow.
May Visa Bulletin
The Department of State has finally released the May Visa Bulletin and it has a few pleasant surprises. Most notably, EB1 for all other countries became current; all categories for PRC moved forward; and, India EB1 and EB3 each moved forward over 1 month. The EB3 Philippines category stayed retrogressed to Jan 1, 2017 which is most unfortunate since the majority of persons in this category are registered nurses which are badly needed in the US at this time. The USCIS has declared that for purposes of filing I-485 cases in May, we must use the Final Action Date chart.
Trump Executive Order Suspending Immigration
Today, President Trump issued an Executive Order that would suspend the issuance of immigrant visas (green cards) for a period of 60 days. The EO only applies to persons obtaining an immigrant visa from abroad and contains exemptions for a number of categories including healthcare workers. The exemption for healthcare workers may apply only to those entering the US specifically to combat COVID-19 but, that is not clear. With the on-going closure of US Consulates abroad and with immigrant visa numbers exhausted (retrogressed) in many categories until Oct 1, 2020, this EO has very little, if any, effect on employment based immigration. The EO does contain a foreboding announcement that within 30 days, an additional EO may be issued to address non-immigrant visas. Given this Administration's open disdain for the H-1b and L-1 programs and the repeated efforts to circumvent the current regulations and statutes, this may be an opportunity for them to achieve their goal of reducing legal immigration, just in time for the election.
USCIS Sued Again Over H-1b Denials
Last week, the USCIS was met with another Federal lawsuit claiming that they are failing to properly follow the law when adjudicating H-1b cases filed on behalf of market research analysts. A successful outcome could provide assistance for others; such as business analysts, systems analysts, telcom, and finance occupations where the USCIS has questioned whether they meet the specialty occupation standards. This lawsuit was backed by the American Immigration Council and more information can be found here.
CARES Act and Public Charge
Many of our clients who are legally working in the US and paying taxes have inquired as to whether or not receipt of the 1 time payments under the CARES Act i.e. $1200 would be considered the receipt of public benefits and subject them to a finding of being a public charge ? The short answer is no. The American Immigration Lawyers Association (AILA) has provided a more detailed opinion below: On March 27, 2020, President Trump signed into law the Coronavirus Aid, Relief, and Economic Security (CARES) Act, a $2 trillion dollar economic recovery package. The package offers relief to state and local governments, individuals, small and large businesses, and hospitals affected by the 2019 novel coronavirus (COVID-19) pandemic. In particular, the CARES Act provides for the issuance of one-time payments, called recovery rebates, (or commonly known as “stimulus checks”) to help individuals recover from the economic impacts of the COVID-19 pandemic. Eligible individuals with an adjusted gross income up to $75,000 can receive a one-time payment of $1,200. Married couples filing a joint tax return are eligible to receive a payment of $2,400, as long as their adjusted gross income is less than $150,000. Eligible individuals can also receive an additional $500 for each eligible child under the age of 17. The recovery rebates are structured as automatically advanced tax credits to be disbursed by the Treasury Department. The DHS final rule on inadmissibility on public charge grounds is clear that tax credits are not taken into account for the purpose of a public charge determination. DHS indicates in its final rule that only public benefits as defined in 8 CFR 212.21(b) will be considered in the public charge inadmissibility determination. 8 CFR 212.21(b) defines a public benefit to include means-tested programs like Medicaid and cash assistance for [...]
Delays to H-1B CAP Notices due to COVID-19
In a recent stakeholder message, a copy of which can be found here, USCIS has confirmed that the COVID-19 pandemic will cause delays in data entry and notice generation for CAP cases. Even though cases could be filed starting April 1, 2020, USCIS does not expect to be able to get notices out for cases filed until May 1, 2020. Cases will still retain their original receipt date for petitions that have time sensitive issues and USCIS notes that they are mindful of these time sensitive cases. However, USCIS still expects this to cause a delay in adjudication of CAP cases this year. USCIS will not extend the original filing window in the registration notice and there is no new update on when premium processing will be reinstated. As more updates become available we will share with our clients.
International Healthcare Workers to Help with COVID-19 Relief ?
As many hospitals in the US are at their breaking point due to the spread of COVID-19, some relief may be available from international physicians and RN's but, they are often being blocked by restrictive immigration policies. Check out this recent story from the New York Times.
USCIS Takes Another One to the Chin !
In a series of recent Federal Court decisions, rulings have been issued declaring that the USCIS at the direction of the Trump Administration have been illegally denying H-1b visas on grounds that have no legal or factual basis. A nice summary of these cases can be found in this recent Forbes article. The article, written by immigration policy expert, Stuart Andreson from NFAP, contains links to the actual cases if you want to read the full opinions. With Federal Court adverse decisions coming from multiple courts with a mix of Republican appointed and Democrat appointed judges and with no reversals from any Federal Appellate Court, one has to wonder at what point the USCIS gets tired of being punched in the mouth and throws in the towel and returns to actually following the law as it is written ? (maybe only Stephen Miller can answer that question ?) These cases were all brought by Heavyweight Champ Jonathan Wasden. Kudos to him and his firm. Litigators extraordinaire !
Trump Immigration Policies Limit RN’s
During this current healthcare crisis and severe nursing shortage it is worth noting that the Trump Administration has imposed significant hurdles on bringing international RN's into the U.S. These changes have no legal basis but, are simply part of the practice of the WH to limit legal immigration. Bloomberg did a nice summary. And, if you are looking for a recent study discussing the quality of international RN's check this out from NYU. And, more on this situation from Forbes.
H-1b Cap Lottery Update
The USCIS announced earlier this week that almost 275,000 registrations were submitted by U.S. employers for the 85,000 available lottery spots. This number was an increase of over 33% when compared to last years 201,000 filings. This increase is attributed to the new electronic registration process as well as the robust economy (remember that time only a few weeks ago). Of the 275,000 registrations 46% were for individuals with a US graduate degree. The period for filing completed petitions opened on April 1 and will end on July 1, 2020. For individuals that need to take advantage of the cap-gap rules, the full 90 day filing window is not applicable and those petitions must be filed prior to the expiration of the OPT EAD. Given the realities of COVID-19, and the number of lay-offs occurring, it is unlikely that all persons selected in the lottery will have petitions filed for them which will then open up the opportunity for those not originally selected to then be selected and possibly at a time when the economy is in a better state.