Proposed Immigration Rule – Inadmissibility on Public Charge Grounds

Posted in Adjustment of Status, Department of Homeland Security, Immigrant Visa, Immigration and Nationality Act, Immigration Law, Immigration Reform, Non-Immigrant Visas, USCIS

USCIS has proposed rules that could deny entry to non-immigrants seeking admission to the United States and adjustment of status to permanent residence to immigrants if they rely on public benefits for food, housing or medical care, and other forms of public assistance. The proposed rule – “Inadmissibility on Public Charge Grounds” – is published in the Federal Register. The public may comment on the proposed rule during the 60-day comment period ending on Dec. 10, 2018. USCIS will review comments to the proposed rule and then revise and issue a final public charge rule that will include an effective date. In the interim, and until a final rule is in effect, USCIS will continue to apply the current public charge policy.

Pursuant to Section 212(a)(4) of the Immigration and Nationality Act (INA), an individual seeking admission to the United States or seeking to adjust status to permanent resident (obtaining a green card) is inadmissible if the individual “at the time of application for admission or adjustment of status, is likely at any time to become a public charge.”

Under 8 U.S.C. § 1601 (PDF)(1), “Self-sufficiency has been a basic principle of United States immigration law since this country’s earliest immigration statutes.”

Further under 8 U.S.C. § 1601 (PDF)(2)(A), “It continues to be the immigration policy of the United States that aliens within the Nation’s borders not depend on public resources to meet their needs, but rather rely on their own capabilities and the resources of their families, their sponsors, and private organizations.”

While self-sufficiency has been the guiding principle of U.S. immigration law, as indicated in the above federal regulations, “public charge” has not been defined in statute or regulations. According to USCIS, there has been insufficient guidance on how to determine if an alien who is applying for a visa, admission, or adjustment of status is likely at any time to become a public charge. In determining inadmissibility USCIS has used the definition of “public charge” as an individual who is likely to become “primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance, or institutionalization for long-term care at government expense.” (See, “Field Guidance on Deportability and Inadmissibility on Public Charge Grounds,” 64 FR 28689 (May 26, 1999). In determining whether an alien meets this definition for public charge inadmissibility, USCIS considers several factors, including age, health, family status, assets, resources, financial status, education, and skills. No single factor will determine whether an individual is a public charge.

The proposed rule will apply to foreign nationals seeking admission to the United States on non-immigrant and immigrant visas, as well as those non-immigrants who have availed themselves of public benefits within the United States and are seeking to seeking to either extend their stay or change their status. Under the proposed rule, USCIS would only consider the direct receipt of benefits by the individual alien applicant. Receipt of benefits by dependents and other household members would not be considered in determining whether the alien applicant is likely to become a public charge.

Factors that would generally weigh heavily in favor of a finding that an individual is likely to become a public charge include the following:

  • The individual is not a full-time student and is authorized to work, but cannot demonstrate current employment, has no employment history, or no reasonable prospect of future employment;
  • The individual is currently receiving or is currently certified or approved to receive one or more of the designated public benefits above the threshold;
  • The individual has received one or more of the designated public benefits above the threshold within the 36 months immediately preceding the alien’s application for a visa, admission, or adjustment of status;
  • The individual has been diagnosed with a medical condition that is likely to require extensive medical treatment or institutionalization or that will interfere with the alien’s ability to support himself or herself, attend school, or work, and the alien is uninsured and has no prospect of obtaining private health insurance; or
  • The individual has previously been found inadmissible or deportable based on public charge.

Alternately, factors that would weigh strongly against a finding that a foreign national is likely to become a public charge include:

  • The individual has financial assets, resources, and support of at least 250 percent of the Federal Poverty Guidelines for a household of the alien’s household size; or
  • The individual is authorized to work and is currently employed with an annual income of at least 250 percent of the Federal Poverty Guidelines for a household of the alien’s household size.

This proposed rule could have wide-reaching effects on legal immigration to the United States. The rule proposes not only to define “public charge” and the factors to be considered in making current and prospective public charge determinations, but also to add requirements for “public charge bonds” for certain applicants who are more likely to become a public charge. It is important for interested parties to comment on this proposed rule by the Dec. 10, 2018 deadline.

President Trump Signs Continuing Resolution into Law

Posted in Continuing Resolution (CR), H.R. 6157

The President today signed H.R. 6157, a bill making Appropriations for Defense and Labor Health and Human Services & Education with a continuing resolution for other government programs not reauthorized by Oct 1. The continuing resolution prevents a government shutdown and extends vital programs, such as the EB-5 immigrant investor program, among others until Dec. 7.

To date, Congress has approved five of 12 appropriations bills. A four-bill minibus is in conference and the balance of three appropriations bills await further action. It is widely believed that additional congressional action will occur after the upcoming mid-term elections in November.

U.S. Senate Passes Minibus Appropriations Bill with Continuing Resolution

Posted in Continuing Resolution (CR), EB-5 Program

Yesterday, by a bipartisan vote of 93-7, the U.S. Senate passed H.R. 6157, making appropriations for the Department of Defense and Labor, Health and Human Services, Education and related agencies and providing for continuing appropriations until Dec. 7 for other programs, including EB-5 immigrant investor program extension.  

This appropriations package funds the two largest segments of the U.S. budget, which are among the top priorities for annual funding. The inclusion of the Continuing Resolution in this strategic and important legislative package helps to ensure consideration and passage before appropriations lapse on Sept. 30. 

The House is expected to take up the Senate-passed legislation next week upon their return from break. 

 

Challenges with “Function Manager” Positions in the L-1A and EB-1 Multinational Manager Classifications

Posted in EB-1, L-1

In today’s world of evolving multinational organizations, from hierarchical to flat structures, and increased scrutiny of the L-1 visa category by U.S. Citizenship and Immigration Services (USCIS), the challenges of the “function manager” position within the L-1A visa and First Preference Employment-based immigrant visa for Multinational Managers or Executives (EB-1 MM) classifications continue to cause concern for immigration practitioners, petitioning U.S. companies, and beneficiaries.

Functional Manager petitions filed with USCIS continue to be challenged with lengthy requests for evidence, requiring detailed information of company payroll records and W-2 statements of professionals managed, detailed managerial job duties for the position abroad and the prospective U.S. position, and detailed organization charts evidencing names, job titles, salaries, academic qualifications, and brief summaries of duties of professionals managed by the beneficiary.

The L-1A visa classification enables U.S. employers to transfer executives or managers from an affiliated foreign office to an affiliated office in the United States for a temporary period of stay.  Among other requirements, eligibility for this managerial classification requires the beneficiary to evidence that he or she:

  • Manages the organization, or a department, subdivision, function, or component of the organization;
  • Supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function within the organization, or a department or subdivision of the organization;
  • Has the authority to hire and fire or recommend those as well as other personnel actions (if another employee or other employees are directly supervised); if other employees are not directly supervised, functions at a senior level within the organizational hierarchy or with respect to the function managed; and
  • Exercises discretion over the day-to-day operations of the activity or function over which the employee has authority.

See 8 CFR 214.2(l)(1)(ii).

To qualify for an EB-1 MM, the beneficiary must evidence that he or she was employed outside the United States in the three years preceding the proposed transfer for at least one year by a foreign affiliate, subsidiary, or parent of a U.S. corporation in a managerial or executive capacity.  The “managerial” requirements for this category are the same as under the L-1A classification described above.

As noted above, “managerial capacity” for the L-1A and EB-1 MM classifications envisages “personnel” management or “functional” management. Unfortunately, while the rules relating to managing employees are fairly well established, there has been less clarity regarding what is required to qualify a manager of an essential function –  referred to as a “function manager” or “functional manager.”

This ambiguity was clarified when USCIS issued a policy memorandum dated Nov. 8, 2017, which provides guidance for officers adjudicating L 1A petitions for function managers. This memo is based on the ruling from the Administrative Appeals Office (AAO) in Matter of G- Inc., which is now an adopted decision and binds all USCIS employees including adjudicating officers.

Matter of G- Inc  and the USCIS Policy memorandum have helped us further understand USCIS’s concept of “function manager.”  Under its prior decision in Matter of Z-A, the AAO held that an L‑1A intra-company manager who primarily manages an essential function can also be supported by personnel outside the United States within an international organization who perform the day-to-day administrative and operational duties.

Matter of G- Inc. clarifies that, to establish that a beneficiary will be employed in a managerial capacity as a “function manager,” the petitioner must meet a five prong test and demonstrate that: (1) the function is a clearly defined activity; (2) the function is “essential,” i.e., core to the organization; (3) the beneficiary will primarily manage, as opposed to perform, the function; (4) the beneficiary will act at a senior level within the organizational hierarchy or with respect to the function managed; and (5) the beneficiary will exercise discretion over the function’s day-to-day operations.

In its decision, the AAO noted that “essential function” means a “necessary,” “core,” or “fundamental” activity of a petitioning organization. Once the petitioner demonstrates the essential or core function, it must then establish that the beneficiary’s position meets all the remaining criteria for “managerial capacity” as defined in INA 101(a)(44)(A). The petitioner must show that the beneficiary will primarily manage that essential function by clearly describing the beneficiary’s duties and indicating the proportion of time dedicated to each duty. See 8 C.F.R. § 204.5(j)(5). The AAO noted that while he or she may perform some operational or administrative tasks, the beneficiary must primarily manage the essential function.

In determining whether the remaining criteria were satisfied, the AAO considered all factors relevant to these criteria, including the nature and scope of the petitioner’s business; the organizational structure and staffing levels; the value of the budgets, products, or services that a beneficiary will manage; and any other factors, such as operational and administrative work performed by staff within the organization, that will contribute to understanding the beneficiary’s actual duties and role in the business.  While it may be more challenging for a smaller organization to establish that a function is a clearly defined activity and is core to the organization, as well as to demonstrate that the manager is performing at a senior level, in a small organization the function manager may establish seniority with respect to the function managed rather than within the organizational hierarchy, as clarified in the test established in Matter of G- Inc.

While the USCIS Policy memorandum binds all USCIS employees, it is not binding on decisions at U.S. Consular posts abroad. The challenge remains for interpretation of the scope of “functional manager” in L visa applications under Blanket L filed abroad at U.S. Consular posts.  As per the Foreign Affairs Manual (FAM) that governs the responsibilities of the various organizations of the U.S. Department of State, 9 FAM 402.12-14(B)(d) states, “An executive or manager may direct a function within an organization.  In general, however, individuals who control and directly perform a function within an organization, but do not have subordinate staff (except perhaps a personal staff), are more appropriately considered specialized knowledge employees.”

Despite USCIS’s policy memorandum based on the Matter of G- Inc., denials of “functional manager” cases under the L visa classification by USCIS and at certain U.S. Consular posts abroad continue.  In this regard, EB-1 MM cases involving function management continue to be misunderstood by USCIS, resulting in lengthy RFEs and in some cases leading to denials.

USCIS Proposes Increase to Premium Processing Fee

Posted in Department of Homeland Security, Global Immigration, H-1B, H-1B Cap, H-1B Premium Processing, Immigration Law, L-1, Premium Processing, USCIS, Visas

On Aug. 31, 2018, the Department of Homeland Security (DHS) proposed a final rule in the Federal Register to increase the premium processing fee for certain visa petitions to $1,410, effective Oct. 1, 2018. Premium processing, a service offered for certain petitions, requires U.S. Citizenship and Immigration Services (USCIS) to adjudicate a petition (i.e., approve, deny, or send a request for evidence) within 15 calendar days. The increase to the current fee, which is $1,225, is based upon the percentage change in the Consumer Price Index-Urban Consumers index (14.92%) since the premium processing fee of $1,225 was introduced.

DHS rationale for increasing the fee is to garner additional funds to provide certain premium-processing services to business customers and to make infrastructure improvements in adjudications and customer service processes. DHS estimates the department will receive an additional $44 million in revenue due to the increased fee. Recently, USCIS established a habit of suspending premium processing for certain petitions as it continually tries to reduce its backlog of petitions.

On or after Oct. 1, 2018, all premium processing requests must include the new fee. At this time, because of the previously discussed suspension of premium processing, most H-1B petitions are not eligible for premium processing. Only cap-exempt H-1B petitions that are filed exclusively at the California Service Center because the employer is cap-exempt or because the beneficiary will be employed at a qualifying cap exempt institution, entity, or organization; or those petitions filed exclusively at the Nebraska Service Center by an employer requesting a “Continuation of previously approved employment without change with the same employer” with a concurrent request to notify a consular office abroad or extend the stay of a beneficiary are currently eligible for premium processing. Premium processing remains available for other petitions, such as L-1 or I-140 petitions.

USCIS Extends and Expands Suspension of Premium Processing for H-1B Petitions

Posted in H-1B, USCIS

USCIS is extending the temporary suspension of premium processing for cap-subject H-1B petitions and, beginning Sept. 11, 2018, will be expanding this temporary suspension to include certain additional H-1B petitions. The suspensions are expected to last until Feb. 19, 2019.  While H-1B premium processing is suspended, USCIS will reject any request for premium processing filed with Form I-129, Petition for a Nonimmigrant Worker. If a petitioner submits one combined check for the Form I-907 and Form I‑129 H-1B fees, both forms will be rejected.

While the expanded temporary suspension applies to all H-1B petitions filed at the Vermont and California Service Centers (excluding cap-exempt filing from qualified cap-exempt institutions), it does not apply to those petitions filed exclusively at the Nebraska Service Center by an employer requesting a “Continuation of previously approved employment without change with the same employer.”

While premium processing is suspended, petitioners may submit a request to expedite an H-1B petition if they meet the criteria on the Expedite Criteria webpage.

This temporary suspension of premium processing does not apply to any other nonimmigrant classifications filed on Form I-129.

DHS Details Extension of Temporary Protected Status for Somalia Beneficiaries

Posted in Department of Homeland Security, Global Immigration, President Trump's Administration, Refugee, Temporary Protected Status, TPS, U.S. Citizenship and Naturalization Services, USCIS

Following the July 20 announcement of the granting of Temporary Protected Status (TPS) for Somalian beneficiaries, the Department of Homeland Security published a notice on Aug. 27 with instructions for the 18-month Somalian TPS extension from Sept. 18, 2018 through March 17, 2020. The 60-day re-registration period runs from Aug. 27, 2018 through Oct. 26. 2018.

For additional information, please see here and continue to check this site.  

USCIS Announces Yemen TPS Re-registration Process

Posted in Temporary Protected Status, TPS, USCIS, Yemen

The USCIS announced a re-registration period of Aug. 14, 2018, and Oct. 15, 2018, for current Yemen beneficiaries under Temporary Protected Status (TPS) in the United States.  This action follows the July 5th announcement extending current Yemen TPS  beneficiaries until March 3, 2020.

DHS Releases Fiscal Year 2017 Entry/Exit Overstay Report

Posted in Canada, Department of Homeland Security, Mexico, Visa Waiver Program, Visas

On Aug. 7, the Department of Homeland Security (DHS) released the Fiscal Year 2017 Entry/Exit Overstay Report (or Overstay Report). Visa Overstay Reports have been requested by Congress in recent fiscal years as a means to encourage development of a barometric Port of Entry visa checking system and to report on overstays that were identified as problematic in connection with the Sept. 11, 2001, attacks in the United States.

The 2017 Overstay Report calculated a total overstay rate of 1.33 percent, or 701,900 overstay events, versus an overstay rate of 1.25 percent (739,000 overstays) in FY 2016.

More FY 2017 Visa Overstay metrics from the release:

Visa Waiver Program (VWP) Country Overstay Rate This report separates Visa Waiver Program (VWP) country overstay figures from non–VWP country figures. For VWP countries, the FY 2017 Suspected In-Country Overstay rate was 0.51 percent of the 22,472,710 expected departures.

Non-Visa Waiver Program Participant Overstay Rate  For non-VWP countries, the FY 2017 Suspected In-Country Overstay rate is 1.91 percent of the 14,659,249 expected departures.

Student or Exchange Visitor Visa Overstay Rate For nonimmigrants who entered on a student or exchange visitor visa (F, M, or J visa), DHS has determined there were 1,662,369 students and exchange visitors scheduled to complete their program in the United States. However, 4.15 percent stayed beyond the authorized window for departure at the end of their program.

Canada and Mexico Overstay Rates  Unlike other countries, a majority of travelers from Canada and Mexico enter the United States by land. Figures pertaining to Canada and Mexico are presented separately from the other countries due to the fact that air and sea information represent a much smaller portion of the Canadian and Mexican travel population. For Canada, the FY 2017 Suspected In¬-Country Overstay rate for those traveling through air and sea POEs is 1.01 percent of 9,215,158 expected departures. For Mexico, the FY 2017 Suspected In-Country Overstay rate for those traveling through air and sea POEs is 1.63 percent of 2,916,430 expected departures. This represents only travel through air and sea POEs and does not include data on land border crossings. DHS is currently working to improve its monitoring capability for land POEs.

The Overstay Report continues to be an important accountability metric for Congress and has been used as the basis for oversight and new approaches to interior immigration enforcement such as H.R. 6089, the E-bonding for Immigration Integrity Act of 2018

Past Overstay Reports –

DHS Releases Fiscal Year 2016 Entry/Exit Overstay Report

Entry/Exit Overstay Report: Fiscal Year 2015 – Homeland Security

For more information on visa waiver programs click here.

September 2018 Visa Bulletin Updates

Posted in EB-1, EB-2, EB-3, USCIS, Visa Bulletin, Visas

The Department of State (DOS) recently released the September 2018 Visa Bulletin. The charts below show movement in employment-based categories. Referring to the Final Action Dates, following are updates from the September Visa Bulletin:

EB-1: Mainland China and India had no movement, with a cutoff date of Jan. 1, 2012, while El Salvador/Guatemala/Honduras, Mexico, Philippines, and Vietnam all moved forward a month, from May 1, 2016, to June 1, 2016.

EB-2: The cutoff date for worldwide chargeability, mainland China, El Salvador/Guatemala/Honduras, Mexico, Philippines, and Vietnam retrogressed to Jan. 1, 2013, and India retrogressed to Jan. 1, 2007. Retrogression for the EB-2 category goes into effect immediately and will remain through Sept. 30.

EB-3:  In the EB-3 category, the cutoff date for worldwide chargeability, El Salvador/Guatemala/Honduras, Mexico, Philippines, and Vietnam retrogressed to Nov. 1, 2016.  China moved forward four months to Nov. 1, 2014. India had significant change, retrogressing six years to Jan. 1, 2003. All EB-3 retrogressions go into effect immediately and will remain through Sept. 30.

For those in the EB-5 category, the priority date remains current for all applicants other than those born in mainland China and Vietnam, where the cutoff advanced from Aug. 1, 2014 to Aug. 8, 2014.

For those seeking to adjust status, The United States Citizenship and Immigration Service (USCIS) website indicates that the department’s Application Final Action Dates chart must be used for filing Form I-485. This has not yet been updated with the September 2018 dates; however, we anticipate that USCIS will continue to follow Application Final Action Dates for September, as it has to date.

Referring to the Final Action Dates, the following are the updates for the June Visa Bulletin:

Final Action Dates for Employment-Based Preference Cases

Dates for Filing Employment-Based Visa Applications

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