Summary of the April 22, 2020 Proclamation Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak

Summary of the April 22, 2020 Proclamation Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak

by  AILA and American Immigration Council

Authority: Immigration and Nationality Act sections 212(f) and 215(a) and 3 U.S.C. section 301

The proclamation becomes effective on Thursday, April 23, 2020 at 11:59 PM (ET), and suspends the entry of any individual seeking to enter the U.S. as an immigrant who:

● Is outside the United States on the effective date of the proclamation;

● Does not have a valid immigrant visa on the effective date; and

● Does not have a valid official travel document (such as a transportation letter, boarding foil, or advance parole document) on the effective date, or issued on any date thereafter that permits travel to the United States to seek entry or admission.

The following categories are exempted from the proclamation:

1. Lawful permanent residents (LPR)

 2. Individuals, and their spouses or children, seeking to enter the U.S. on an immigrant visa as a physician, nurse, or other healthcare professional; to perform medical research or other research intended to combat the spread of COVID-19; or to perform work essential to combating, recovering from, or otherwise alleviating the effects of the COVID-19 outbreak, (as determined by the Secretaries of State and Department of Homeland Security (DHS), or their respective designees)

 3. Individuals applying for a visa to enter the U.S. pursuant to the EB-5 immigrant visa program

 4. Spouses of U.S. citizens

 5. Children of U.S. citizens under the age of 21 and prospective adoptees seeking to enter on an IR-4 or IH-4 visa AILA Doc. No. 20042201. (Posted 4/23/20)

 6. Individuals who would further important U.S. law enforcement objectives (as

determined by the Secretaries of DHS and State based on the recommendation of the Attorney General (AG), or their respective designees)

 7. Members of the U.S. Armed Forces and their spouses and children

 8. Individuals and their spouses or children eligible for Special Immigrant Visas as an Afghan or Iraqi translator/interpreter or U.S. Government Employee (SI or SQ classification)

 9. Individuals whose entry would be in the national interest (as determined by the

Secretaries of State and DHS, or their respective designees).

Discretion. It is within the discretion of the consular officer to determine if an individual is within one of the exempted categories outlined above.

Nonimmigrant visa holders are not included in the proclamation. However, the proclamation requires that within 30 days of the effective date, the Secretaries of Labor and DHS, in consultation with the Secretary of State, shall review nonimmigrant programs and recommend to the President other appropriate measures to stimulate the U.S. economy and ensure “the prioritization, hiring and employment” of U.S. workers.

Asylum seekers are not included in the ban. The proclamation states that it does not limit the ability of individuals to apply for asylum, refugee status, withholding of removal or protection under the Convention Against Torture.

Prioritized Removal. Individuals who circumvent the application of this proclamation through fraud, willful misrepresentation or illegal entry will be prioritized for removal.

Expiration. The proclamation expires 60 days from its effective date and may be continued as necessary. Within 50 days from the effective date, the Secretary of DHS shall, in consultation with the Secretaries of State and Labor, recommend whether the President should continue or modify the proclamation.

Severability Clause. If any provision of the proclamation, or the application of any provision to any person or circumstance, is held to be invalid, the remainder of the proclamation shall not be affected.

USCIS Adjusts Process for Managing EB-5 Visa Petition Inventory

WASHINGTON— U.S. Citizenship and Immigration Services today announced a process change for Form I-526, Immigrant Petition by Alien Investor, from a first-in, first-out basis to a visa availability approach.

This new operational approach aligns with other visa-availability agency adjudications processes, is more consistent with congressional intent for the EB-5 Immigrant Investor Program, and increases fairness in the administration of the program.

“Changing our approach from a first-in, first-out adjudication process to one that prioritizes petitions connected to individuals from countries where visas are currently available better aligns the EB-5 program with congressional intent and makes it more consistent with other USCIS operations,” said USCIS Deputy Director Mark Koumans. “This new approach increases fairness, allowing qualified EB-5 petitioners from traditionally underrepresented countries to have their petitions approved in a more timely fashion to receive consideration for a visa.”

This operational change is consistent with the agency’s processing of Form I-130, Petition for Alien Relative, in cap-subject categories. The new visa availability approach simply gives priority to petitions where visas are immediately available, or soon available, and will not create legally binding rights or change substantive requirements. Applicants from countries where visas are immediately available will now be better able to use their annual per-country allocation of EB-5 visas. The new visa availability approach will apply to petitions pending as of the effective date of the change. USCIS will implement the visa availability approach on March 31, 2020.

USCIS will hold a public engagement on March 13, 2020, from 11:00 a.m. to noon Eastern, to provide information and answer questions from the public about these operational changes to the management of Form I-526 petition inventory.

USCIS Implements $10 Fee for H-1B Visa Registration

Release Date: Nov. 7, 2019

WASHINGTON—U.S. Citizenship and Immigration Services today announced a final rule that will require a $10 non-refundable fee for each H-1B registration submitted by petitioning employers, once it implements the electronic registration system. The registration fee is part of an agency-wide effort to modernize and more efficiently process applications to live or work in the United States.

The H-1B program allows companies in the United States to temporarily employ foreign workers in occupations that require the application of a body of highly specialized knowledge and a bachelor’s degree or higher in the specific specialty, or its equivalent.

Upon implementation of the electronic registration system, petitioners seeking to file H-1B cap-subject petitions, including those eligible for the advanced degree exemption, will first have to electronically register with USCIS during a designated registration period, unless the requirement is suspended.

“This effort will help implement a more efficient and effective H-1B cap selection process,” said USCIS Acting Director Ken Cuccinelli. “The electronic registration system is part of an agency-wide initiative to modernize our immigration system while deterring fraud, improving vetting procedures and strengthening program integrity.”

The final rule, Registration Fee Requirement for Petitioners Seeking to File H-1B Petitions on Behalf of Cap-Subject Aliens, is effective Dec. 9, 2019, and the fee will be required when registrations are submitted. USCIS is fee-funded, and this non-refundable fee will support the new electronic registration system to make the H-1B cap selection process more efficient for both petitioners and the agency.

USCIS is slated to implement the registration process for the fiscal year 2021 H-1B cap selection process, pending completed testing of the system. The agency will announce the implementation timeframe and initial registration period in the Federal Register once a formal decision has been made, and USCIS will offer ample notice to the public in advance of implementing the registration requirement.

USCIS published a notice of proposed rulemaking highlighting a registration fee on Sept. 4, 2019, which included a 30-day public comment period. USCIS received only 22 comments during that time, and has considered all submissions and offered public responses ahead of announcing the final rule, which is effective on Dec. 9.

Trump prepares to unveil broad immigration plan but shows no signs of tempering hard line rhetoric

…Trump on Wednesday (5/15/2019) warned again about the dangers of undocumented immigrants, signaling no plans to temper his rhetoric even as he prepares to unveil a broad proposal aimed at balancing public perception of his administration’s hard line agenda.

Trump is scheduled to use a Rose Garden speech on Thursday to throw his support behind a plan developed by his son-in-law, Jared Kushner, to move U.S. immigration toward a “merit-based system” that prioritizes high-skilled workers. Several Republican senators are expected to attend, officials said.

H-1B Cap Has Been Reached for Fiscal Year 2020

April 5, 2019

USCIS has received a sufficient number of petitions projected as needed to reach the congressionally-mandated 65,000 H-1B visa regular cap for fiscal year 2020. USCIS will next determine if we have received a sufficient number of petitions to meet the 20,000 H-1B visa U.S. advanced degree exemption, known as the master’s cap.

The agency will reject and return filing fees for all unselected cap-subject petitions that are not prohibited multiple filings.

USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed for current H-1B workers who have been counted previously against the cap, and who still retain their cap number, are exempt from the FY 2020 H-1B cap. USCIS will continue to accept and process petitions filed to:

• Extend the amount of time a current H-1B worker may remain in the United States;

• Change the terms of employment for current H-1B workers;

• Allow current H-1B workers to change employers; and

• Allow current H-1B workers to work concurrently in a second H-1B position.

U.S. businesses use the H-1B program to employ foreign workers in specialty occupations. We encourage H-1B applicants to subscribe to the H-1B Cap Season email updates located on the H-1B Fiscal Year (FY) 2020 Cap Season page.

DHS Proposes Merit-Based Rule H-1B Visa Program

DHS announced a notice of proposed rulemaking, to be published in the Federal Register 12/3/18, which would add a registration requirement for cap-subject H-1B petitions, as well as propose to reverse the order by which it selects H-1B petitions under the cap and the advanced degree exempted petitions.

USCIS Now Accepting Copies of Negative O Visa Consultations Directly from Labor Unions

Effective immediately, USCIS will begin accepting copies of negative consultation letters directly from labor unions relating to a current or future O nonimmigrant visa petition request. O-1 and O-2 nonimmigrant visas are available to individuals with extraordinary ability in science, education, business, athletics, or the arts, and individuals with extraordinary achievement in the motion picture or television industry, and certain essential support personnel. A consultation letter from a U.S. peer group, labor organization, and/or management organization is generally required for petitions in the O visa classification.

Typically, a petitioner submits the necessary O visa consultation with the petition, and that process requirement remains unchanged. Director L. Francis Cissna recently met with several labor unions to discuss concerns they had with the consultation process for O visa petitions, in particular that some advisory opinions may be falsified by petitioners and submitted to USCIS as no-objections or favorable consultations, when in fact these were negative. The labor unions will now be able to send a copy of a negative consultation letter to USCIS so that it can be compared to the consultation letter submitted to USCIS by the petitioner.

Labor unions should send copies of negative O nonimmigrant consultation letters to UnionConsultationMailbox@uscis.dhs.gov. To make sure USCIS matches the letters to the correct petitions, labor unions should include the last five digits of each beneficiary’s passport number in the consultation letters. Note that only copies of negative consultation letters should be sent to USCIS in the manner described above for O petitions.

After six months USCIS will analyze the data collected to identify areas for improvement in the consultation process. Additional information on O nonimmigrant visas is available on the O-1 Visa: Individuals with Extraordinary Ability or Achievement page.

USCIS Reaches FY 2019 H-1B Cap

Demonstrating a critical demand for educated foreign workers in the United States, the annual H-1B cap was reached on April 6, 2018.  This is the 6th year of H-1B cap being reached within the first week of filing acceptance.  

USCIS has reached the congressionally-mandated 65,000 H-1B visa cap for fiscal year 2019.

USCIS has also received a sufficient number of H-1B petitions to meet the 20,000 visa U.S. advanced degree exemption, known as the master’s cap.

The agency will reject and return filing fees for all unselected cap-subject petitions that are not prohibited multiple filings (PDF, 119 KB).

EB-5 Regional Center Program gets Extended (again) without Any Changes

SEC. 204. Section 610(b) of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1993 (8 U.S.C. 1153 note) shall be applied by substituting “September 30, 2018” for “September 30, 2015”

This language refers back to Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1993 (Public Law 102-395) Section 610 (PDF page 47), which established the regional center program. The 2018 Appropriations Act does not include the EB-5 Reform Act, or other EB-5 changes. It just extends the borrowed time until we get a good piece of EB-5 legislation.

H-1B VISA PROGRAM AND TRUMP: HOW HIGH-SKILLED IMMIGRANTS ARE BEING THREATENED BY PRESIDENT’S ADMINISTRATION

The Trump administration’s once-rumored restrictions to the H-1B visa program have begun to take effect.

They’re causing a shakeup particularly in the United States tech industry because the temporary, non-immigrant work document enables companies to hire highly skilled foreign workers in fields that require technical and theoretical expertise.