Issue 133 October 2019

State Department Proceeding with Implementing its Own Version of Public Charge Rule

In October, four courts issued injunctions barring the Trump Administration from implementing the controversial public charge rule that would dramatically change the way immigration law operates in the United States. Two of the courts issued nationwide injunctions. One barred USCIS from using forms released at the last minute and another issued an injunction limited to just the West Coast states. USCIS quickly took down the new forms from its web site.

On October 11, the State Department also made the surprising move of releasing an interim public charge final rule set to take effect just a week after publication. Although the effective date of the interim final rule is October 15, 2019, DOS has announced that it will not implement the new rule until the use of a new form for information collection is approved by the Office of Management and Budget.  Additionally, on October 24, 2019, DOS published a 60-day Notice of Proposed Information Collection for its Public Charge Questionnaire, which is a necessary step to have the new information collection approved.  DOS has stated that it will inform visa applicants of any changes to current visa application procedures.

The delay, for now, in implementation of the public charge rule at U.S. consulates abroad is welcome news. The public charge rule is vastly more restrictive than current policy and could result in significantly higher rates of denial of adjustment of status and immigrant visa applications, drastically reducing legal immigration if implemented.  As Vox reports, however, the proposed rule has already had a chilling effect.  Noncitizens, weary of the immigration consequences, have already been dropping public benefits in large numbers. 

Chin & Curtis will continue to monitor updates in this area.

Details: https://www.vox.com/policy-and-politics/2019/10/11/20899253/trump-public-charge-immigrants-welfare-benefits-court; DOS Announcement: https://travel.state.gov/content/travel/en/traveladvisories/ea/Information-on-Public-Charge.html

USCIS Denying H-1B Petitions at Historically High Rates

According to a new analysis by the National Foundation for American Policy based on data from the USCIS H-1B Employer Data Hub, between FY 2015 and FY 2019, the denial rate for new H-1B petitions for initial employment quadrupled, from 6% to 24%.  From FY 2010 to FY 2015, the denial rate for new H-1B petitions was never higher than 8%.  There has been a similar increase in the denial rate for H-1B petitions for continuing employment, which was never higher than 3% from FY 2011 through FY 2015, but was 12% for both FY 2018 and through the third quarter of FY 2019. 

Similarly, USCIS issued a Request for Evidence (RFE) in 60% of completed cases in the first quarter of FY 2019, compared to an RFE rate of approximately 20% historically.

The top reasons USCIS cites for RFEs and denials are that the petitioner did not establish the position as a specialty occupation; the petitioner did not establish a valid employer-employee relationship with the beneficiary; and the petitioner did not establish specific and non-speculative qualifying work assignments in a specialty occupation for the entire time requested in the petition. 

Even as H-1B approval rates have plummeted nationwide, however, Chin & Curtis consistently exceeds these national approval rates.  Since national denial rates began to increase in the second half of 2017, Chin & Curtis has maintained an approval rate of more than 98%. 

Details: NFAP Report: https://www.forbes.com/sites/stuartanderson/2019/08/08/latest-uscis-data-show-increase-in-denials-for-new-h-1b-visas/#7b54929b7cc4; USCIS Data Hub: https://www.uscis.gov/h-1b-data-hub

Visa Bulletin for November Shows Small Advancement for Most Countries

According to the Department of State’s November Visa Bulletin, EB-1 worldwide cutoff dates for issuance of an immigrant visa will advance slightly, while China will advance by three months.  There is no EB-1 advancement for India.  EB-2 and EB-3 worldwide will remain current, while there is modest advancement for China in the EB-2 category and a one-day advancement for India in the EB-2 category. 

USCIS again announced the use of the Dates for Filing chart in November, and the November bulletin shows no movement for dates for filing employment-based visa applications.

Chin & Curtis looks forward to presenting a more in-depth look at immigrant visa allocation in light of several measures that have been introduced in Congress over the past few months to attempt to address some of the backlogs in a forthcoming blog post.

DOS Releases Instructions for the 2021 Diversity Immigrant Visa Program

The Department of State (DOS) has announced the opening of the 2021 Diversity Immigrant Visa Program, which opened on October 2, 2019 and will close on November 5, 2019.  DOS annually allocates visas for a class of immigrants known as “diversity immigrants” from countries with historically low rates of immigration to the United States. For Fiscal Year 2021, there will be 55,000 Diversity Visas (DVs) available without a fee.

Only individuals from certain countries may qualify. The full list of eligible countries can be found beginning on page 16 of the DOS announcement.

If not born in an eligible country, there are two other possible ways to qualify.

1.      If your spouse was born in an eligible country.

2.      If you were born in an ineligible country in which neither of your parents was born or legally resident at the time of your birth, you may claim the country of birth of one of your parents if it is a country whose natives are eligible for the DV program.

 

Diversity Visa applicants must also adhere to the education work requirement of the program by having either:

1.      A minimum of a high-school or its equivalent, defined as successful completion of a 12-year course of formal elementary and secondary education;

OR

2.     A minimum of two years of work experience within the past five years in an occupation which requires at least two years of training or experience to perform.

Although there has been push to eliminate the DV lottery for years, including President Trump’s repeated calls for a more “merit-based” immigration system, Congress has not moved to end the program. By offering individuals from countries with low immigration to the US, particularly from Africa and Eastern Europe, the chance to immigrate, the Diversity Immigrant Visa Program makes America more diverse and benefits the American economy.

Details: Department of State announcement http://www.visalaw.com/wp-content/uploads/19092730.pdf.

USCIS Announces Increase in Premium Processing Fee

USCIS has announced that beginning on November 29, 2019, it is adjusting the fee to request premium processing for certain employment-based petitions to $1,440 from the current fee of $1,410.  Premium processing is a service currently authorized for certain petitioners filing Forms I-129 or I-140.  USCIS stated that the increased fee reflects the full amount of inflation from the implementation of the premium processing fee in June 2001 through August 2019.  USCIS last increased the fee just last year. 

Details: USCIS announcement: https://www.uscis.gov/news/news-releases/uscis-adjusting-premium-processing-fee-0

Immigrants Lead the Way for America in the Awarding of Nobel Prizes

Four immigrants to the United States have been named Nobel laureates for 2019. They include French-born Esther Duflo and Indian-born Abhijit Banerjee in the field of economics. British immigrant M. Stanley Whittingham won for chemistry and Canadian-born James Peebles won for physics.

According to Stuart Andersen at the National Foundation for American Policy, nearly 40% of Nobel Prizes awarded to Americans in Chemistry, Physics and Medicine since 2000 have been awarded to immigrants.

Details: https://www.forbes.com/sites/stuartanderson/2019/10/14/immigrant-nobel-prize-winners-keep-leading-the-way-for-america/#228b59744d4b