19 December 2019
Category News Room
19 December 2019,
 0

RELIEF Act Introduced in the House

On December 5, Rep. Donna Shalala introduced the Resolving Extended Limbo for Immigrant Employees and Families (RELIEF) Act (H.R. 5327) in the U.S. House of Representatives. The bill is cosponsored by Rep. Debbie Wasserman Schultz. The RELIEF Act is the House companion to S. 2603 which was introduced by Sens. Dick Durbin, Patrick Leahy, and Mazie Hirono earlier this year. S.2603 presently has six cosponsors. Unlike the Fairness Act (H.R. 1044 and S. 386), which we have discussed extensively in the past, the RELIEF Act provides a fair and equitable solution to ending the green card backlog by making additional immigrant visas available to individuals on an annual basis.

Despite the RELIEF Act’s introduction in the House, the Fairness Act’s momentum ought not be ignored. The Fairness Act has experienced strong forward movement in Congress. It passed the House of Representatives with significant bipartisan support (365 to 65). In addition, the Fairness Act’s Senate companion bill (S. 386) currently has 35 cosponsors. Already, there have been numerous attempts to pass the Fairness Act through unanimous consent in the Senate. Though, each time the bill has come up for unanimous consent, a Senator has objected to the bill. It’s very possible for Senators to work out a compromise in order for the bill to pass through unanimous consent. If passed by Congress, and signed into law by the President, the Fairness Act would result in a wait of at least 7+ years, the estimated time to clear the existing backlog, before individuals would be able to receive a green card on a first come first serve basis.

We will continue to provide updates regarding developments surrounding the legislative efforts to address the immigrant visa backlog.

 

Fourth and Ninth Circuit Lifts Public Charge Injunctions While Second Circuit’s Injunction Still in Effect with an Appeal Pending

On December 5 and December 9, the U.S. Court of Appeals for the Ninth Circuit and the U.S. Court of Appeals for the Fourth Circuit, respectively, granted DHS’s motion to stay for preliminary injunctions preventing the DHS from enforcing its new public charge rule. The new rule would expand the definition of who is considered a public charge. Under the rule, immigrants who are not citizens or lawful permanent residents and who receive or are likely to receive certain public benefits would be ineligible to change their status or extend their stay.

Nonetheless, DHS remains bound by a nationwide injunction issued by a federal district court in New York and an injunction, limited to the state of Illinois, issued by a federal district court in Illinois. The litigation continues before the U.S. Court of Appeals for the Second Circuit, which has jurisdiction over New York, and Seventh Circuit, which has jurisdiction over Illinois. However, Second Circuit has fast-tracked the appeals of the preliminary injunction with various appellate filings due over the next three months.

If the Second Circuit joins its sister courts in staying the nationwide preliminary injunction, USCIS would likely be able to begin implementing its public charge rule. Already, the agency has developed new forms for various immigration processes.

We will continue to track the progress of the litigation and provide timely updates.

 

Preliminary Injunction Issued Against Administration’s Health Insurance Mandate

On November 26, a federal court in Oregon issued a nationwide preliminary injunction preventing the Trump administration from implementing a presidential proclamation that would require immigrant visa applicants abroad to show that they will be covered by certain health insurance within 30 days after entering the country or have the financial resources to pay out-of-pocket for “reasonably foreseeable medical expenses.” In its opinion, the Court noted that “the Proclamation was not issued under any properly delegated authority.” The injunction will remain in effect while the lawsuit challenging the constitutionality of the Proclamation progresses through the courts.

 

Active Rulemakings expected with Release of Fall 2019 Regulatory Agenda

Twice a year in the spring and fall, each federal agency publishes a regulatory agenda describing regulatory actions that are being developed. The DHS Fall Regulatory Agenda suggests that USCIS is planning to further change and restrict immigration regulations. Some of the changes, which the agency intends to propose, include:

  •  “Strengthening the H-1B Nonimmigrant Visa classification Program”
    • DHS will propose to revise the definition of specialty occupation and employer-employee relationship and will propose additional requirements to ensure employers pay appropriate wages to H-1Bs.
  •  “Removing H-4 Dependent Spouses from the Classes of Aliens Eligible for Employment Authorization”
    • DHS continues its efforts to rescind the policy that allowed H-4 dependent spouses of H-1B nonimmigrant workers to obtain work authorization. The rule is currently under review at the Office of Management and Budget (“OMB”). The agency expects that the OMB will complete its review and the rule will be ready for final publication in Spring 2020. As such, we are advising eligible H-4 dependents to be entered into the H-1B lottery for FY2021.
  • “Updating Adjustment of Status Procedures for More Efficient Processing and Immigrant Visa Usage”
    • DHS will propose to eliminate the concurrent filing of visa petitions and Form I-485 for all applicants seeking an immigrant visa in a preference category and will propose to make additional changes to the appropriate dates when applicants can file Form I-485 and for ancillary benefits.
  • “Strengthening the L-1 Nonimmigrant Classification”
    • DHS will propose to revise the definition of specialized knowledge and employment and employer-employee relationship. Additionally, the regulation will ensure employers pay appropriate wages to L-1 visa holders despite the fact that there are no statutory wage requirements for Ls.
  • “Enhancing the Integrity of the Unlawful Presence Inadmissibility Provisions”
    • DHS will propose regulation describing how unlawful presence accrues for purposes of the three- and ten-year bars to admissibility. The agency will clarify regarding whether failing to abide by the conditions of admission as a nonimmigrant can result in accrual of unlawful presence. This change will likely be especially impactful for F, M, or J individuals due to the strict requirements in order to maintain status for their programs.

Once the regulations are finalized, and published to the public for comment, we will better be able to fully assess the impact and develop an effective and efficient response to the agency’s new changes and restrictions. The next Regulatory Agenda will be published in Spring 2020.

 

January 2020 Visa Bulletin

The January 2020 visa bulletin made limited progress in some categories while others remain unchanged, or retrogressed, compared to December 2019 in terms of dates for filing for employment-based visa applications. EB-1 Worldwide remains current. EB-1 China has advanced to October 01, 2017; EB-1 India remains at March 15, 2017, and EB-1 Philippines is current. EB-2 Worldwide remains current. EB-2 China remains at August 01, 2016 while India remains at July 01, 2009; EB-2 Philippines remains current. EB-3 Worldwide has retrogressed to January 01, 2019. EB-3 China remains at March 01, 2017. EB-3 India remains at February 01, 2010, and EB-3 Philippines has retrogressed to January 01, 2019. As a reminder, after each Visa Bulletin is published you should check with USCIS.gov to see which chart they are accepting for that specific month.

 

** This newsletter/memo is provided for informational and discussion purposes only. It does not act as a substitute for direct legal contact on an individual basis **

Comments are closed.