Immigration News: USCIS Selects More H-1B Registrations for Submission

On August 14, 2020, USCIS started selecting more H-1B registrations (from the March 2020 registration period) for the “August 2020 Selection of Reserve Registration.” This means that the annual H-1B visa statutory cap of 65,000 H-1B visas has not yet been met. H-1B registrants should check their USCIS online account to see if their H-1B registration from March of this year was recently selected. If a registrant was selected on August 14, 2020, the indicated filing period is from August 17, 2020 to October 16, 2020. Selected registrants must be sure to follow all the instructions listed in the selection notice, including filing the necessary Labor Condition Application (LCA) as soon as possible before October 1, 2020. All interested parties, especially H-1B employers who must pay the relevant filing fees, should remember that the new USCIS fee changes go into effect on October 2, 2020.

If you have questions about the H-1B registration, selection, and submission process, contact us today.

Immigration News: Presidential Proclamation 10052 – National Interest Exceptions Update

Major updates in immigration this January 2020

On August 12, 2020, the U.S. Department of State quietly updated their website to inform the public of further updates to exceptions under P.P. 10052 for certain travel in the national interest by nonimmigrants.

While a complete list of P.P. 10052 exceptions for H, L, and J can be found on the U.S. Department of State – Bureau of Consular Affair’s website (www.travel.state.gov), listed below are some notable exceptions for H-1B and L-1A applicants:

Exceptions for H-1B applicants:

  • Public health or healthcare professionals, or researchers to alleviate the effects of the COVID-19 pandemic, or to conduct ongoing medical research in an area with a substantial health benefit. This includes research in areas that may have been adversely impacted by the COVID-19 pandemic .
  • Travel by applicants seeking to resume ongoing employment in the United States in the same position with the same employer and visa classification.
  • Travel is supported by a request from a U.S. government agency to meet critical U.S. foreign policy objectives or to satisfy treaty or contractual obligations.
  • Travel by technical specialists, senior level managers, and other works whose travel is necessary to facilitate the immediate and continued economic recovery of the United States.

Exceptions for L-1A applicants:

  • Public health or healthcare professionals, or researchers to alleviate the effects of the COVID-19 pandemic, or to conduct ongoing medical research in an area with a substantial health benefit. This includes research in areas that may have been adversely impacted by the COVID-19 pandemic.
  • Travel by applicants seeking to resume ongoing employment int eh United States in the same position with the same employer and visa classification.
  • Travel by a senior level executive manager filling a critical business need of an employer meeting a critical infrastructure need. Critical infrastructure sectors include chemical, communications, dams, defense industrial based, emergency services, energy, financial services, food and agriculture, government facilities, healthcare and public health, information technology, nuclear reactors, transportation, and water systems. An L-1A applicant falls into this category when at least 2 of the following 3 indicators are present and the L-1A applicant is not seeking to establish a new office in the United States.
    • Will be a senior-level executive or manager;
    • Has spent multiple years with the company overseas, indicating a substantial knowledge and expertise within the organization that can only be replicated by a new employee within the company following extensive training that would cause the employer financial hardship; or
    • Will fill a critical business need for a company meeting a critical infrastructure need.
  • L-1A applicants seeking to establish a new office in the United States may fall into this category if two of the three criteria are met and the new office will employ, directly or indirectly, five or more U.S. workers.

Note that a determination of whether an applicant qualifies for a national interest exception will be made at the time of the visa interview.

Contact us if you have questions about this or any other U.S. immigration news.

Immigration News: Update on Public Charge Injunction

On Wednesday, August 12, 2020, the Second Circuit Court of Appeals limited the nationwide injunction out of New York that blocked the Trump administration’s public charge rule. Previously on July 29, 2020, the New York federal court had temporarily stopped the implementation of the public charge rule that penalizes immigrant applicants for using public benefit programs like Medicaid and Food Stamps. In its ruling, the Second Circuit determined that the injunction would only remain in effect in New York, Connecticut, and Vermont.

Breaking Immigration News: President’s Executive Order on Federal Government’s Use of H-1B Workers

On August 3, 2020, President Trump issued an Executive Order requiring federal agencies to review their use of foreign labor, specifically the use of H-1B visa workers. The Executive Order calls on the head of each executive agency that enters into contracts to review whether contractors—including subcontractors—used temporary foreign labor for contracts performed in the United States and in foreign countries.

The order then calls on federal agencies to submit a report to the Director of the Office of Management and Budget summarizing the results of the reviews within 120 days of the date of the order. The order also requires the Secretaries of Labor and Homeland Security to take action to protect U.S. workers from any adverse effects on wages and working conditions caused by the employment of H-1B visa holders at job sites (including third-party job sites) within 45 days of the date of the order.

DACA Immigration News: U.S. Department of Homeland Security Will Reject New DACA Applications While Reconsidering End of DACA Program

On July 28, 2020, the U.S. Department of Homeland Security (“DHS”) announced that, in response to the U.S. Supreme Court’s decision on DACA, DHS is considering to fully rescind the DACA program. On June 18, 2020, the Supreme Court ruled that the decision to terminate DACA without sufficient justification was arbitrary and capricious, and that the new DACA applications should be given consideration. DHS’ memorandum specifically indicated that it will make the following changes to DACA immediately, while reconsidering to end the program:

  • Reject all initial requests for DACA and associated applications for Employment Authorization Documents;
  • Reject new and pending requests for advanced parole absent exceptional circumstances; and
  • Limit the period of renewed deferred action granted pursuant to the DACA policy after the issuance of this memorandum to one year.

Acting Secretary Chad F. Wolf listed the following 4 areas of concern as “important policy reasons” to end DACA in its entirety:

  • Concern about whether, as a matter of policy, continuation of a broad, class-based deferred-action policy like DACA should be resolved by Congress;
  • Concern about whether any discretion to not enforce the law or afford deferred action should be exercised rarely and only on a truly individualized, case-by-case basis;
  • Concern that the existence of a program like DACA may send mixed messages about DHS’s intention to consistently enforce immigration laws as Congress has written them; and,
  • Concern that the existence of a program like DACA may encourage individuals to take a perilous journey to this country, needlessly endangering children.

In sum, while existing DACA recipients can continue to submit renewal applications and renewal of their work authorization, renewals will now be extended in increments of only one year, not two years. We anticipate that the DACA renewal applications, which will be reviewed and renewed on a case by case basis, will likely be subject to higher scrutiny. Unfortunately, for those who submit new DACA applications and DACA recipients who submit their advance parole applications will now see rejection and filing fees returned, unless they are in exceptional circumstances. Here, DHS has not yet specified or provided any guidance on what is considered to be “exceptional circumstances.” Based on our firm’s past experiences, we anticipate that serious illness or death of a member of the alien’s immediate family member may be considered as one of the exceptional circumstances. While DHS is reconsidering to completely end the DACA program, we also anticipate that the new DACA policy will likely be challenged in federal court.

Contact our office for more information about DACA or to schedule a consult with a licensed immigration attorney.

Federal District Court Blocks Public Charge Rule and USCIS Issues Subsequent Guidance

On July 29, 2020, the U.S. District Court for the Southern District of New York issued a nationwide preliminary injunction temporarily blocking the Department of Homeland Security’s Public Charge Rule due to the COVID-19 national health emergency. 

The Department of Homeland Security’s 2019 Public Charge Rule, which was implemented on February 24, 2020, required foreign nationals to demonstrate that they would not become a public charge of the U.S. government.

In response to the preliminary injunction, USCIS clarified on July 31, 2020, that it would no longer require foreign nationals seeking permanent residency to file Form I-944, Declaration of Self-Sufficiency, together with Form I-485, Application to Adjust Status, for applications postmarked July 29, 2020, or later. Additionally, USCIS will not require foreign nationals seeking a change or extension of nonimmigrant status to provide information related to the Public Charge Rule on Form I-129 or Form I-539.

More information can be found at: https://www.uscis.gov/green-card/green-card-processes-and-procedures/public-charge/injunction-of-the-inadmissibility-on-public-charge-grounds-final-rule. USCIS guidance will remain in effect while the preliminary injunction remains in place, and the immigration attorneys at David Hirson & Partners, LLP are monitoring this situation as it develops.

Immigration News: USCIS Changes Fees to Many Immigration Filings

On July 31, 2020, the United States Citizenship and Immigration Services (USCIS) announced a final rule that changes the filing fees for many of the most commonly used application and petition forms used to obtain immigration benefits.  The final rule, which is scheduled to go into effect on October 2, 2020, is part of the agency’s attempt to address an anticipated budget shortfall caused by a dramatic lack in applications from the previous year.

While the changes affect the fees for dozens of applications and petitions, perhaps the most significant change is the more than 80% increase on naturalization applications from $640 to $1170. Other significant changes include the imposition of a $50 fee for asylum applications, which is one of the first of its kind in the world; a 34% increase in the fee for employment authorization; and an increase in the fee for the Annual Certification of EB-5 Regional Centers (Form I-924A) from $3,035 to $4,465.  

Another major non-fee related policy change is an extension in the time allotted for USCIS to respond to cases filed with Premium Processing from 15 calendar days to 15 business days, which could add an extra week for employers and individuals to receive responses on cases. 

Although there is growing anticipation that groups will file suit to enjoin many or all of these changes, until an injunction is granted, preparations should be made for these new fees to be paid on and after October 2, 2020.

If you need more information about this important immigration news, feel free to contact us today.

Immigration News: USCIS Postpones Employee Furloughs Until at Least August

On July 24, 2019, Senate Appropriations Committee Vice Chairman, Senator Patrick Leahy, announced the postponement of furloughs for an estimated 13,000 U.S. Citizenship and Immigration Services (USCIS) workers until September 1, 2020. Earlier this month, USCIS announced the possibility of furloughs beginning August 3 because of a lack of funding for continued operations. The announcement comes as congressional leaders provided a more accurate accounting of the agency’s resources which demonstrated sufficient funding through the current fiscal year (September 30, 2020). Of the announcement, Senator Leahy stated, “Furloughing thousands of public servants in the middle of a pandemic and at record unemployment would have upended the lives of the dedicated women and men working at USCIS and impacted thousands who rely on their services, and after new revenue estimates showed the agency ending the fiscal year with a surplus it was completely unjustifiable. I’m glad the agency decided to change course for now, but I remain troubled the Trump Administration was pushing for these furloughs in the first place. As Vice Chairman of the Senate Appropriations Committee, I am working to ensure these dedicated women and men stay on the job to help those chasing the American Dream. With regard to the projected USCIS deficit for fiscal year 2021, I am committed to addressing this issue in the next coronavirus supplemental so that USCIS can continue accomplishing its missions without a furlough.”

While this announcement provides a heightened level of assurance with regard to USCIS’ ability to continue normal operations in the short-term, the agency’s long-term ability to sustain itself will likely be a topic of discussion as the House Judiciary Subcommittee on Immigration and Citizenship conducts a USCIS oversight hearing on Wednesday, July 29, at 10:00 am (ET).

Contact us today for more information on how USCIS processes your immigration applications.

F-1 Student Visa Update: Online Studies

On July 6, 2020, U.S. Immigration and Customs Enforcement (“ICE”) announced a policy banning F-1 students from exclusively taking online classes in response to COVID-19. This policy was completely retracted on July 14, 2020 following litigation filed by Harvard University and Massachusetts Institute of Technology (“MIT”) in federal district court.

On July 24, 2020, ICE issued a formal update on federal guidance for the Fall 2020 semester. Students in valid F-1 or M-1 status who were actively enrolled in school on March 9, 2020 and seeking to continue their studies would be allowed to take exclusively online classes due to COVID-19. However, those students seeking new visas or looking to begin their studies in the U.S. will not be approved if their intended university is only offering online instruction.

Contact the experienced immigration team at David Hirson & Partners, LLP for answers to all your U.S. immigration questions.

[DHP Client Alert] USCIS Issues New Guidance Clarifying Acceptable Redeployment of EB-5 Funds

On July 24, 2020, USCIS issued a new policy memo clarifying its guidance on acceptable deployment and redeployment of EB-5 capital. This new guidance is effective immediately and affects all pending I-526 and I-829 petitions. Below we discuss USCIS new restrictive redeployment policies and how they impact the industry.

USCIS’ New Restrictive Redeployment Requirements

Previously, in its initial redeployment policy memo issued on June 14, 2017, USCIS offered vague guidance that any redeployment of EB-5 capital would generally be acceptable only if (1) the business plan was substantially completed, (2) the funds were reinvested into activities consistent with the NCE’s purpose, and (3) the funds were redeployed within a “commercially reasonable period of time.”

Now, USCIS’ new policy memo clarifies that any redeployment of EB-5 capital must be tied to the purpose and scope of its accompanying NCE and Regional Center. This effectively greatly limits the range of acceptable redeployment activities and clarifies several issues, including:

  • Role of the NCE and RC: USCIS confirms that any redeployment of EB-5 capital must be consistent with the original purpose of the NCE and within the geographic umbrella of the Regional Center. This effectively greatly limits both the range and scope of acceptable redeployment activities since its inextricably tied to the NCE and RC. Moreover, both the NCE and RC must continue operating and remain in good standing during this entire period. The dissolution or termination of either the NCE/RC would also cause the denial of the underlying I-526/I-829 petitions. 
  • Redeployment must be through NCE: Any redeployment of EB-5 capital must be through the same NCE. Note that USCIS does not clarify if this applies only if the EB-5 funds are actually repaid to the NCE (versus being repaid to a SPE/SPV that was created to disburse or lend the EB-5 funds to the JCE). 
  • Cannot Redeploy into “Financial Instruments”: EB-5 capital cannot be deployed into financial instruments, including municipal bonds or securities. USCIS’ logic is that these activities are primarily financial in nature and not consistent with the requirement that NCEs must be engaged in “commercial or business activity.”
  • Commercially Reasonable Period of Time: Confirms that 12 months would generally be considered a commercially reasonable period of time for redeployment of EB-5 capital. USCIS would also be open to accepting a longer period of time depending on the specific facts or circumstances of a case.

What our Clients Need to Know

Since USCIS’ initial memo on redeployment, EB-5 stakeholders have repeatedly requested USCIS provide further guidance clarifying acceptable activities, scope, and timing of investments. While the new memo provides much greater clarity, it also ushers in a new set of restrictive requirements overnight that will leave many EB-5 stakeholders scrambling to assess the eligibility of their current plans as well as any accompanying risks and exposure.  All Regional Centers, issuers, and EB-5 stakeholders should immediately review their current redeployment plans with EB-5 counsel to ensure that they are still in compliance. This is especially critical because the policy memo is effective immediately and extends to all pending EB-5 petitions.

Given that redeployment must now be tied to both the NCE and Regional Center, it is advisable to review the NCE’s limited partnership/operating agreement and offering documents to ensure your redeployment plans align with the NCE’s purpose. Both EB-5 securities counsel will be necessary to navigate through the maze of corporate, securities, and immigration issues. A preliminary assessment may be needed to analyze whether any actions need to be taken to revise your redeployment plans, including amending the NCE’s organizational documents, PPM, or filing an I-924 to expand your Regional Center’s geographic region. For example, clients who are immediately at-risk include those who have structured portfolios to invest EB-5 capital and those who have redeployed into municipal bonds must now consider the ramifications on their investor’s pending petitions. Finally, any remedial measures must be approached with caution since the specter of material change looms over any changes to the NCE’s organizational documents, and should only be done after careful consultation with EB-5 counsel.

Our firm has structured and advised on numerous EB-5 redeployment plans and will be working closely with our clients to review and advise them on their current redeployment plans. We will continue to monitor this issue and provide updates as we analyze the impact on the industry. Contact us today to discuss your EB-5 questions with our team of EB-5 experts.