Amid heightening concerns about the spread of coronavirus, the Trump administration announced a temporary ban impacting certain travelers who visited China within the two-week period prior to their entry into the U.S.  The ban became effective on February 2nd at 5:00 p.m. EST but exempts several categories of travelers, including U.S. citizens and Lawful Permanent Residents.

Although not banned from the country, all U.S. citizens who visited China in the two-week period prior to their re-entry into the U.S. face heightened scrutiny. Citizens who entered the Hubei Province will face a mandatory 14-day quarantine upon re-entry; those who traveled more generally to mainland China will undergo monitoring at CBP ports of entry and may require two weeks of “self-monitored” quarantine.

In response to the coronavirus crisis, the U.S. Consulate in Guangzhou cancelled all immigrant visa appointments this week and has not indicated when services will resume.

The full text of the ban, including the exempted categories of travelers, is available here: https://www.whitehouse.gov/presidential-actions/proclamation-suspension-entry-immigrants-nonimmigrants-persons-pose-risk-transmitting-2019-novel-coronavirus/ 

In a narrow 5-4 decision Monday, the U.S. Supreme Court opened the door for the Trump administration to implement its controversial public charge policy, which expands the government’s ability to refuse nonimmigrant and immigrant visas based on applicants’ likelihood of becoming “primarily dependent” on government assistance.  Federal judges across multiple jurisdictions blocked the policy before it was scheduled to take effect in October 2019, but the Supreme Court has now lifted the freeze, allowing the policy to take effect everywhere. While the policy is aimed at inhibiting the immigration of low-income individuals, the change will add new, burdensome requirements for all nonimmigrant and immigrant visa applicants, including those with high earnings and net worth, by requiring the submission of extensive financial documentation including credit reports, bank statements, evidence of health insurance maintenance, and proof of assets and liabilities.

The policy also expands the definition of who is “primarily dependent” on government assistance.  Under the current regulations, “primary dependence” is determined by an applicant’s use of cash benefits like Supplemental Social Security Income.  The new policy expands the definition to include the use of non-cash benefit programs like Medicaid, food stamps, and other safety net programs.

Public charge denials spiked under the Trump administration even before the policy was proposed, with the State Department disqualifying more than 12,000 visa applicants on public charge grounds last year after rejecting only 1,033 on the same grounds in 2016 under the Obama administration.  The Supreme Court’s decision will likely further embolden government agencies and lead to even higher rates of public charge-based denials.

Lower courts are expected to hear lawsuits on the public charge policy changes in the coming months. The Supreme Court has not ruled on the merits of these lawsuits and it is possible that it will ultimately review the public charge issue again in the future.

Huddleston Law Group will be closely monitoring the policy’s potential impact on our clients’ immigration pursuits while maintaining a proactive approach in our submission and response strategies.

In a rare stroke of good immigration-related news for employers, USCIS has announced that it will implement electronic registration for cap-subject H-1Bs for the FY 2021 filing season, saving employers the time and expense of preparing full H-1B petitions prior to knowing whether those petitions will be accepted under the cap.  Online registration will begin March 1 and end March 20, 2020.

The prior cap system required the preparation and submission of a full H-1B petition for every applicant, which involved submitting a Labor Condition Application to the Department of Labor, completing all USCIS forms, obtaining degree translations and evaluations if applicable, compiling supporting documentation, and paying the government filing fees.  Thereafter, the applicants were subjected to a lottery and only those petitions selected were actually reviewed and adjudicated.  The remainder were returned to the petitioning employer, rendering the time, effort, and expense of the petition preparation moot.

Under the new electronic registration system, employers will register online with USCIS and pay a $10 fee for each potential cap-subject beneficiary.  USCIS will then conduct the cap lottery and notify employers as to which beneficiaries were selected.  Only then will employers prepare and submit actual H-1B petitions.

While this advance in efficiency is certainly welcome and long overdue, there is a strong possibility of technical issues with the launch of the system, and USCIS has reserved the right to revert back to the old cap system.  As a result, employers are encouraged to connect with immigration counsel now to identify and discuss potential candidates and assess any status issues and contingency plans.

On July 24, USCIS published a final rule making several major changes to the EB-5 Immigrant Investor Program effective November 21, 2019.  Those changes include:

1. Raising the minimum investments amounts from $500,000 to $900,000 for projects in a targeted employment area (TEA) and from $1 million to $1.8 million for non-TEA projects.  This change marks the first increase since the program was created in 1990.
2. Transferring TEA designation responsibility from the states to the Department of Homeland Security in an effort to combat perceived gerrymandering of TEAs and incentivize more projects in rural and high unemployment areas.  This change will likely result in fewer TEA projects, making it more difficult for investors to qualify for the lower investment amount.
3. Allowing EB-5 investors to keep their priority date if they have to file a new petition to change their underlying investment.  This change may be of only limited benefit to investors who filed their original petitions prior to the effective date of the rule change, as their new petitions will require the new, higher investment amounts.
4. Clarifying removal of conditions procedures by confirming that family members  who were not included in a principal investor’s petition to remove the conditions on their permanent residence must file independent petitions of their own.

Prospective investors seeking to take advantage of the EB-5 program as it stands now have less than four months to file petitions.  Please contact our office if you have questions or would like to discuss your options.

Long processing delays of all applications and petitions for immigration benefits are now considered to be at “crisis levels,” prompting a bipartisan group of 36 U.S. senators to write USCIS for an explanation and action plan.   The below summarizes this frustrating trend:

Read the letter here: