Immigrant Visas

DHS Publishes Final Rule Expanding Public Charge Ground of Inadmissibility

Effective October 15, 2019, unless halted by litigation, the standard by which a foreign national is determined to be “likely at any time to become a public charge” (and consequently inadmissible to the U.S.) will drastically change.

Old Definition and Application of Public Charge

Previously, a “public charge” involved situations where a foreign national was “primarily dependent on the government for subsistence as demonstrated by either (i) receipt of public cash assistance for income maintenance or (ii) institutionalization for long-term care at government expense.” Furthermore, sponsorship via an affidavit of support (filed on Form I-864) would generally prevent a foreign national from being considered a public charge. 

New Definition and Application of Public Charge

Under the new rule announced by the Department of Homeland Security (“DHS”) on August 14, 2019, “a public charge is [a foreign national] who receives one or more public benefit for more than 12 months in the aggregate within any 36-month period (such that, for instance, receipt of two public benefits in one month counts as two months).”

Forms DS-160 and DS-260 now require disclosure of social media accounts

On May 30, 2019, the U.S. Department of State added required questions about social media accounts or identifiers to the online nonimmigrant and immigrant visa application forms, the DS-160 and DS-260.  This means that anyone applying for a U.S. nonimmigrant visa (a temporary visa) or a U.S. immigrant visa (permanent residence, a green card) must disclose all social media accounts used in the last five years. Social media presumably will be reviewed by U.S. Consular personnel in the course of visa adjudications.

New policy guidance drastically changes USCIS’s adjudications process, announces that denials will now result in removal (deportation) proceedings

In a pair of policy memoranda released to the public in July 2018, the Administration is drastically changing the U.S. Citizenship and Immigration Service’s (USCIS, formerly INS) role in adjudications. Initially formed as the immigration benefits-adjudicating sub-agency when the Department of Homeland Security took over immigration functions from the Department of Justice after 9/11, USCIS is typically involved in a very low percentage of the overall enforcement actions of the DHS agencies. (Most enforcement is done by DHS’s other immigration sub-agencies, ICE and CBP.) For example, unless fraud or criminality is suspected, USCIS traditionally has not initiated removal (deportation) proceedings in the course of adjudicating benefits applications, such as nonimmigrant and immigrant visa petitions, applications for adjustment of status to U.S. permanent residence, or naturalizations. However, in a new policy memo released on July 5, 2018 (but dated June 28), entitled Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens (“NTA Memo”) and effective immediately, the Administration announced that USCIS will now initiate removal proceedings in a wide variety of circumstances.

Travel Ban 3.0 – On Hold by the Courts

In two separate Federal Court decisions issued on October 17, 2017, the majority of the travel restrictions set forth in President Trump’s September 24, 2017 proclamation titled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or other Public-Safety Threats” were blocked. As a result, nationals of Iran, Libya, Syria, Yemen, Somalia and Chad will not be restricted from traveling to the United States. However, all immigrants and nonimmigrants from North Korea and certain government officials and their family members from Venezuela traveling on business or tourist visas (B-1/B-2) will continue to be restricted from travel to the U.S. The U.S. Department of Justice has stated that it will appeal these rulings.  

© Jewell Stewart & Pratt PC 2017

Trump Administration Announces Travel Ban 3.0

On September 24, 2017 President Trump announced an extended and enhanced version of the travel ban that was previously in place under Executive Order 13780 (EO-2). The Presidential Proclamation titled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or other Public-Safety Threats,” a related Fact Sheet, and FAQs for the new ban are available on the White House website. As with EO-2, the ban affects immigrant and nonimmigrant visa issuance only. Therefore, nationals from the affected countries who already hold visas will not have those revoked. The U.S. Department of State has also announced that previously scheduled visa appointments will not be cancelled.

Trump Administration to require interviews for employment-based permanent residence applications

On Friday August 25, 2017, U.S. Citizenship and Immigration Services (USCIS) confirmed to Politico that certain permanent residence (green card) applicants must complete an in-person interview as part of the application process. The requirement will apply to anyone moving from a work visa to permanent residence, and is “part of President Donald Trump’s plan to apply ‘extreme vetting’ to immigrants and visitors to the U.S.”

Update: State Department now using Form DS-5535, Supplemental Questions for Visa Applicants

News Release from Jewell Stewart & Pratt PC – June 5, 2017 As noted in our prior post, the Department of State recently published a Notice of request for emergency approval by the Office of Management and Budget (OMB) for its new form, Form DS-5535, Supplemental Questions for Visa Applicants. The form was designed to collect extra information from visa applicants who have been determined to warrant additional scrutiny in connection with terrorism or other national security-related visa ineligibility.

According to a news report from The Washington Post, Form DS-5535 was approved by the OMB and has been in use at U.S. embassies and consulates since May 25, 2017. A copy of the form is currently available on the U.S. Embassy and Consulates in Turkey website. The extra information it collects includes:

  • Countries visited over the last fifteen years
  • Email addresses used in the past five years
  • Social media handles and aliases used in the past five years

Form DS-5535 is authorized on an emergency basis through November 2017, but as The Washington Post article notes, it is expected to be authorized on a permanent basis.

© Jewell Stewart & Pratt PC 2017

Department of State plans to heighten screening and vetting of visa applicants: Update

As noted in our prior blog post, a Department of State cable sent by Secretary Tillerson on March 17, 2017 provided immediately effective guidance to all U.S. diplomatic and consular posts regarding the screening and vetting of visa applications.

On May 4, 2017, the Department of State published a Notice of request for emergency OMB approval and public comment on a new Form DS-5535, Supplemental Questions for Visa Applicants. This form would collect information from visa applicants who have been determined to warrant additional scrutiny in connection with terrorism or other national security-related visa ineligibility.

USCIS Publishes Final Rule For Certain Employment-Based Immigrant and Nonimmigrant Visa Programs

News Release from Jewell Stewart & Pratt PC The final rule “Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers,” was published today in the Federal Register, and will take effect 60 days later (January 17, 2017). This is notable as it will be effective before the inauguration of the new president two days later.

This rule is concerned with creating and amending regulations related to employment-based visa programs and is intended to better enable U.S. employers in retaining high-skilled nonimmigrant workers through temporary and permanent sponsorship, and to provide job flexibility and certainty to foreign workers who have been in the U.S. for some time.

Jewell Stewart & Pratt will be posting analysis on the rule next week, in the interim, the highlights are:

  • Retention of approved immigrant visa petitions (I-140) and priority dates.
  • H-1B extensions beyond the sixth year.
  • Job portability for H-1B workers and for those who are in the final step of the permanent residence process.
  • Definition of nonprofit entity for H-1B cap exemption.
  • Grace periods for nonimmigrant workers.
  • Employment authorization in compelling circumstances for certain beneficiaries (and their dependents) of an approved I-140 petition, as well as employment authorization automatic extensions in certain circumstances.

© Jewell Stewart & Pratt PC 2016

USCIS issues draft policy memo regarding job portability provisions of Immigration and Nationality Act

The American Competitiveness in the Twenty-First Century Act of 2000 (AC21) addressed the problem of delays and backlogs in the employment-based immigrant visa process by permitting certain applicants for adjustment of status to change jobs or employers. (See our post on the subject here.) Employers of these individuals do not need to retest the labor market for the new position, or obtain new, approved petitions on their behalf, if the following criteria are satisfied:

  1. An immigrant visa petition (Form I-140) on behalf of the applicant has been approved, or was approvable when filed.
  2. A filed application to adjust status to permanent resident, filed on the basis of the I-140, remains unadjudicated after 180 days or more.
  3. The applicant’s new job is in the same or a similar occupational classification as the job for which the petition was filed.