The Visa Bulletin, published every month by the Department of State (DOS), is the key to the Green Card process. The Department of State is charged with allocating the statutory 140,000 employment-based immigrant visas each year. The Bulletin announces when an applicant can file for the coveted Green Card. A foreign national cannot file an application for adjustment of status or receive an immigrant visa from a consulate abroad until the foreign national’s priority date is “current” in the Visa Bulletin. The priority date is “current” when it is earlier than the date listed in the Bulletin for the relevant visa type. A foreign national’s priority date is set when the individual files the first step in a Green Card case – either the filing of a PERM application or the filing of an I-140 Immigrant Visa Petition. The Visa Bulletin reflects the DOS’s prediction of the overall visa demand (by visa type and country of birth) for any period based on the number of qualified visa applicants reported by DOS, pending adjustment of status applications reported by USCIS, and the historical drop off rates (denials, withdrawals, and abandonments).

There is an issue with the current system because the law states that no one country can use more than 7% of the 140,000 immigrant visas available each year. This means that if one country uses all its 9,800 visas in a year, the remaining applicants have to wait until the next year. Due to the high number of sponsored Indian citizens by U.S. companies over the last 20 years, an enormous backlog has developed for people born in India. Currently, estimates are that Indian nationals could wait from 20-75 years to obtain Green Cards, while individuals from other countries might have to wait only a year or two. Of course, few really wait that long. Many leave the U.S. and go “home” or to more “welcoming” countries. This creates additional work for the employee and company to maintain valid nonimmigrant status while these backlogs ease their way forward.

To attempt to relieve some of the wait, since 2015, the Visa Bulletin has included two charts for each type of visa: Application Final Action Dates (dates when visas may finally be issued) and Dates for Filing Applications (earliest dates when applicants may be able to apply). The application filing dates are generally earlier than the final action dates and the USCIS decides each month whether the filing dates can be used instead of the final action dates. Months may go by when only the final action dates are usable. Charles Oppenheim, DOS Chief of the Visa Control and Reporting Division, provides analysis and projections about the Visa Bulletin from time to time. These projections can help determine whether to expect “progress” or “regressions” for various categories and countries. The predictions provide some input into Green Card strategies, but nothing is guaranteed. The lines progress or regress (like a market economy) based on the changing demand – and that tends to be unpredictable.

Various bills have been introduced in the House and Senate to try to make the system more equitable and ultimately more efficient. Some bills would eliminate the “per country 7% limitation.” Although this would help the backlog for Indian workers, it would be detrimental to employees from other countries. In any event, little improvement can be expected until the annual allocation of Green Cards is increased.

The Trump Administration would like to institute a “points-based” or “merit-based” immigration system, cut down on family-based immigration and eliminate the Diversity Lottery.  To date, Congress has not passed any such changes to immigration laws and the Diversity Lottery remains in effect.  This year, 55,000 visas will be available.  Diversity visas are available to people from countries with historically low rates of immigration to the United States.

While the Diversity Lottery represents only a small portion of the visas available each year and the odds of success in obtaining visas are low, it is a popular program and receives a lot of attention.  Individuals from approximately 200 countries take a chance and enter the Diversity Lottery each year.  In FY 2018, the countries with the highest number of applications were Uzbekistan (2,114,446), Ukraine (1,450,487), Nepal (1,187,350) and Sierra Leone (1,011,725).  These numbers represent approximately 3% to 6% of the populations of those countries.  Only a small fraction of the applicants are selected.  In FY 2018, Uzbekistan “won” 4,494, Ukraine 4,478, Nepal 4,097 and Sierra Leone 1,790.

Changes in this year’s Diversity Lottery requirements have led to some unintended consequences.  A passport number is now required for entry into the Diversity Lottery.  Following the announcement, Nepal has experienced a rush on passport applications.  According to the Nepalese Department of Passports (DOP), on an average day the DOP would receive 500 passport applications.  But since the Diversity Lottery opened on October 2, 2019, DOP has been receiving approximately 2,800 applications per day primarily from applicants aged 18 to 45.  In the ordinary course, it takes about 15 days to acquire a passport in Nepal.  To meet the demand and try to ensure that all applicants receive their passports in time to register for the Diversity Lottery before it closes on November 5, 2019, DOP is shifting staff, adding more security personnel and increasing working hours.  These changes will remain in force until the number of passport applicants reverts to “normal.”

 

 

Despite litigation that enjoined USCIS from proceeding with the implementation of the Public Charge Rule, Department of State (DOS) seemed ready to proceed with it at Consulates abroad.

But, as of this week, DOS is no longer “fast-tracking” the Public Charge Rule. It withdrew its request for emergency review of its new public charge form, DS-5540, that it proposes to use to determine if applicants are “self-sufficient and not a strain on public resources” and, on October 24, 2019, began a 60-day comment period.

Once the comment period is over, Office of Management and Budget (OMB) review will take place. How long that review will run is hard to know. If the experience with the OMB review of another controversial Trump Administration rule – the rescission of the H-4 EAD Rule – provides any indication, the review could go on for months.

Jackson Lewis will continue to provide updates as they become available.

President Donald Trump’s new “Presidential Proclamation on the Suspension of Entry of Immigrants Who Will Financially Burden the United States Healthcare System” likely will reduce drastically the number of legal immigrants admitted to the U.S. It is scheduled to go into effect on November 3, 2019.

Exempting refugees and asylees, the Proclamation suspends the entry of aliens who will purportedly “financially burden the United States healthcare system” because such entries are “detrimental to the interests of the United States.” The Proclamation asserts that “lawful immigrants are about three times more likely than United States citizens to lack health insurance.”

While new immigrants are more apt to lack healthcare coverage than U.S. citizens, they are not the most prone to be uninsured. Uninsured U.S. citizens still account “for three-quarters of the total 72.4 million uninsured.” Immigrants lack health insurance for a variety of reasons. Barriers to coverage include wait periods, “fear, confusion about eligibility policies, difficulty navigating the enrollment process, and language and literacy challenges.” The problem of uninsured immigrants can be solved best by eliminating these barriers.

Not having health insurance does not necessarily mean that immigrants are a “financial burden” on the U.S. healthcare system. A Tufts University School of Medicine study asserts that when immigrants arrive in the U.S., they are healthier than most U.S. citizens and do not need or use as much healthcare as native-born Americans. And, if they eventually obtain health insurance, they actually subsidize U.S. citizens because they pay premiums but do not draw as much out of the system. While the data is limited, eliminating the barriers to coverage actually might be more beneficial to the healthcare system than preventing immigration.

On or after November 3, 2019, any foreign national seeking to enter the U.S. from abroad on an immigrant visa (that is, as a Legal Permanent Resident or “Green Card” holder) will have to show to a Consular Officer’s satisfaction that they will be covered by an approved health insurance program within 30 days of entry or that they possess “the financial resources to pay for reasonably foreseeable medical costs.” Approved health insurance coverage will include, among other plans, employer-sponsored plans, unsubsidized health plans offered in State individual markets, catastrophic coverage, a family member’s plan, and visitor health insurance plans. But even those who will be able to gain coverage may not be able to do that within 30 days of entry because, under federal law, group health plans and those offering group health insurance coverage can have waiting periods of as long as 90 days.

Some have estimated that the Proclamation, which does not require Congressional support, could reduce by two-thirds the number of legal immigrants admitted. It likely would have the most drastic effect on low-income people in programs the Administration would like to cut – particularly family-based “chain migration” and the diversity lottery.

Government officials in the State Department and the Center for Consumer Information and Insurance Oversight that oversees the implementation of the Affordable Care Act are “huddling in multiple meetings” to understand how the Proclamation will be enacted. In the meantime, the Proclamation, like the Public Charge Rule, may become the subject of litigation. The Public Charge Rule is on hold due to a court injunction.

Please reach out to a Jackson Lewis attorney if you have questions about the effects of this Proclamation. We will provide updates as they become available.

U.S. District Court Judge George S. Daniels of the Southern District of New York enjoined the Trump Administration’s new Public Charge Rule scheduled to go into effect on October 15, 2019. The new Rule has been the subject of much controversy and would have made it more difficult for foreign nationals to obtain green cards or even secure or extend temporary non-immigrant visa status.

In State of New York et al. v. U.S. Department of Homeland Security, 1:19-cv-07777-GBD, the Judge Daniels held that:

  • Plaintiffs, including the State of New York, the City of New York, the State of Connecticut, and the State of Vermont, satisfied all standing requirements;
  • The new Rule violated the Administrative Procedure Act (APA) because it exceeded delegated authority under the Immigration and Nationality Act (INA) and was arbitrary and capricious; and
  • The new Rule violated the Rehabilitation Act because it denies access to benefits to individuals with disabilities.

In a companion case, Make the Road New York et al. v. Ken Cuccinelli, 1:19-cv-07993-GBD, Judge Daniels also enjoined DHS from requiring the use of any updated forms related to the new Rule until further notice.

It has been reported that the Department of State will proceed with its own version of the Public charge Rule scheduled to take effect October 15, 2019, meaning that Judge Daniels’ nationwide injunctions are limited to DHS’s new Rule.

Jackson Lewis will provide updates as they become available.

Although not legal on the federal level, the marijuana industry is a fast-growing economic sector in the U.S. Thirty-three states have legalized medical marijuana and 10 of those have legalized recreational use. Based on online job search websites, there are about 200,000 to 300,000 marijuana-related jobs available (many on the lower-paid agricultural-side). As the industry grows, the need for more high-skilled workers, such as chemists, is likely to grow. Canada legalized marijuana in 2018 and the first marijuana exchange-traded fund is already becoming profitable. A Wall Street analyst who has followed the industry since 2016 forecasts that the market in the U.S. could grow to $80 billion by 2030 if there is federal legalization. Without federal legalization, however, the profits and high-skilled foreign workers will go elsewhere.

Under U.S. immigration law, any foreign nationals, even green card holders, who participate in the marijuana industry, make investments, or use marijuana where it is legal (even for medicinal purposes) may be subject to harsh consequences — barred from returning to the U.S. or prevented from naturalizing (for at least five years).

There have been bills introduced in Congress that would help to alleviate the conflict between state and federal laws, including eliminating federal penalties for those complying with state marijuana laws and removing marijuana from the list of controlled substances.  But to date none, other than the SAFE (Secure and Fair Enforcement) Banking Act, have had much traction. SAFE, a bill that would protect banks that work with the legal marijuana industry, passed in the House of Representatives but likely will not pass in the Senate. If passed, this bill would be a first step, but would do nothing to protect foreign entrepreneurs and workers involved in the legal marijuana industry.

Should Congress pass a bill removing marijuana from the “controlled substance” list, it would end the immigration problem (at least going forward). Immigration “penalties” that affect those involved with the legal marijuana industry come into play because marijuana is considered a “controlled substance” under federal law. The alternative would be to change federal immigration law regarding admissibility so that use of marijuana or participation in the legal marijuana industry would no longer be a bar to benefits. Some foreign nationals who have been denied benefits on these bases are appealing the decisions.

Non-U.S. citizens should be wary of participation in the marijuana industry. If you have questions about these issues, please reach out to a Jackson Lewis attorney. We will continue to follow this issue and provide updates as they become available.

A federal judge has sentenced Pradyumna Kumar Samal to more than seven years in prison, fined him $10,000, and ordered him to pay restitution for the taxes he stole. United States of America v. Samal, No. 2:18-cr-00214 (W.D. Wash. Sept. 20, 2019).

Samal, the ex-CEO of two IT staffing companies, was investigated for visa fraud by the Department of State and the Department of Homeland Security beginning in 2015. The evidence against his employment practices included emails, documents, and interviews with former and current employees and contractors. Samal fled the country during the investigation, and upon returning to the U.S. in 2018 he was arrested at an airport in Bellevue, Washington. Samal was charged with a multi-year visa-fraud that included a “bench-and-switch” scheme, exploitation of foreign national workers, and defrauding the U.S. government by submitting false and forged immigration application materials.

The fraud arose from petitions filed by Samal for close to 250 H-1B beneficiaries. The petitions stated that the foreign nationals would work at specific client sites and included forged documents from Samal’s clients (and some fictitious clients) supporting his assertions. The investigation showed that Samal was petitioning for employees he hoped to place with end clients, but he had no legitimate assignments for the beneficiaries when he filed the petitions. He was trying to eliminate “lag times” and gain a competitive advantage by having “H-1B beneficiaries” available for future assignments. Because he had no planned assignments for these foreign nationals, they often had to look for or wait for assignments after they arrived in the U.S. While they waited, Samal violated more immigration laws by not paying the foreign nationals – illegally “benching” them. Whether the foreign nationals eventually “found” work or not, they had to pay Samal a “partially-refundable ‘security deposit’ of as much as $5,000 for the visa filings” – yet another violation. Beyond the immigration violations, Samal also embezzled more than $1 million in withheld income that he never submitted to the government. Instead, he purchased luxury items and used the money for personal expenses.

Most IT consulting and staffing companies are engaged in legitimate immigration pursuits. For some time, USCIS has been focusing enforcement efforts on consulting companies that place their H-1B employees at client sites. This includes questioning whether computer programmers are performing in specialty occupations (and thus eligible for H-1B petitions) and demanding extensive documentation to prove that IT consultants are in bona fide employer-employee relationships with their H-1B petitioners.

Please contact a Jackson Lewis attorney with any questions about this case, the H-1B program, or USCIS.