The Fairness for High Skilled Immigrants Act of 2019, introduced early in 2019 in both the House and the Senate (H.R. 1044 and S. 386), aims to eliminate the Green Card backlog for Indian and Chinese nationals. In July, the bill passed the House.

The Fairness bill would eliminate the per-country cap for employment-based immigrants and increase the per-country limitation for family-based immigrants. It eventually included a “do no harm” provision, which provides that anyone who had an approved employment-based immigrant petition (Form I-140) when the bill went into effect would not suffer any adverse effects.

Senator Charles Grassley (R-Ia.) introduced amendments to S. 386 that would have affected H-1B petitions. The amendments include an internet posting requirement, an LCA fee, and the elimination of the B-1 visa in lieu of H-1B visa status. Although the Fairness bill had bipartisan support, it was controversial. Opponents argued the bill pitted immigrants against each other – helping Indian nationals to the detriment of foreign nationals from other countries in what seemed to be a zero-sum game. Senator Rand Paul (R-Ky.) blocked the bill because it did not contain a “carve-out” for nurses. He introduced the BELIEVE Act, which would have made more visas available annually.

In mid-October, the Fairness bill again was blocked, by Senator Dick Durbin (D-Ill.) this time. Senators Durbin and Patrick Leahy (D-Vt.) introduced the Resolving Extended Limbo for Immigrant Employees and Families (RELIEF) Act, which is seen as a “win-win” solution, like Senator Paul’s proposal. The premise is simple: with more than four million immigrants on the Green Card waiting list, the number of visas available must increase. Under the RELIEF Act, the backlogs would be eliminated over a five-year period on a first-come, first-served basis; country caps would be eliminated; “aging out” children would be protected; and there would be a “do no harm” provision. Changes also include: (1) making immigrant visas available immediately for spouses and children of Green Card holders; and (2) providing that derivative beneficiaries of employment-based petitions be exempt from the Green Card limits. This would add tens of thousands of visas to the number currently available.

The RELIEF Act is endorsed by many immigration advocacy groups, as well as IEEE-USA, an association for engineering, computing, and technology professionals. According to Senator Leahy: “The mismatch between the supply and demand for green cards has left millions of immigrant families in legal limbo, stuck in a years-long backlog waiting for the chance to contribute to the nation.” To him and Senator Durbin the RELIEF Act is “commonsense legislation.” Others, however, believe that this approach will simply scuttle the Fairness Act – and there will be no progress at all.

A group of Democratic Senators are seeking a hearing on the various proposals.

Four thousand Liberian holders of Deferred Enforced Departure (DED) status and their roughly 4,000 U.S. citizen children may have to leave the United States because of the decision in African Communities Together v. Trump. Judge Timothy S. Hillman of the U.S. District Court for the District of Massachusetts decided that the Court lacked the authority to compel President Donald Trump to act to extend DED for those currently in that status.

DED status (formerly known as Extended Voluntary Departure), like Temporary Protected Status (TPS), is granted to individuals in the United States who cannot return to their home countries because of political or civil conflict or natural disasters. A major difference is that TPS was created by Congress and DHS was given discretion to grant, extend or terminate the status. DED is a Presidential grant. Liberia is the only country that currently has DED status although it has been granted to other countries in the past.

In response to a long period of civil war in Liberia, President George W. Bush in 2007 granted DED to Liberians when their TPS expired. Since then, Liberian DED was continually extended until March 31, 2018, when it was terminated by President Trump and Liberians received a 12-month wind-down period until March 31, 2019. In response, the African Communities lawsuit was filed seeking injunctive relief. Next, President Trump reconsidered and extended the wind-down period until March 30, 2020. In court, the plaintiffs argued that there is still reason to extend DED because of political instability and Ebola. They argued that eliminating DED now would hurt local communities and particularly the health care industry that employs many Liberians. They further argued that the government’s decision was based on discriminatory animus – reminiscent of arguments in the TPS and DACA cases.

There has been a legislative response but to date no resolution. Representative David Cicilline (D-RI) introduced the Liberian Refugee Immigration Fairness Act of 2019 in March. The bill would provide legal permanent residence to Liberians who have been living in the U.S. in DED status since 2014. Relief for Liberians was also included in H.R. 6, the American Dream and Promise Act of 2019 that passed in the House.

Reports are that the Liberian plaintiffs are considering an appeal.

Temporary protected status (TPS) for El Salvadorans in the U.S. has been extended through January 4, 2021, under an agreement with El Salvador, the Department of Homeland Security announced on October 28, 2019. There are 250,000 El Salvadorans in the U.S. with work permits on TPS.

The agreement provides that the two countries will cooperate on information sharing, border security, and “confront illegal migration.” The agreement also provides a 365-day transition period.

Since October 2018, when the U.S. District Court for the Northern District of California, in Ramos v. Nielsen, issued a nationwide preliminary injunction blocking termination of TPS for beneficiaries from El Salvador, Haiti, Nicaragua, and Sudan, DHS has been extending TPS and work authorization into 2020 for those individuals. In March 2019, TPS beneficiaries from Nepal and Honduras received similar treatment. If the preliminary injunction is lifted, DHS promised an “orderly transition” of 120 days or the previously announced termination date.

Acting Director of USCIS Ken Cuccinelli explained that this is not an extension of TPS for El Salvador, as that has a specific legal meaning, but “[r]ather, work permits for Salvadorans will be extended for 1 year past resolution of litigation for an orderly wind down period.” The Administration still wants to repatriate Salvadorans, but recognizes that “a sudden inflow of 250,000 individuals to El Salvador could spark another mass migration to the U.S. and reinvigorate the crisis at the southern border.”

Additional information on implementation of the extension will be published in the Federal Register. Please reach out to a Jackson Lewis attorney for details and specific advice.

 

 

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.

The U.S. Supreme Court has heard oral argument in a case in which it will decide whether a state may prosecute individuals for using false information on a Form I-9 Employment Eligibility Verification, a federal employment eligibility verification form. Our article is here.

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.