To read our publication from our practice group co-leaders on oral argument before the Supreme Court on DACA and implications of the proceedings, please go here.
To read our publication from our practice group co-leaders on oral argument before the Supreme Court on DACA and implications of the proceedings, please go here.
Poland will become the 39th member of the Visa Waiver Program (VWP) on November 11, 2019.
Polish citizens and nationals will be able to apply to travel to the United States for tourism or business purposes for up to 90 days without obtaining a visa stamp — but they first must register online with the Electronic System for Travel Authorization (ESTA).
Acting Secretary of the Department of Homeland Security Kevin McAleenan made this announcement, explaining that the move is “a testament to the special relationship that exists between our two countries, and the ongoing friendship and close cooperation on our joint security priorities.”
Polish citizens and nationals who already have valid B1/B2 visa stamps in their passports should continue to use those for travel to the United States. ESTA will start accepting online applications for the VWP from Polish citizens and nationals who do not have valid B1/B2 visas on November 11th.
In order to be eligible for the VWP, an applicant must have an e-passport enhanced with an embedded electronic chip for security. Because ESTA applications can take up to 72 hours to adjudicate, it is important to apply to ESTA a comfortable time in advance of the departure date.
ESTA authorization generally is valid for multiple trips to the United States for a two-year period or until the passport expiration date, whichever is earlier.
Should you have any questions about the VWP or ESTA, please reach out to a Jackson Lewis attorney.
Predictably, the “Presidential Proclamation on the Suspension of Entry of Immigrants Who Will Financially Burden the United States Healthcare System” has been blocked from going into effect for the time being. The U.S. District Court in Portland, Oregon, in Doe v. Trump, issued a 28-day temporary restraining order (TRO) in an unusual weekend session just before the proclamation was to go into effect on November 3, 2019.
The case, brought by a coalition of civil rights organizations, challenged the requirement that any foreign nationals seeking to enter the U.S. on an immigrant visa (as a Legal Permanent Resident or “Green Card” holder) must 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.”
The plaintiffs challenged the Proclamation as “arbitrary, an ‘abuse of discretion’ and discriminatory.”
Judge Michael H. Simon was swayed by the plaintiffs’ arguments and decided that there would be irreparable harm if the Proclamation went into effect. He agreed to “‘freeze things the way they are’” for a determination on the merits. He set the hearing on a preliminary injunction for November 22, 2019.
An American Immigration Lawyers Association (AILA) representative stated: “‘We applaud the court’s ruling; countless thousands across the country can breathe a sign of relief today because the court recognized the urgent and irreparable harm that would have been inflicted in the absence of a TRO. This proclamation would permanently separate families and damage employers . . . . ’”
Jackson Lewis will continue to follow this case and provide updates as they become available.
In yet another update, DHS has announced that it is extending Temporary Protected Status (TPS) documents as well as work authorization until January 4, 2021 not just for El Salvador but also for Haiti, Honduras, Nepal, Nicaragua and Sudan. These extensions are based on injunctions and stays in various pending cases: Ramos, Saget, and Bhattari.
All TPS related documents, i.e. Forms I-94 and I-797 with expiration dates of January 2, 2020 (El Salvador, Haiti, Nicaragua and Sudan), January 5, 2020 (Honduras) and March 24, 2020 (Nepal) will remain in effect through January 4, 2021 if the individual beneficiaries filed for renewals during the applicable pre-registration periods.
Employment Authorization Documents (EADs) with the expiration dates noted in the Federal Register will be automatically extended through January 4, 2021. Anyone with one of those expiration dates who already applied for an EAD extension but has not yet received it is also eligible for the automatic extension.
If the government prevails in the cases that are challenging the termination of TPS status, TPS will terminate and wind down as follows:
Haiti, Honduras, Nepal, Nicaragua, Sudan: No earlier than 120 days from the issuance of the decision (with the possibility that Honduras and Nepal could be no earlier than 180 days if the government moves to vacate in Bhattari).
El Salvador: No earlier than 365 days from the issuance of the decision.
While no applications are currently necessary to receive the above automatic extensions, the government has reserved the right to require applications at a later date.
For more information on how these extensions and termination policies apply in specific circumstances, Jackson Lewis attorneys are available to assist you.
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.