On November 12, 2019, the U.S. Supreme Court heard almost 90 minutes of oral argument on the fate of the Deferred Action for Childhood Arrivals (DACA) Program.
On November 14, 2019, USCIS published its proposed Fee Increase Regulation and, to no one’s surprise, fees are increasing dramatically in a number of categories and the Regulation also contains procedural changes to application and petition processing that go beyond mere increases in processing fees.
In July 2019, USCIS announced and published new EB-5 regulations that have now taken effect.
Ken Cuccinelli announced during a speech at SHRM’s Global Mobility and Immigration Symposium in Washington D.C. that the new H-1B online cap registration tool must demonstrate its ability through the testing phase before it can be in place before the beginning of the next filing season early next year.
Applicants who receive an immigrant visa after the order goes into effect on November 3rd need to demonstrate that upon entry, they will have insurance in place within a month before issuance of the visa.
The Department of State (DOS) has released instructions outlining how to apply for the 2021 Diversity Immigrant Visa Program, which provides 55,000 diversity visas to individuals from countries that historically have low rates of immigration to the United States.
The latest news at the firm including recent and upcoming events and publications.
1. Supreme Court Hears DACA Arguments
November 12, 2019, was a day of reckoning for one of the signature achievements of the Obama Administration as the U.S. Supreme Court heard almost 90 minutes of oral argument on the fate of the Deferred Action for Childhood Arrivals (DACA) Program. With hundreds of demonstrators outside the Courthouse, news outlets reported that Justices Gorsuch, Alito, Thomas and Kavanaugh seem favorably disposed toward the Trump administration’s desire to end the program, but that it was not clear that Chief Justice Roberts was equally convinced. An interesting wrinkle in the arguments was that the Administration’s position on DACA appears to be framed by the conservative Justices as a decision to “stop enforcing” DACA akin to other exercises of prosecutorial discretion which is different from the initial position that the program was “illegal.” The liberal Justices saw it more as an inadequately explained and therefore unjustified termination of an existing government program based on the program’s alleged illegality and did not appear to find the Administration’s current reasoning persuasive. It will be interesting to see whether Justice Roberts does indeed vote with the liberal block or follow the conservatives. The DACA program is supported by major employers including Microsoft, prestigious universities and State governments, but Congress has failed to enact a statutory solution for Dreamers. A decision on the case is not expected until sometime in 2020 leaving hundreds of thousands of DACA beneficiaries in limbo with no Congressional action in sight.
Details are here.[Back to Top]
2. USCIS Proposes Substantial Fee Increases
On November 14th, USCIS published its proposed Fee Increase Regulation and, to no one’s surprise, fees are increasing dramatically in a number of categories and the Regulation also contains procedural changes to application and petition processing that go beyond mere increases in processing fees. One major change is that the fee for Adjustment of Status which currently totals $1225 including the fees for biometrics, travel and work authorization will increase by $970 to a total of $2195 because the fees for the travel and work authorization will be charged separately under the proposed rule. In addition, the reduced fee for children under 14 has been eliminated. The fee for Naturalization will also increase substantially. The biometrics fee of $85 will go away but the increases in application fees where biometrics are normally collected (or not collected in some cases) more than make up this difference. For petitioners who rely on premium processing, there is also a procedural change – under the proposed rule, premium processing will be 15 business days and not 15 calendar days.
Details are here.[Back to Top]
3. New EB-5 Regulations Take Effect, Program Extended Through December 20
In July 2019, USCIS announced and published new EB-5 regulations that nearly doubled minimum investment amounts, dramatically changed TEAs designations, changed priority date retention. For details on what the most important changes and the impacts on regional centers, developers, and investors, read our blog here, and watch our webinar here.[Back to Top]
4. USCIS Indicates H-1B Registration Tool Must Pass Testing to Take Effect in 2020
Ken Cuccinelli, Acting Director of United States Citizenship and Immigration Services (USCIS) announced during a speech at SHRM’s Global Mobility and Immigration Symposium in Washington D.C. that the new H-1B online cap registration tool must demonstrate its ability through the testing phase before it can be in place before the beginning of the next filing season early next year. The new H-1B cap registration program would require employers seeking to file H-1B cap cases to register online in order to enter the H-1B lottery. Employers would then be allowed to file full petitions exclusively for registrations selected in the lottery, which would have to be filed with USCIS during a period of at least 90 days. A $10 processing fee is applicable to all H-1B petitions at the time of submission. The primary concern is the system’s ability to manage the volume that it is expected to face; a legitimate concern that could result in the program being removed altogether.
Details are here.[Back to Top]
5. Trump Administration Attempts Bar on Immigrants Lacking Health Insurance, but Judge Issues TRO
In early October, Donald Trump issued a proclamation blocking the admission of individuals applying for immigrant visas who cannot demonstrate their ability to acquire health insurance within 30 days of their entrance into the United States. Any applicants who receive an immigrant visa after the order was to go into effect on November 3rd would need to demonstrate when applying for a visa that within 30 days of entering the United States, they would have insurance in place. Individuals who were issued immigrant visas prior to November 3rd but entering after that date are not covered by the proclamation.
Under the executive action, approved health insurance coverage includes coverage under any of the following plans:
- an employer-sponsored plan, including a retiree plan, association health plan, and coverage provided by the Consolidated Omnibus Budget Reconciliation Act of 1985;
- an unsubsidized health plan offered in the individual market within a State;
- a short-term limited duration health policy effective for a minimum of 364 days — or until the beginning of planned, extended travel outside the United States;
- a catastrophic plan;
- a family member’s plan;
- a medical plan under chapter 55 of title 10, United States Code, including coverage under the TRICARE program;
- a visitor health insurance plan that provides adequate coverage for medical care for a minimum of 364 days — or until the beginning of planned, extended travel outside the United States;
- a medical plan under the Medicare program; or
- any other health plan that provides adequate coverage for medical care as determined by the Secretary of Health and Human Services or his designee.
For individuals over the age of 18, Medicaid is not considered acceptable health insurance coverage.
The Trump Administration is basing the action on Section 212(f) of the Immigration and Nationality Act which permits the President to bar the entry of people deemed to be detrimental to the interests of the United States. This is the section of the law used to justify the travel ban. Critics are already arguing that extending this provision beyond physical security issues is impermissible and a court challenge is expected soon.
A Federal Judge has issued a Temporary Restraining Order on the policy, which prevents its implementation for at least 28 days as of its issuance on November 2.[Back to Top]
6. DOS Releases Instructions for the 2021 Diversity Immigrant Visa Program
The Department of State (DOS) annually allocates visas for a class of immigrants known as “diversity immigrants” from countries with historically low rates of immigration to the United States. For Fiscal Year 2021, there will be 55,000 Diversity Visas (DVs) available at no cost.
Requirement 1: Individuals from eligible countries may qualify. The full list of eligible countries can be found beginning on page 16 of the DOS announcement.
If not born in an eligible country, there are two other possible ways to qualify.
- If your spouse was born in an eligible country.
- If you were born in an ineligible country in which neither of your parents was born or legally resident at the time of your birth, you may claim the country of birth of one of your parents if it is a country whose natives are eligible for the DV program.
Requirement 2: Diversity Visa applicants must adhere to the education work requirement of the program by having either:
- A minimum of a high-school or its equivalent, defined as successful completion of a 12-year course of formal elementary and secondary education;
- A minimum of two years of work experience within the past five years in an occupation that requires at least two years of training or experience to perform.
Details: Department of State announcement is here.[Back to Top]
7. KLASKO NEWS
Klasko Immigration Law Partners is launching a series of webinars covering various litigation options for clients. In this difficult immigration environment, employers and foreign nationals alike are facing unreasonable adjudication delays, inconsistent decisions, and increased denials at an unprecedented rate. Registration is currently open for Employers and EB-5 Investors, with sessions for Individuals, as well as Universities, Hospitals, and Research Institutions coming soon.
IN THE NEWS
William A. Stock on ABC7 WJLA about Supreme Court DACA Hearings
Bill spoke with ABC7 WJLA on Monday, November 11 about the details and the high stakes regarding the future of DACA.
William A. Stock featured on Sonoma County Morning News Radio on DACA Developments
On Tuesday, November 12, Bill Stock talked to the KSRO morning show about the latest developments with DACA and the Supreme Court’s decision on upholding the program.
William A. Stock featured in Forbes.com Article about Trump’s H-a EAD Plans
Bill was interviewed by Forbes.com about the Trump administration’s new policies regarding work authorization for H-1B visa holder’s spouses.
H. Ronald Klasko and Daniel B. Lundy Mentioned in Law360 about Litigation on Behalf of EB-5 Investors
The article covers the litigation on behalf of EB-5 investors to the Jay Peak project, listing Ron and Dan as representation to some of the 70 investors to protect their immigration benefits.
William A. Stock on NBCnews.com about Increased EB-5 Investment Minimums
In this article, Bill is quoted about the new EB-5 regulations nearly doubling investment minimums, now in effect.
RECENT SPEAKING ENGAGEMENTS
H. Ronald Klasko
Ron spoke to students on November 5th at Harvard Business School about immigration options for entrepreneurial MBA students.
H. Ronald Klasko
Ron was a featured panelist on the U.S. Chamber of Commerce Webinar titled To Sue or Not to Sue: Pursuing Litigation to Overcome Denials and Delays on November 6th discussing litigation options for processing delays and challenging USCIS denials.
H. Ronald Klasko
Ron presented on a panel titled Litigating Employment Based Cases at the NJICLE Advanced Corporate Immigration Conference on November 12th.
Andrew J. Zeltner | Jordan J. Gonzalez
Drew and Jordan led two workshops for students at Princeton University on November 14th about visa options for postdocs.
William A. Stock
Bill presented on Immigration Updates for Researchers at Fox Chase Cancer Center on November 15th in Philadelphia.
UPCOMING SPEAKING ENGAGEMENTS
H. Ronald Klasko | William A. Stock | Daniel B. Lundy
The Klasko business litigation team will lead a webinar titled When All Else Fails: Pursuing Litigation to Overcome Denials and Delays on December 3rd
H. Ronald Klasko | Daniel B. Lundy | Anu Nair
On December 4th, the Klasko litigation team will lead a webinar titled Overcoming EB-5 Denials and Delays through Litigation.
Elise A. Fialkowski | Michele G. Madera
Elise and Michele will be featured speakers on the SHRM Legal Update webinar on December 5th covering the latest developments in immigration and worksite compliance.
Anu was recognized by her alma mater, Benjamin N. Cardozo School of Law, for overcoming challenges in the face of adversity at the tenth annual BALLSA alumni dinner.
ICYMI: RECENT BLOG POSTS AND ALERTS
The Advantages & Disadvantages of Using E-Verify
In this post, this infographic compares the pros and cons of using E-Verify to compare employees’ I-9s to the U.S. DHS and Social Security Administration records.
Uncertainty Ahead: Filing H-1B Cap Petitions Might be Very Different in 2020
In this article, Lauren Berkowitz covers recently announced USCIS plans for processing H-1B processing using electronic pre-registration.
What’s in a Dish? Klasko’s Annual Firmsgiving
In this post, Klasko staff members share details of some of the dishes served during this Klasko annual event.
In Memoriam: Richard R. Rulon
Klasko remembers one of our firm’s founding partners, Richard R. Rulon for his friendship and years of contributions to the firm, much of it still engrained in the firm’s culture today.
Cross-Border Employers Face Critical GDPR Risks
In this article, Michele Madera and Jordan Fischer discuss the complicated process of transporting and protecting employee’s personal data across international borders.
On Friday, November 8, firm staff members came together to kick off the holiday season at the 4th annual potluck-style Firmsgiving. More than 60 dishes were created and enjoyed by staff members! For more on the history of the event and a description of four this year’s dishes, check out our blog called “What’s in a Dish?”. The event is truly a masterpiece in event planning and logistics, so a big thank you to the Social Committee for the time and energy it takes to execute!
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This newsletter was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers, of which Klasko Immigration Law Partners is an active member.