On Wednesday August 14, USCIS and DHS published in the Federal Register the new final rule amending the regulations by which DHS determines admissibility on “public charge” grounds. Specifically, this is a change in the rule and a clarification of the definitions of what constitute a “public charge” and “public charge benefits.” The rule will go into effect at 12:00 a.m. Eastern Time on October 15, 2019, and cases filed prior to this date will be adjudicated based on the previous guidelines. The new rule will not affect currently pending cases. If any foreign nationals have received assistance from one of the programs designated below, they should advise our office at the initiation of any nonimmigrant or immigrant process so we can evaluate if the receipt will pose a problem.

The rule defines the term “public charge” to mean an individual who receives one or more designated public benefits for more than 12 months, in the aggregate, within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months).

The agency considers the following programs as grounds for inadmissibility:

• Supplemental security income (SSI)
• Temporary Assistance to Needy Families (TANF)
• State general relief or general assistance
• Medicaid programs covering institutionalization for long term care
• Nonemergency Medicaid
• Supplemental nutrition and assistance program (SNAP, formerly food stamps)
• Section 8 Housing Choice Voucher Program
• Section 8 Project-Based rental assistance
• Public Housing

The rule will also affect those in nonimmigrant status if they have received any of the aforementioned public benefits above the designated threshold (12 months within any 36-month period). If they do receive such benefits, they will no longer be eligible for an extension or change of state.

The final rule does not include receipt or potential receipt of the following benefit programs as grounds for inadmissibility:

• Emergency medical assistance
• Disaster relief
• National school lunch or school breakfast programs
• Foster care and adoption
• Head Start
• Child Health Insurance Program including Medicaid for Aliens under 21
• Earned Income Tax Credit or Child Tax Credit
• Public benefits received by individuals who are serving in active duty or in the Ready Reserve component of the U.S. armed forces, and their spouses and children
• Public benefits received by certain international adoptees and children acquiring U.S. citizenship
• Medicaid for pregnant women
• Medicaid for school-based services (including services provided under the Individuals with Disabilities Education Act)

Benefits received by the applicant’s U.S. citizen children or other family members are not considered in determining whether the applicant is likely to become a public charge. The final rule also clarifies that DHS will only consider public benefits received directly by the applicant for the applicant’s own benefit, or where the applicant is a listed beneficiary of the public benefit. DHS will not consider public benefits received on behalf of another as a legal guardian or pursuant to a power of attorney for such a person.

USCIS will exercise its discretionary authority, in limited circumstances, to offer an otherwise inadmissible foreign national the opportunity to post a public charge bond. The final rule sets the minimum bond amount at $8,100; the actual bond amount will be dependent on the individual’s circumstances.

If a foreign national has received any of the public benefits listed above, we urge them to contact our office so that we can advise on the potential impact and the best possible course of action.

Login Consulting Services Inc., a Southern California-based staffing and recruitment company, has paid $58,815 after an investigation by the Department of Labor found the company to be in violation of the H-1B program. Investigators discovered that the company had illegally charged visa fees to the employee, “benched” the worker, and paid another worker below the guaranteed hourly rate established in the Labor Conditions Application they had submitted.

“Employers who wish to hire guest workers must fully familiarize themselves with the H-1B foreign labor certification program. The program is there to help American companies find the highly skilled talent they need when there is a shortage of U.S. workers,” said Wage and Hour Division District Director Kimchi Bui, in Los Angeles, California. “The resolution of this case demonstrates our commitment to safeguard American jobs, level the playing field for lawabiding employers, and ensure no one is being paid less than they are legally owed.”

Per the Department of Labor, “U.S. Citizenship and Immigration Services has established an email address dedicated to enable individuals (including both American workers and H-1B workers who suspect they or others may be the victim of H-1B fraud or abuse) to submit tips, alleged violations, and other relevant information about potential H-1B fraud or abuse. Individuals also can report allegations of H-1B violations by submitting Form WH-4 to the Division.”

On Wednesday, July 11, 2019, the U.S. House of Representatives passed the Fairness for High-Skilled Immigrants Act of 2019 with a vote of 365 to 65. The Bill was introduced by Representative Zoe Lofgren, Representative Ken Buck and 112 other House sponsors and seeks to eliminate per-country numerical limitations for employment-based immigrants and to increase the per-country numerical limitation for family-sponsored immigrants from 7% to 15%.

Currently, the wait for an employment-based green card and a family-based green card for non-immediate family members depends on an individual’s country of birth. This has resulted in significant backlogs for countries with higher numbers of employment-based green card applicants, including India and China, and for countries with higher numbers of family-based green card applicants, including the Philippines and Mexico.

Proponents of the Bill believe that reducing the green card backlog will ensure that the U.S. continues to attract the world’s top talent and will allow close relatives of U.S. citizens from oversubscribed countries to emigrate to the U.S. a lot sooner.

Senator Rand Paul introduced the Backlog Elimination, Legal Immigration, and Employment Visa Enhancement (BELIEVE) Act on the same day that the House passed the Fairness for High-Skilled Immigrants Act. Senator Paul’s proposal will, among other things, eliminate the per-country numerical limitations for employment-based immigrants, increase the number of employment-based green cards available each year, and grant spouses and children of E, H, and L visa holders work authorization. Senator Paul’s Act does not contain any family-based immigration provisions.

We will continue to monitor developments and share updates as more information becomes available.

The United States Citizenship and Immigration Services (USCIS) has updated its policy manual regarding services to the public, including general administration of certain immigration benefits, online tools and providing up-to-date information.

Notable updates include revisions to “case specific information,”  “expedited treatment” and “service request procedures.” The American Immigration Lawyers Association (AILA) has issued a 13-page response to the USCIS policy manual update.

In matters involving “case specific information,” the AILA takes issue with some field offices requiring mobile devices to be shut off. These mobile devices often allow access to case specific information. See excerpt from the AILA regarding this matter below.

“USCIS might consider a general policy requiring that all electronic devices be switched to “silent” or “vibrate” when inside a facility and further establish criteria for permissible use of such devices during interviews and appointments, such as accessing case specific information, conducting case related research, and responding to an urgent or emergency situation.” Sec. h paragraph 3.

USCIS currently has vague guidelines regarding “expedited treatment” matters. Section g. of AILA’s response would like USCIS to provide more specifics on scenarios where expedite requests will be granted. Not only would this provide clarity to applicants, but it would also cut down on requests, which in turn would save USCIS a lot of manpower in sifting through inordinate amounts of non-qualifying expedite requests.

In regard to matters involving “service request procedures,” the AILA document provides requests to improve and expedite services provided by USCIS.

Graham Adair will continue to provide updates if and when additional changes are made.

The United States Citizenship and Immigration Services (USCIS) will administer a nationwide policy to decrease discrepancies in Form N-400 (Application for Naturalization) and Form I-485 (application to register for permanent residency or adjust immigrant status) processing times based on immigrant location.

USCIS has experienced an increase in processing times since the end of 2015, due to a large increase in forms during 2016 and 2017. Both years were projected to see a decrease in forms, however 2017 receipts were up 15.6% from 2016, and 2016 receipts were up 25.5% from 2015. The increased filings didn’t affect field offices equally, thus resulting in processing time discrepancies between field offices.

As a matter of reference, Nebraska Service Center Form I-485 processing times are 10-13 months compared to 15.5 to 49.5 months at the Texas Service Center. Most of the I-485’s are adjudicated in these two regional centers. The first number in both ranges is the median time it takes to complete cases and the second number is the time it takes to complete 93% of cases.

As caseloads are being shifted between field offices to reduce processing times, the USCIS could schedule applicants to appear for interviews at field offices outside of their usual jurisdiction. Applicants could also receive an interview appointment notice or other notices, such as Request for Evidence, from a field office out of their usual jurisdiction. These changes to caseload won’t affect where the applicants attend their biometrics appointments. USCIS will still direct applicants to the nearest application support center, and they should follow the instructions on any notices they receive from USCIS.

The government has revoked the H-1B visas of several skilled foreign workers after an incident involving Virginia-based health care staffing company Comtrix Solutions Inc. The staffing company was set to place the skilled foreign workers in American companies at the time of application but, after six months of waiting, the staffing company clients had to move on to hire other employees, and the foreign workers were left without employment. The government subsequently accused Comtrix Solutions of fraud and revoked the H-1B visas.

This round of revocations is part of U.S. Citizenship and Immigration Services’ (USCIS) recent crackdown on the use of H-1B visas, as revocations have almost doubled from 7.4% of all petitions in 2017 to 15.5% in 2018. In April, employers submitted 201,011 petitions for 85,000 H-1B visas available starting in October.

President Trump’s “Buy American and Hire American” 2017 executive order has led to an increase in H-1B investigations and stricter employer policies. As of late, the crackdown has specifically targeted consulting companies.

Additionally, a new policy was rolled out in February of 2018 requiring employers to provide additional documentation, including every contract and work site the worker will be working at, for the entire duration of the H-1B visa.

Attorney Jonathan Wasden has filed a lawsuit disputing the fraud charge against Comtrix Solutions, asserting the situation would only be fraud if the company knew the worker placements were knowingly false at the time the petitions were filed. This case will play an important role in the future of H-1B visas and potential revocations.

The federal government expects to publish a rule this month that will remove the authorization to work from around 100,000 spouses of H-1B visa holders. Husbands and wives of H-1B visa holders have been allowed to work since 2015.

First proposed by Homeland Security in 2017, the rule has been repeatedly delayed. The White House’s Office of Information and Regulatory Affairs has yet to issue approval of the rule, but has until June 20 to review it. Publication of the rule triggers a public-comment period, which can last from a typical 30-60 days to upwards of 180 days.

News outlets that have spoken with H-4 holders have expressed uncertainty as to whether they will remain in the U.S. or leave, along with their families. In addition to public opinion, the rule may face legal challenges, as pushback can be expected from the many companies that benefit from the H-1B program and face the loss of top talent.

We will continue to monitor updates of this development.

In light of Brexit, the EU has rolled out and approved an immigration-friendly draft law that allows UK nationals to travel to the EU without the need for a visa. The EU approved the draft law on April 04, 2019 in the midst of Brexit discussions. The approved draft law exempts UK nationals from needing a visa to enter the EU for short visits for up to ninety days, in any 180-day period, for business, tourism or to visit relatives or friends. The law does not, however, provide work authorization nor does it permit stays in the EU for longer than 90-days.

This law adds the UK to the list of countries whose nationals are exempted from needing to apply for a short-term visa. Looking into the future, after January 01, 2021, UK nationals will need to apply for ETIAS travel authorization before traveling to the EU. This law will take effect once the UK leaves the EU and is dependent on reciprocity, thus, if the UK requires EU nationals to apply for a visa, then the EU will reintroduce visa requirements for nationals of the UK seeking entry into the EU.

The application of the draft law extends to all EU member states, except Ireland, and extends to the non-EU Schengen countries, Iceland, Liechtenstein, Switzerland, and Norway. UK and Ireland nationals will continue to benefit from the 1949 Ireland Act which provides visa-free travel to Ireland and the UK, even if the UK leaves the EU with or without a deal.

We will continue to monitor updates of this development to determine whether the draft legislation will be formally adopted and published in the Official Journal of the EU.

Effective June 17, 2019, nationals from the following countries no longer require a visa to enter Brazil for business, tourism, artistic, sporting activities, and activities that are deemed to be in the national interest, for up to 90 days: USA, Australia, Canada, and Japan. Any national from these aforementioned countries will still require a visa up until the exemption takes effect.

PLEASE NOTE: The activities allowed under the visa exemption are very limited. The exempted nationals can only attend business meetings, conferences, and to visit clients, potential buyers, or customers. The exemption does not cover training, technical assistance, transfer of technology, installation, repairs, etc. Violations can result in detainment, deportation, and a significant fine. Please contact our office so that our attorneys may analyze and discuss whether your travels will fall under the exemption.

Summary

The United Kingdom is set to leave the European Union on March 29, 2019. Discussions between the UK and EU surrounding the withdrawal agreement have been unclear as to how the UK will exit the EU. Nonetheless, immigration policy continues to change and develop amidst Brexit discussions. This update reviews the current Brexit status and the development of new Immigration Rules that the Home Office published on March 7, 2019. Additionally, this newsletter highlights the impact of a no-deal Brexit withdrawal agreement on UK citizens living in certain EU member states, and equally, the impact of a no-deal Brexit withdrawal agreement on EU citizens living in the UK.

Brexit Update

The UK Parliament has voted against a withdrawal agreement on two occasions: January 15, 2019 and March 12, 2019. Most recently, the UK Parliament voted against proceeding with a no-deal Brexit, and in favor of extending the Brexit process. Currently, Prime Minister Theresa May is requesting the EU to postpone Brexit and will soon travel to the EU summit in Brussels to discuss options for the postponement. However, all 27 EU member states must agree to any proposed postponement. As it stands, the UK will leave the EU on March 29, 2019 with or without a deal, unless a postponement is agreed.

Home Office Immigration 

On March 7, 2019, the UK Home Office published a policy paper through which new immigration rules under HC 1919 took effect. Employers need to ensure that the proposed salary for jobs for which a Certificate of Sponsorship is assigned from March 30, 2019 and beyond meet the updated rates outlined below. Additionally, the new rates must also be met for indefinite leave to remain applications. HC1919 amends Tier 2 in the following ways:

Tier 2

• Salary rate updates in Appendix J: the new rates apply where the Certificate of Sponsorship is assigned on or after March 30, 2019;
• Wage inflation: minimum earning threshold will be £38,000 for indefinite leave to remain applications made from April 6, 2023 and £40,100 from April 6, 2024;
• Tier 2 General Cap Scoring – The current salary bands will be replaced. From March 30, 2019, one point will be scored for each extra £1,000 of gross salary. The amount will increase the number of applications that may be awarded monthly;
• Exemption Extensions: For nurses, medical radiographers, paramedics, and secondary school teachers in mathematics, physics, chemistry, computer science and mandarin, the exemption from the £30,000 minimum salary threshold will be extended until the introduction of the post-Brexit immigration scheme.

Additional Notable Changes

• New Categories: The Home Office introduced new Start-up and Innovator categories replacing the Tier 1 Entrepreneur, and Graduate Entrepreneur, categories from March 29, 2019;
• Tier 1 Investor: Tier 1 Investor application requirements will be stricter from March 29, 2019;
• Fees: Super Priority Service will increase from £610 to £800 per person.

Brexit With A Withdrawal Agreement

For EU nationals and their family members living in the UK today, this piece is largely irrelevant as they will have the opportunity to take advantage of a streamlined approach for remaining and working in the UK post-Brexit. However, if you are not within that category, the following may be informative. The Withdrawal Agreement, as it stands and if ratified, generally provides:

• A transition period for all UK and EU nationals, and their dependents, whereby the current status would remain the same in order to take the necessary steps to ensure their work and residence status complies with Brexit (the transition period would end on December 31, 2020);
• Arrangements for all citizens across EU member states and the UK will be similar with minor procedural or administrative differences;
• All EU citizens residing in the UK before the transition period ends will need to register through the EU settlement scheme prior to June 30, 2021 (dependents with a relationship, pre-dating the end of the transition period, with the qualifying individual may join them at a future date);
• UK nationals residing in an EU member state, before the end of the transition period, will likely be able to remain and work in the EU state provided that they register according to the uniform EU registration scheme.

Brexit Without A Withdrawal Agreement

A no-deal Brexit means that each EU member state would set its own arrangement and policy for UK citizens seeking to travel and/or work in that country, which could be significantly different among member states, following Brexit. Generally, UK nationals wishing to enter EU member states will immediately be classified as third-country nationals. Certain countries have already released contingency plans in anticipation of a no-deal Brexit, and we have identified trends among the proposals, such as, ‘grace periods’ which would allow individuals and employers to make necessary arrangements according to that member state’s registration scheme. However, grace periods and registration schemes will vary among member states, resulting in immigration inconsistencies across all EU member states.

We have summarized certain EU member state contingent positions below. EU member states have released only partial plans and decrees which must still be adopted into law. Please note that this information is tentative and subject to change:

Belgium

Belgium’s contingency plans for the treatment of UK nationals in Belgium after March 29, 2019 generally provides:

• A grace period between March 30, 2019 and December 31, 2020 which would allow for UK nationals and their dependents residing in Belgium on March 29, 2019 to keep their current residence and work status as EU nationals;
• Work rights are expected to be granted, but there are no published contingency plans;
• UK nationals wishing to reside and work in Belgium post-Brexit would be subject to a regime based on reciprocity with the UK.

Finland

Finland’s contingency plans for the treatment of UK nationals in Finland after March 29, 2019 generally provides:

• UK nationals who have registered their right of residence and are residing in Finland by March, 29, 2019 will have continued rights to remain and reside without additional measures for a certain grace period.

France

France’s contingency plans for the treatment of UK nationals in France after March 29, 2019 generally provides:

• A grace period between three to twelve months for UK nationals to apply for a residence permit;
• UK nationals residing in France for more than five years on March 29, 2019 will need to apply for a long-term residence permit;
• UK nationals residing in France for less than five years by March 29, 2019 will have the opportunity to apply for different statuses depending on their purpose of stay in France;
• UK nationals who do not qualify for a status will be eligible for visitor status, but no work status, provided they have the means and are covered by medical insurance.

Germany

Germany’s contingency plans for the treatment of UK nationals in Germany after March 29, 2019 generally provides:

• UK nationals must hold a certain immigration status to continue residing/working in Germany;
• Germany will waive the need for UK nationals living in Germany to hold a permit between March 30, 2019 and June 30, 2019;
• UK nationals will retain the right to reside and work in Germany provided that their immigration application is timely filed and pending.

Netherlands

Netherlands’ contingency plans for the treatment of UK nationals in the Netherlands after March 29, 2019 generally provides:

• A fifteen-month grace period for UK nationals residing in the Netherlands by March 29, 2019 to apply for a residence permit with the Immigration and Naturalization Service;
• UK nationals residing in the Netherlands for five years or more are eligible to apply for a permanent residence permit under the same requirements as for EU nationals;
• UK nationals residing in the Netherlands for less than five years will be eligible to apply for a temporary residence permit under the same requirements as for EU nationals residing in the Netherlands for longer than three months;
• UK nationals wishing to work and reside in the Netherlands post-Brexit would be required to apply for residence and work authorization, however, no entry permit would be required (an application for residency can be submitted after arrival).

Spain

Spain’s contingency plans for the treatment of UK nationals in Spain after March 29, 2019 generally provides:

• A transitional period where UK nationals will be provided the opportunity to maintain their residence and work rights in Spain with their current registration certificates and ID cards;
• UK nationals and their dependents in Spain by March 29, 2019 may request a definitive residence document and will be issued a Foreigner Identity Card which will provide work and residence status through a work permit;
• Spain seeks to safeguard certain social rights, such as, social security, healthcare, and studies, among others.

Switzerland

Switzerland’s contingency plans for the treatment of UK nationals in Switzerland after March 29, 2019 generally provides:

• A quota amounting to 3,500 permits for UK nationals on local Swiss employment contracts seeking to enter Switzerland between March 30, 2019 and December 31, 2019;
• The total quota would be divided between long-term and short-term work permits released on a quarterly basis.

Preparing Your Company

Companies are encouraged to work with Graham Adair professionals to prepare appropriate strategies for EEA employees. We recommend that companies closely monitor their European workforce and update Graham Adair in the event of any employee/employer changes. EEA nationals in the UK should apply for residency now to take advantage of streamlined processes for updating their current permanent residency document to a new residency document after the end of the transition period.