Gerald LeMelleBy Gerald LeMelle

LeMelle is a partner and Immigration lead at Dunlap Bennett & Ludwig

[02.26.2019 Leesburg / Tysons]  Change is all around as we dive into the new decade.  Immigration law is no exception.  Changes to process, laws, and rules all ring in the new decade of immigration law.  Here we list some significant changes to Immigration law already this year that you should know if you are thinking about filing for a visa or planning to immigrate to the United States.

  1. Changes to EB-5 Petition Inventory

On January 29th, 2020, USCIS announced a change in how they will be handling EB-5 petition inventory in the future.  USCIS is confirming that after March 31st, 2020, they will not be using a “First-in, First-out” basis for processing EB-5 petitions but rather a Visa Availability approach. The new visa availability approach simply gives priority to petitions where visas are immediately available, or soon available, and will not create legally binding rights or change substantive requirements. Applicants from countries where visas are immediately available will now be better able to use their annual per-country allocation of EB-5 visas. The new visa availability approach will apply to petitions pending as of the effective date of the change.

  1. Inadmissibility on Public Charge Grounds

USCIS will implement its new rule on the Inadmissibility on Public Charge Grounds on Feb. 24, 2020, except in Illinois, where the rule remains enjoined. The rule requires an immigration officer to decide whether an applicant for a green card or a visa, is likely to become dependent on certain government benefits in the future, which would make them a “public charge.” The new rule identifies health, housing, and nutrition programs, including federally funded Medicaid, SNAP benefits (formerly known as food stamps), and Section 8 housing benefits. Being a public charge a reason that a person could be denied a green card, visa, or admission into the United States. Until now, the use of most public benefits was not a barrier to legal status in the United States

Keep in mind however that the new rule is not a blanket. It directs immigration officers to consider several factors related to an immigrant’s economic situation, education, and health.

Also, the new rule does not apply to all immigrants. Exempt from the public charge ground of inadmissibility, even if they might be applying for status or a green card, U visa holders, T visa holders, asylees, refugees, and those with Special Immigrant Status any more categories are exempt. Public charge laws do not apply in the naturalization process, through which lawful permanent residents apply to become U.S. citizens.

  1. USCIS Updates Process for Accepting Petitions for Relatives Abroad

U.S. Citizenship and Immigration Services (USCIS) announced that Form I-130, Petition for Alien Relative, will only be processed domestically by USCIS or internationally by the Department of State (DOS) in certain circumstances beginning February 1, 2020.

DOS will assume responsibility for certain services previously provided at USCIS international offices, services that DOS already provides in countries where USCIS does not have a presence. Eligible active-duty service members assigned overseas will file their Forms I-130 locally with DOS, as will certain non-military petitioners who meet specific criteria for consular processing.

Generally, DOS will process a Form I-130 locally if the petition falls under blanket authorization criteria, as defined by USCIS

Temporary blanket authorizations for instances of prolonged or severe civil strife or a natural disaster; or

Blanket authorization for U.S. service members assigned to military bases abroad.

In addition to these blanket authorizations, DOS maintains discretion to accept Form I-130 if a U.S. citizen petitioner meets the “exceptional circumstance” criteria outlined in the USCIS Policy Manual.

All other petitioners residing overseas must file Form I-130 online or by mail through the USCIS Dallas Lockbox facility for domestic processing.

  1. Policy changes the way officials calculate the accrual of unlawful presence

A federal judge in North Carolina issued a permanent nationwide injunction against a proposed new policy that would have changed the way officials calculated the accrual of unlawful presence. Under the policy shift, immigration officials would have started the clock sooner on some individuals, creating potential roadblocks if they sought certain forms of relief in court. Ultimately, some foreigners who might have had options to stay in the U.S. under the prior policy could have faced deportation. Several American college presidents sued over the change, arguing that it would unfairly penalize students, scholars, and others who sometimes lose their legal status when switching schools or for other reasons. The ruling also means that must first receive notice from USCIS and an opportunity to explain an accidental violation before a decision on penalties is made.

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Posted in: Immigration