Immigration Articles

Sexual Orientation as a Social Group

Introduction Since the early 1990’s, LGBTQ has been recognized as a legitimate social group eligible for asylum protection under the Immigration and Nationality Act. Therefore, in the face of persecution, an applicant may qualify for asylum or refugee status, provided they are able to establish that the persecution suffered or feared was or will be motivated as a result of his or her actual or perceived status as a member of the LGBTQ social group. This article provides information on the factors considered when determining whether or not an applicant qualifies for asylum. Defining Membership of the LGBTQ Social Group In order to be considered as a protected class in American asylum law, a connection, or a nexus, must exist between the harm suffered and a protected characteristic for which the asylum applicant has been persecuted.  Nexus analysis first requires consideration of whether the persecutor perceives the applicant to possess a protected characteristic. In other words, is the person or group giving the individual cause to fear persecution doing so because they believe the asylum applicant LGBTQ? In order to establish the cause of persecution, we must identify the characteristics the persecutor perceives. What have they said about the individual in question, or about individuals similar to the applicant? Individuals who possess or are assumed to possess protected characteristics may: Identify as gay or lesbian Be viewed as a sexual minority, regardless of whether the persecutor or society involved distinguishes between sexual orientation, gender, and sex. Be transgender (note that even if a transgender applicant identifies as heterosexual, he or she may be perceived as gay or lesbian) Be “closeted” gays and lesbians Test positive for HIV, regardless of sexual orientation Be viewed as effeminate or masculine but identify as heterosexual Not actually be gay but are thought to be gay by others

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Public Charge Final Rule

UPDATE: As of February 24, 2020, the public charge rule has been implemented nationwide after the Supreme Court stayed the limited state-wide injunction in Illinois against the Department of Homeland Security.  At the same time, the Department of State also began implementing its amended public charge rule, and visa applicants from abroad should prepare Form DS-5540 ahead of their visa interview in case the consular officer requests it.  For more information read the announcement on the Department of State's website.    On January 30, 2020 the USCIS announced that it will resume enforcing the Inadmissibility on Public Charge Grounds Final Rule (“Final Rule”) and begin implementing it on February 24, 2020. Foreign nationals who are applying for visas and green cards from within the United States — through a process known as “Adjustment of Status” — will be subject to the Final Rule starting on February 24, 2020.  For visa applicants who are outside of the country, the Final Rule has not yet been implemented. The Department of State announced in October 2019 to delay enforcement until they first finalized their own information collection form and changes that they would need to make to their policy manual. The Final Rule had originally become effective on October 15, 2019 but was enjoined due to litigation after lawsuits were filed to prevent the Trump Administration’s attempt to enforce the Public Charge rule, which was seen as an effort to expand the government’s ability to deny access to green cards or visas for legal immigrants who would become dependent on public assistance. On January 27, 2020, the U.S. Supreme Court lifted the injunction and allowed the Final Rule to go forward, with exception to the State of Illinois, where the Final Rule remains enjoined. This article offers information concerning the Final Public Charge Rule, what factors will be taken into consideration, and which individuals are likely to be affected by the change. Background on the Public Charge Rule Who is subject to the public charge inadmissibility ground? Unless specifically exempted by Congress, all foreign individuals seeking immigrant or nonimmigrant visas abroad are subject to the public charge inadmissibility ground, as are individuals seeking admission to the United States on immigrant or nonimmigrant visas, and individuals seeking to adjust their status. In certain cases, even lawful permanent residents returning from a trip abroad will be subject to inadmissibility determinations, depending on the circumstances. Immigrants who have been exempted by Congress from the public charge ground of inadmissibility include refugees, asylees, and Afghans and Iraqis with special immigrant visas. For a general overview and developments in this area read our previous articles here.

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New H-1B Registration Process and Practical Tips

It is no secret that the H-1B application process has undergone a number of changes over the last year, including a switch to a fully electronic registration, paying a registration fee, and changes to the lottery system. This article gives an update of what we know up to this point as well as tips for applying as successfully as possible. For a basic overview of the H-1B visa please read our previous article. Registration Process Registration for the H-1B is now submitted electronically via the USCIS portal (https://myaccount.uscis.gov/users/sign_up).  An attorney may register on behalf of an employer and should be able to manage one or more clients under that account. To register, an employer must pay a $10 registration fee at http://www.pay.gov using a debit or credit card. An employer may batch payments if they prefer to do so. Once submitted, a confirmation will appear in the portal to show that the registration is being processed. The Lottery This year, the lottery is being conducted in reverse order in an attempt to increase the number of United States master’s degree holders obtaining an H-1B visa. While historically, a lottery was first conducted for U.S. master’s degree holders, and those who were not selected were put into the larger “pool” of applicants, this year all applicants will be put into the pool, and any U.S. master’s degree holders who are not selected in the first round will be put into the pool of 20,000 slots geared specifically toward them. If an employee is selected, a notification of acceptance will appear in the portal, along with a notice of confirmation that must be printed and submitted with USCIS H-1B petition filing. The USCIS have said they will create a wait list for those who are not picked, so even after the lottery is conducted, employers should continue checking the portal. In the unlikely event that USCIS does not receive enough applicants, they will reopen registration. At this time, we do not know whether an employer will be notified if their employee has not been selected. The USCIS will provide training and guidance on how to use the registration system for those who would like it.

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Understanding the Visa Bulletin

Introduction United States employment and family-based permanent visas, green cards, are limited each year by number and by country of origin. In 2019, there will be no more than 226,000 family-sponsored visas and no more than 140,000 employment-based visas. The United States further limits employment and family-based immigration by only allowing 7% of visa to originate from one country. This is not a quota and the United States is not required to admit a specified number of foreign nationals from one country, but rather a ceiling and the United States cannot admit more than 7% of the total visas issued to foreign nationals from one country. In 2019, approximately 25,620 visas are equivalent to 7%. The system creates a backlog and visas are awarded on a first come, first serve basis.  To address the backlog, the Department of State and the USCIS created a complex system of priority dates. When a priority date is current, a foreign national may apply for permanent residence. Current means that a foreign national’s individual priority date would be on or before the date published in the monthly Visa Bulletin. Paying close attention to the priority dates is important for establishing permanent residency under the employment or family visa categories.

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The North American Free Trade Agreement (TN) Visa

The North American Free Trade Agreement (NAFTA) integrated key sectors of the United States, Canadian, and Mexican economies.  Central to that integration was creating a special visa category that allowed qualified Mexican and Canadian citizens to seek temporary admission into the United States to engage in business activities. To qualify for a TN visa a foreign national must meet five criteria: (1) A citizen of Canada or Mexico, which is commonly demonstrated by a birth certificate or passport; (2) Employed in a profession that qualifies under the regulations, the eligible professions are listed in Appendix 1603.D.1 of NAFTA; (3) The position in the United States must require a NAFTA professional; (4) Prearranged full-time or part-time job with a U.S. employer and (5) The foreign national must have the qualifications to practice in the profession in question. Generally, Canadian nationals are not required to obtain a visa prior to entering the United States, however, Mexican nationals are required to obtain a visa prior to entering the United States. Consequently, Canadian and Mexican nationals have different TN NAFTA visa requirements.

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Public Charge Updates in 2019

One of the key inquiries made by the United States Citizen and Immigration Services (USCIS) when deciding to grant or deny a nonimmigrant visa or permanent residency is whether an applicant will likely be or become a public charge. A public charge is an individual that will heavily rely on the federal government for assistance. For the purposes of this article, we will focus on public charge analysis as applicable to an applicant for U.S. permanent residency. An applicant has the duty to show that he or she will not be a public charge by demonstrating he or she has and will have sufficient income or financial support if granted permanent residency in the United States. When determining if an applicant is or is likely to become a public charge the USCIS considers the applicant’s age, health, family status, assets, resources, financial status, education, and skills.  Furthermore, applicants are required to submit an affidavit of support from family members or friends pledging financial support to the applicant in the case of financial hardship. The USCIS looks at all the documentation submitted by the applicant in its entirety and either grants or denies permanent residency, or a change in visa status, based on a totality of the circumstance’s analysis. Traditionally, not all government services and assistance have been considered in the public charge analysis.  Recently, the Department of Homeland Security (DHS) proposed a change to current rules that would affect what services and support the USCIS would consider when evaluating whether an applicant is or would likely become a public charge. Proposed rule changes do not have the force of law until the rules are finalized, therefore, current permanent residency applicants should not change the services they are currently receiving or refuse the use of government services based on any proposed changes. Current Public Charge Service Currently, the USCIS only considers a permanent resident applicant a public charge if the applicant is receiving or is likely to receive a public benefit from the Federal Government. Traditionally, a public benefit was limited in definition to the receipt of cash. Examples of cash services included Temporary Assistance for Needy Families, Supplemental Security Income (also known as social security), or long-term care facilities sponsored by the federal government. Traditionally, these programs are directly funded by federal income tax dollars and the USCIS has denied permanent resident status to immigrants that would increase the burden on social systems that are already financially struggling.  The USCIS may deny an applicant even if an applicant has not previously used public benefits, if the USCIS determines that the applicant is likely to rely on public benefits in the future. Proposed Changes The proposed changes are inspired by the Trump Administration’s policies to protect American Workers and American Wages. In the proposed changes, the DHS stated that the DHS seeks to increase self-sufficiency and more clearly define when a permanent resident has received a public benefit. The proposed changes would consider the use or the likely need of noncash support. Examples of noncash benefits include the Supplemental Nutrition Assistance Program (SNAP, formerly called food stamps), Housing Choice Voucher (formerly called section 8), Medicaid, and Medicare Part D. The DHS stated that if a foreign national is unable to provide themselves with food, shelter, and medical care, then the foreign national is not self-sufficient and will likely require assistance, now or in the future, from the state. Further, the DHS proposed rule clarifies when the use of noncash support would lead to a determination that the applicant was a public charge. First, if the noncash benefit can be monetized, then the value of the benefit may not exceed 15% of the Federal Poverty Guidelines (FPG) for a household of one within a period of 12 consecutive months based on the per-month FPG for the months during which the benefits are received. For example, the USCIS could determine the monetary value of a housing voucher and the voucher must not exceed 15% of the FPG for a single person household. If the voucher exceeded 15%, then the USCIS would find the applicant to be a public charge. Second, if the noncash benefit cannot be monetized, then the benefit must not be used for more than 12 months within a 36-month period. For example, it may be difficult to determine the exact value of medical care or services received, therefore, the applicant would be found a public charge if he or she received benefits for more than one year in the last three years. Emergency medical services are excluded from the proposed changes.

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H-1B for Computer Programmers

The Immigration and Nationality Act allows an employer to petition for an H-1B visa on behalf of an alien beneficiary if the alien beneficiary will be working in a “specialty occupation.”  To qualify as a “specialty occupation” a job must require "theoretical and practical application of a body of specialized knowledge and attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States." An employer bears the burden of proof to demonstrate that its open position requires specialized knowledge and a bachelor’s degree. Traditionally, USCIS has regarded the Occupational Outlook Handbook (OOH) as the foremost authority on job educational and skill requirements (even in spite of an OOH disclaimer that the publication is not intended for legal usage); however, an employer may submit additional supporting documentation. The evidence, in its totality, must demonstrate that a particular position would normally have a minimum, specialty degree requirement, or its equivalent, for entry. If the USCIS finds the evidence insufficient it will issue a Request for Evidence (RFE) or simply deny the H-1B petition. For several decades employers have faced varying degrees of difficulty in obtaining an H-1B visa for computer programmers and information technology (IT) professionals. Under the Trump Administration, the USCIS has cracked down on computer programmer H-1B visa applications and increased the burden of proof required for a visa to be approved. In 2017 approximately 50,000 less IT related visas were issued than in 2016. Employers should provide additional documentation to support that a computer programmer position meets the H-1B visa qualifications. Additionally, employers may need litigation to obtain a proper ruling.  Why are Computer Programmers in Question?  In 2000, the NSC Director stated that the computer programmer occupation was in “transition,” which means the educational requirements and job duties were changing and establishing a clear line on H-1B eligibility was difficult.  Despite almost two decades having passed, the computer programmer occupation is still considered to be in “transition.” The OOH states most computer programmers have a bachelor’s degree, but some employer’s hire computer programmers with an associate’s degree or no college education. Furthermore, most computer programmers have a bachelor’s degree in a computer-related field. The level of difficulty associated with the job duties are often reflected by employer’s requiring a higher level of education. For example, a computer programmer that enters code may not be required to hold a bachelor’s degree, but a computer programmer that analyzes and repairs code may.

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Matter of A-B- and Women Facing Domestic Violence

Introduction In June 2018, former Attorney General Jeff Sessions overturned an immigration court’s decision and issued a precedential decision that makes it even more difficult for  asylum seekers to obtain asylum protection in the United States by citing fear of domestic abuse. This is also the case for asylum seekers who make asylum claims based on their fear of gang violence. The Attorney General has authority over all immigration courts and delivered a speech, which was followed by a USCIS memo, that outlined when USCIS officers should use their discretion in asylum cases. If a foreign national is being persecuted because of his or her race, religion, nationality, membership in a particular social group, or political opinion, then he or she may apply for asylum. An applicant can apply for asylum without having to pay a government filing fee, but the process can take months or even years.  As a result, foreign nationals can enter the United States illegally and remain in the United States while their asylum case is pending.  This “loophole” in the immigration system has often been a criticism of the Trump Administration. Immigration officers and judges often struggle with defining “membership in a particular social group” and the definition as changed over time.  An Obama-era precedent granted asylum to a woman based on her membership to a group that feared returning home due to domestic violence. Asylum is becoming increasingly difficult to obtain (see USCIS and immigration court statistics), and now Mr. Sessions believes the Obama-era interpretation defines membership in a particular social group too broadly and misconstrues the proper legal application. The Attorney General’s intervention is not uncommon and his predecessors as far back as the 1990s “have weighed in on the use of the particular social group in asylum cases.” While not unprecedented, the intervention does make it much more difficult for individuals in this context to obtain asylum due to persecution from private actors.

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