Trump USCIS Makes Changes to EB-5 Visa Petition Processing Management
On January 29, 2019, United States Citizenship and Immigration Services (USCIS) announced a process change for Form I-526, Immigrant Petition by Alien Investor, going from a first-in, first-out basis to a visa availability approach.
USCIS justified this change, stating the new approach is similar to other visa-availability agency adjudications processes, is more congruent with the congressional intent of the EB-5 program, and increases fairness in the program’s administration. USCIS Deputy Director Mark Koumans stated, “This new approach increases fairness, allowing qualified EB-5 petitioners form traditionally underrepresented countries to have their petitions approved in a more timely fashion to receive consideration for a visa.” This change aligns with the agency’s processing of Form I-130, Petition for Alien Relative, in cap-subject categories. Since the new visa availability approach prioritizes petitions in which visas are immediately available, applicants who come from countries in which visas are immediately available will be better suited to utilize their annual allocation of EB-5 visas.
USCIS will hold a public engagement on March 13, 2020 from 11:00 a.m. to 12:00 pm Eastern Standard Time in order to answer questions from the public regarding these operational changes. USCIS will implement this visa availability approach beginning March 31, 2020.
For more information, view the announcement from USCIS.
***
USCIS, DHS, and DOS Announce Eligible Countries for H-2A and H-2B Visa Programs
United States Citizenship and Immigration Services (USCIS) along with the Department of Homeland Security (DHS), and the Department of State (DOS) released the list of countries the nationals of which are eligible for participation in the H-2A and H-2B visa programs in 2020. The list of countries which were designated as eligible in 2019 remained unchanged, with DHS maintaining its authority to add or remove any country in the event that DHS and DOS come to the conclusion that a country has failed to meet the requirements for continued designation. Factors which could result in the exclusion or removal of a country from the list include but are not limited to fraud, abuse, denial rates, overstay rates, human trafficking concerns, and other forms of noncompliance with the terms and conditions of the H-2 visa programs by nationals of that country.
The H-2A and H-2B visa programs permit United States employers to bring foreign nationals to the United States in order to fill temporary agricultural and nonagricultural positions, respectively. Generally, USCIS will only approve H-2A and H-2B petitions for nationals of countries which have been designated as eligible for participation in the program by the secretary of Homeland Security. It is possible, however, for USCIS to approve H-2A and H-2B petitions for nationals of countries not included on the list, including petitions which were pending as of the date of the Federal Register notice. These determinations are made on a case-by-case basis only if it is determined that doing so would be in the best interest of the United States.
As of January 19, 2020, nationals of the following countries are eligible to receive H-2A and H-2B visas:
| Andorra | Finland | Malta | Serbia |
| Argentina | France | Moldova* | Singapore |
| Australia | Germany | Mozambique | Slovakia |
| Austria | Greece | Mexico | Slovenia |
| Barbados | Grenada | Monaco | Solomon Islands |
| Belgium | Guatemala | Mongolia | South Africa |
| Brazil | Honduras | Montenegro | South Korea |
| Brunei | Hungary | Nauru | Spain |
| Bulgaria | Iceland | The Netherlands | St. Vincent and the Grenadines |
| Canada | Ireland | Nicaragua | Sweden |
| Chile | Israel | New Zealand | Switzerland |
| Colombia | Italy | Norway | Taiwan** |
| Costa Rica | Jamaica | Panama | Thailand |
| Croatia | Japan | Paraguay* | Timor-Leste |
| Czech Republic | Kiribati | Papua New Guinea | Tonga |
| Denmark | Latvia | Peru | Turkey |
| Dominican Republic* | Liechtenstein | Poland | Tuvalu |
| Ecuador | Lithuania | Portugal | Ukraine |
| El Salvador | Luxembourg | Romania | United Kingdom |
| Estonia | North Macedonia | Samoa | Uruguay |
| Fiji | Madagascar | San Marino | Vanuatu |
*Moldova, Paraguay, and the Dominican Republic are eligible to participate in the H-2A program, but they are not eligible to participate in the H-2B program.
**Regarding all references to “country” or “countries” in this document, it should be noted that the Taiwan Relations Act of 1979, Pub. L. No. 96-8, Section 4(b)(1), provides that “[w]henever the laws of the United States refer or relate to foreign countries, nations, states, governments, or similar entities, such terms shall include and such laws shall apply with respect to Taiwan.” 22 U.S.C. § 3303(b)(1). Accordingly, all references to “country” or “countries” in the regulations governing whether nationals of a country are eligible for H-2 program participation, 8 CFR 214.2(h)(5)(i)(F)(1)(i) and 8 CFR 214.2(h)(6)(i)(E)(1), are read to include Taiwan. This is consistent with the United States’ one-China policy, under which the United States has maintained unofficial relations with Taiwan since 1979.
This notice does not affect the status of H-2 beneficiaries currently in the United States, unless they apply for an extension of status. It does apply to nonimmigrants changing status in the U.S. to H-2A or B. Each country’s designation is valid, unless it is removed for failure to meet the requirements for continued designation, from January 19, 2020 to January 18, 2021.
For more information, view the USCIS announcement.
***
Trump Travel Ban Affects United States Citizens Instead of Foreign Countries, Experts Say
Similar to tariffs effectively serving as taxes on Americans purchasing foreign-produced goods, “travel bans” effectively serve as barriers against United States citizens living in America with foreign-born individuals about whom they care deeply, such as spouses or children. This perspective is imperative after the recent announcement that the Trump administration plans on expanding upon its 2017 proclamation prohibiting, with limited waivers, nationals of five majority-Muslim countries from visiting or immigrating to the U.S. This expansion entails adding seven countries to this travel ban list. These countries are Belarus, Eritrea, Kyrgyzstan, Myanmar, Nigeria, Sudan, and Tanzania.
George Mason economics professor Donald J. Boudreaux, in a recent letter to the Wall Street Journal, called for the Trump administration to name its policy in accordance with its actual consequences suggesting, “change your policy to always refer to tariffs as being imposed on people rather than on goods and services. Automobiles, sugar, and other imports – being inanimate – pay nothing. Tariffs are paid only by people, and especially by citizens of the government that imposes them.”
This line of thinking can be extended to Trump’s immigration policies. While the policy is imposed upon a country, it is individuals from those countries as well as their relatives who are affected by the policy. ABIL attorney William Stock presented a case study in which his client, not his wife’s country of origin, was similarly affected by Trump’s travel ban. “He has been working with his employer to be transferred to the firm’s Canadian office because his wife, an Iranian healthcare provider, was denied the green card he sponsored her for because of the travel ban. America is losing two highly successful people – one an American – because of this policy.”
The travel ban has had a direct impact on the number of Immediate Relatives of U.S. citizens, the spouses, children, and parents of Americans, who have received permanent residence in America from the affected countries. Between FY 2016 and FY 2018, the number of Immediate Relatives of U.S. citizens fell from Yemen by 85%. Iran dropped 45%, Libya dropped 49%, Somalia fell 57%, and Syria fell 53% over the same span.
Similarly, between FY 2016 and FY 2018, the number of immigrants in family sponsored categories from Yemen dropped by 91%. Over the same span, Iran fell 72%, Libya dropped 35%, Somalia fell 37%, and Syria decreased 62%.
For more information, view the full article from Forbes.
***
USCIS Announces Updates to Biometrics Collection Policy Guidelines
On January 30, 2020, United States Citizenship and Immigration Services (USCIS) released an update to its policy manual with regard to mobile biometrics services and fingerprint waivers. In order to verify identity, produce secure documents, and conduct criminal and national security background checks, USCIS collects and utilizes biometric data. While this biometric data is usually collected by appointment at an applicant support center (ASC), in some cases, USCIS may make specific arrangements for individuals who are unable to attend scheduled appointments in person, due to disability or other health reasons.
Specified in the update is USCIS’ unwillingness to provide mobile biometrics services for individuals who are in prison or jail, or who are unable to hold the ASC appointment due to incarceration or detention. USCIS notes in the update that this is not applicable to individuals held in DHS custody, for whom U.S. Immigration and Customs Enforcement (ICE) will continue to collect biometrics.
With regards to fingerprint waivers, USCIS’ updated guidance also clarifies that an approved fingerprint waiver is exclusively connected to the specific petition, request, or application listed on notice of the appointment for submission of biometrics at the ASC, so individuals are unable to use an approved waiver for any future filings or biometric requirement. These waivers are granted only if an individual cannot provide fingerprints due to a medical condition and can only be granted by specific USCIS employees.
For more information, view the announcement from USCIS.
***
USCIS Announces Update to Process for Accepting Petitions for Relatives
United States Citizenship and Immigration Services (USCIS) announced that beginning February 1, 2020, the processing of Form I-130, Petition for Alien Relative will exclusively be domestically by USCIS or internationally by the Department of State (DOS). DOS will become responsible for specific services which were previously provided at USCIS international offices and which were already provided by DOS in countries in which USCIS does not have a presence.
Citing an effort for USCIS to “modernize and become more efficient as an agency,” as motivation for this announcement, USCIS Deputy Director Mark Koumans stated that the Department of State’s wider international presence allows it to overtake USCIS’ responsibilities with regards to accepting and adjudicating petitions for immediate relatives abroad in certain circumstances. USCIS will continue to build upon its online filing options, which are available to both international and domestic applicants and petitioners.
The DOS will generally process Form I-130 locally in the event it falls under the following USCIS-defined blanket authorization criteria:
- 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.
Additionally, DOS will accept Form I-130 at its discretion if a U.S. citizen petitioner meets the, “exceptional circumstance” criteria which is outlined in the Policy Manual update. All other petitioners living abroad must file Form I-130 online or by mail through the USCIS Dallas Lockbox facility for domestic processing.
For more information, view the USCIS announcement.
***
USCIS Releases New Version of Form I-9
On January 31, USCIS announced the publication of the Form I-9 Federal Register notice, in which a new version of Form I-9, Employment Eligibility Verification. The new version, which was approved on October 21, 2019, contains a few augmentations to the form and its instructions. Employers are to begin using this updated form as of January 31.
Per the notice, employers will have additional time in order to make necessary updates and adjust their business processes. Employers are permitted to continue using the previous version, Rev. 07/17/2017, through April 30, 2020. After this date, the new form with the 10/21/2019 version date must be used.
Specifically, the following augmentations were made to the Form I-9 and its instructions:
Form:
Revision to the Country of Issuance field in Section 1 and the Issuing Authority field in Section 2, when selecting a foreign passport, to add Eswatini and Macedonia, North to reflect those countries’ recent name changes. This change is visible only when completing the fillable Form I-9 on a computer.
Instructions:
- Clarifications pertaining to who is able to act as an authorized representative on behalf of an employer.
- Update to the USCIS website address.
- Clarifications pertaining to acceptable documents for Form I-9
- Update to the process for requesting paper Forms I-9
- Update to the DHS Privacy Notice.
A revised Spanish version of Form I-9 with the new version date is available for use exclusively in Puerto Rico.
For more information, view the E-Verify press release, and the USCIS I-9 page to access the new Form I-9, and the Spanish version of the new Form I-9.
Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk.