U.S. Judge Blocks Public Charge Rule Against permanent residency Applicants Nationwide

A U.S. District judge in Illinois has completely rejected the Public Charge rule that denies permanent residency to immigrants who might need public assistance in the form of food stamps, and housing benefits at any point in the future. The federal judge, in his ruling has ordered the Trump administration to vacate the policy in its entirety and said the Public Charge rule will not be applied to anyone in the whole of U.S., effective immediately.

Come as good news to all family-based U.S. permanent residency petitioners, IMMIGRATION SERVICES officers nationwide will not be adjudicating US green cards based on the ‘wealth test’ administered on family-based permanent residency applicants and will proceed without applying the public charge standard.

The rule was instated to filter out applicants unable to remain financially self-sufficient without having to depend upon State benefits while in the United States.

Read: What Constitutes The Wealth Test For Permanent residency Applicants

Reasons Why The Public Charge Rule Will Not Be Applicable Anymore

According to the U.S. federal judge in Illinois, the following reasons were cited to strike down the Public Charge rule in its entirety and applicable nationwide:

• The rule violates the Administrative Procedure Act which includes a detailed process for developing and enacting new regulations;
• The ‘wealth test’ is arbitrary and capricious with no basis in its own statue;
• The public charge rule does not consider the “predictable collateral consequences” of its implementation. This was in line with the Coronavirus pandemic, at which point the courts had stayed the execution of this rule;
• The rule is discriminatory against non-white immigrants under the equal protection clause;
• The rule as a whole exceeds the authority of the executive branch.

Related: Why The Courts Had Rescinded The Public Charge Rule Earlier

History Of The Public Charge Rule

• September 2019: This policy was announced 
• February 2020: The Public Charge rule goes live 
• April 2020: The U.S. Supreme Court upholds the rule despite Covid-19 pandemic 
• August 2020: A federal judge rescinds the Public charge rule
• September 2020: DHS resumes implementing wealth test on immigrants
• November 2020: U.S. federal judge vacates the rule in its entirety.

Once the U.S. presidential elections are over today, the decision could be challenged in the highest court in the United States. Stay tuned to this space for the latest updates.

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via Dear ImmigrantDear Immigrant

Higher Wages, Specialty Occupation, Client-Site Placements: New Rules For H1-B Visa Announced

In a continuing effort to stem the import and growth of foreign workers within the US labor market, the US government branches of the Department of Labor (DOL) together with the Department of Homeland Security (DHS) and the United States Citizenship and Immigration Services (IMMIGRATION SERVICES) have released new regulations that will severely impact the H1-B visa program. These include higher, prohibitive wages to be offered by H1-B sponsoring employers, redefining specialty occupation and harder regulations against third-party placements. The US President has signed and passed a Bill towards Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States that is submitted and published in the Office of the Federal Register (OFR) as an Interim Final Rule with no opportunity for public comment.

Increased Wages Effective immediately, the DOL has amended prevailing wage levels determined during the adjudication of the permanent labor certifications and Labor Condition Applications. This means that higher wages will prevail for all occupations levels. A significant increase in wages will mean Level I (beginning level) employees will now have to get Level III (advanced, fully competent) wages to qualify for an H1-B visa. While it might sound great for those beneficiaries who do qualify, employers will have to reclassify job positions and will be deterred from the extra expense. A similar hike is applied to permanent residency applicant's salaries. Employers will be discouraged to pursue permanent residency for its employees, if this is the mandatory salary to be issued. Lastly, for all pending labor condition applications that were filed prior to the effective date, pending prevailing wage requests will be issued using the new wage data.

Specialty Occupation Redefined "Specialty occupation" is defined to have a theoretical and practical application of a body of "highly specialized knowledge," and a bachelor's or higher degree in the specific specialty, or its equivalent, as a minimum for entry into the occupation in the U.S. IMMIGRATION SERVICES has redefined the meaning of specialty occupation to mean there should be a direct connection between the required degree and the responsibilities of the work-role. There should be a specialization (majored in a specific subject) in the coursework as opposed to a 'general' degree in, for example, engineering or an MBA. This can be applied to multiple degrees. IMMIGRATION SERVICES requires that a bachelor's degree in a specific field must always be required to meet the specialty occupation criteria. Related Article: Will Computer Programmers Stop Qualifying For H1-B? As a result of this redefinition, some positions that have previously qualified for an H-1B visa may no longer be eligible. This will negatively impact H1-B visa renewals and extensions.

Client-Site Placements For all employees being placed in third-party sites called client office locations, H1-B petitions will be approved only for one year. IMMIGRATION SERVICES will exercise more scrutiny over the employee/employer relationship to include supervision of the employee, job duties and their benefit to the sponsoring employer. Required documentation includes master services agreements, work orders, client letters and project-related documentation. There will also be increased site visits by IMMIGRATION SERVICES officers to randomly inspect the legitimacy of each foreign worker at a client site. Related Article: How To Be Prepared For A IMMIGRATION SERVICES Officer Visit At Your Client Site

While the wage hike goes into effect immediately, the enforcement of the employer-employee relationship and the redefinition of specialty occupation will be implemented at a later date. If this goes into litigation, it might get delayed; otherwise, all affected parties should consider extensions and amendments wherever applicable.

from Path2USA – Travel Guide for USA via Dear Immigrant

Updated: immigration services Offers Leniency in Responding To Notices – How Will This Affect Your Petition

Update: Similar to the 60-day extension offered for Requests for Evidence and Notices of Intent to Deny, immigration services announced that it would give certain petitioners an additional 60 days to respond to other categories of notices as well. These apply to notices received during a specific window of time, and the 60 days are in addition to the response date mentioned in the notice. Immigration services had already announced a closure of all in-person services at its field offices and Application Service Centers due to the Coronavirus outbreak. Following that, it also began offering flexibility in responding to certain notices. READ: Petition to Extend H1-B 60-Day Grace Period

Which Notices Have the 60-Day Grace Period to Respond

Requests for Evidence (RFE); Notices of Intent to Deny (NOID); Notices of Intent to Revoke (NOIR); Continuations to Request Evidence (N-14); Notices of Intent to Rescind and Notices of Intent to Terminate regional investment centers; and Filing date requirements for Form I-290B, Notice of Appeal or Motion.

How should you respond effectively to an RFE? Here's How RFE Response

What Does This 60-Day Extension Mean?

For applicants and petitioners who received the above notices during the qualifying period, immigration services will accept their responses within 60 calendar days after the response due date set in the request or notice before taking action. The new response deadline will be automatically calculated by adding 60 calendar days to the date mentioned in the immigration services notice. For example, if your notice asks for a response by a certain date, you have an additional 60 calendar days from that date to respond.

Who Is Impacted by This 60-Day Extension?

H1-B, L1-A, L1-B, and H4 EAD visa holders, as well as family-based permanent residency petitioners, are impacted by the RFE category. Visa petitions, work permits, and adjustment of status applicants are also affected. Under NOID, immigrant and non-immigrant visa petitioners are covered. NOIR affects petitioners applying for US naturalization. Continuations to Request Evidence (N-14) apply to EB-5 applicants and H4 EAD workers. Notices of Intent to Rescind and Notices of Intent to Terminate regional investment centers affect their respective applicants. Filing date requirements for Form I-290B affect applicants of Form I-140, Immigrant Petition for Alien Worker, as well as student visa holders.

Important to Know

While immigration services continues to offer flexibility and help minimize the immigration consequences for those seeking immigration benefits during the pandemic, it is important that all petitioners consult their legal immigration counsel when responding to these notices. Despite the flexibility offered, all petitioners and their legal representatives should be prompt in preparing and submitting their responses. The sooner you respond, the faster you receive an adjudication.

Some deadlines might supersede the ones offered by immigration services in their latest announcement. Every respondent should have a legal expert review the notice for fine print to see the exact deadline applicable to each case. In certain circumstances, I-94s and certain work visas could expire before the extended deadlines to respond. It is important to know how to react in these cases.

Is your visitor visa expiring and you are unable to leave the country? Here's a step-by-step guide to extend your US Visa: US Visa Extension Process

The 60-day grace period should not be exploited by applicants. It exists to account for certain difficulties posed by the restrictions of the Coronavirus pandemic. Be prepared to explain any delay in responding if you have to. Immigration services offices restarted in-person services earlier in 2020. Stay tuned to this space to see what other changes immigration services will announce.

Covid-19: Remote Working Norms For H1-B Visa Holders – What You Should Know For FY 2021

As the Covid-19 lockdown continues in the majority of US states, working from home continues to be the norm in most workplaces. This is also true for employers that employ foreign skilled workers. However, foreign workers on non-immigrant visas like H1-B, H4 EAD and L1-A have the additional burden of requiring their worksite location be within the said boundaries of the Labor Condition Application (LCA). Any changes to this could jeopardize their visa status in the US. Related Read: LCAs and PERM Under Scrutiny, Per US President's Executive Order The Department of Labor (DOL) regulates that an H-1B sponsoring employer must submit a certified LCA for the location at which the H-1B employee will be working. Because of the social distancing norms established by individual states, many of these foreign workers are having to work remotely from home. Does this put them out of status?

If You Are Working Remotely On H1-B Visa

The new fiscal year 2021 brings with it several newly received H1-B petitioners who are expected to join work with their employers in the US. However, social distancing norms will make them work remotely from home. As long as their work location is within the same metropolitan statistical area (MSA) as the employee's normal worksite location, they may continue to work under a valid visa status.

Complying With Form I-9 For New H1-B Employees Working Remotely

According to the Department of Homeland Security (DHS), for employers maintaining social distancing due to COVID-19, employees will be exempted from having their identity and employment authorization documents reviewed in the employee's physical presence. This is a requirement associated with Employment Eligibility Verification (Form I-9). However, employers must inspect the Section 2 documents remotely (e.g., over video link, fax or email, etc.), and obtain and retain copies of the documents, within three business days for purposes of completing Section 2.

Steps To Take If The Work Location Is Within The Original Intended Area of Employment

The DOL does not need you to file a new LCA. A copy of the current LCA notice should be posted at the employee's home for ten consecutive business days. This should be done within 30 calendar days after the worker begins work at the new worksite location. Once the LCA is posted for that duration, it must be added to the Public Access File when taken down.

Steps To Take If The Work Location Is Outside The Original Intended Area of Employment

For new H1-B visa holders coming in for the new fiscal year 2021, employers should post either electronically or with a hard copy at the worksite location a notice informing US workers that a foreign worker is joining. If the H-1B employee's worksite location changes or becomes remote, as in the case of the pandemic, a new LCA must be filed with the DOL. Related Read: When Should You File An Amended H1-B Petition

The new LCA should cover the new worksite at which the H-1B workers intend to work, as well as details of why the change was required. In addition, an amended H-1B petition must be filed with immigration services to include the new location. If the remote work location is for under 60 days in a calendar year, the DOL allows an exception and the employer doesn't have to file for a new LCA, as long as the employer is able to show that the H-1B nonimmigrant maintains ties to the home worksite.

immigration services Relaxes Employment Verification For H4 EAD Job Seekers – Here’s The NEW Document List

Non-immigrant workers who have an approved Employment Authorization Document (EAD) can use their approval notice issued during a specific period in lieu of the printed EAD card. The EAD card (Form I-765) is required as proof of employment eligibility before joining work with an employer in the US. Immigration Services made this adjustment to the rule of needing a List C document for Form I-9, Employment Eligibility Verification compliance. This is to allow Immigration Services to catch up with the delays in printing of approved EAD cards that were delayed due to the Coronavirus pandemic.

Read: Delay In Printing Green Cards & EADs

For the past few months, several non-immigrant workers, including spouses of H-1B workers on H4 visas, were unable to seek employment or continue in existing ones due to delays in getting printed work permits, even after getting approval. Going forward, Immigration Services announced that workers can use the approval notice (Form I-797) for the Employment Authorization Document (Form I-765) as proof of employment eligibility.

What You Should Know About The Form I-9 Employment Verification

The Form I-797 Notice of Action as proof of employment authorization under List C is also applicable to current employees who require re-verification. All H4 EAD employees who presented the Form I-797 Notice of Action as a List C document will have to submit new evidence of employment authorization from either List A or List C. By the applicable deadline, employers must re-verify these employees and seek a copy of the EAD card once the employee receives it.

Immigration Services has now released a new, updated Form I-765. For EAD applications postmarked after the updated form's release date, Immigration Services will only accept the new version. This includes Form I-765 WS. Immigration Services continues to accept the previous version if submitted before that cutoff date.

Immigration Services Steps Up During The Pandemic

Offers leniency for the submission and response of some notices

Immigration Services Accepts Delayed Responses

Updated Document List For H4 EAD Employment Verification

While the Department of Homeland Security will now accept the EAD approval notice as evidence of employment authorization for Form I-9 compliance, the following list of documents also have to be submitted when an H4 EAD visa holder is seeking employment:

List A: Document establishing both Evidence of Identity & Employment Authorization

US Passport Permanent resident card EAD Card Form I-797, Approval Notice for EAD Foreign passport with Form I-94 or Form I-94A with Arrival-Departure Record

List B: Document establishing identity for Form I-9 employment verification

Federal or state issued ID card Valid driver's license For minors and those without the above — school and/or doctor's documentation

List C: Documents establishing employment authorization (also attach a document from List B)

Valid federal benefits card Birth Certificate US Citizen or Resident ID card

Others:

Approved Form I-140 Immigration Petition for Alien Worker Marriage certificate or another secondary evidence of marriage to the primary beneficiary Copy of Form I-94 reflecting non-immigrant status Updated Form I-765, Application for EAD

Secondary List of Support Documents

Applied for EAD? Here's how you can follow and expedite the processing times.

Expedite H4 EAD from Path2USA – Travel Guide for USA