Month: December 2022

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Who’s a ‘public charge’? Here’s how USCIS will decide

Who’s a ‘public charge’? Here’s how USCIS will decide
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Come December 23, 2022 the US Citizenship and Immigration Services (USCIS) will follow new rules to determine whether a person seeking residence is a “public charge.”

Being deemed a public charge – someone who causes more burden than benefit to the United States – can determine admission into the US and the chance to become a lawful permanent resident.

This is very important especially for noncitizens, since many have reportedly withdrew themselves from availing of public benefits because of the fear of being seen as a public charge.

Let’s talk about what the USCIS’s new standards starting December 23, 2022.

Under the final rule, USCIS will determine if you are likely to become a public charge based on the following:

  1. Your age, health, family status, financial status (including assets and resources), education, and skills;
  2. Whether a sponsor has submitted Form I-864, Affidavit of Support Under Section 213A of the INA, for you (when required)
  3. Whether you have received or are receiving:
  • Supplemental Security Income (SSI);
  • Cash assistance for income maintenance under Temporary Assistance for Needy Families (TANF);
  • State, tribal, territorial, or local cash benefit programs for income maintenance (often called “General Assistance”); or
  • Long-term institutionalization at government expense.

DHS will not consider in public charge determinations – benefits received by family members other than the applicant.

  • receipt of certain non-cash benefits for which noncitizens may be eligible. 

These benefits include: Supplemental Nutrition Assistance Program (SNAP) or other nutrition programs, Children’s Health Insurance Program (CHIP), Medicaid (other than for long-term institutionalization), housing benefits, any benefits related to immunizations or testing for communicable diseases, or other supplemental or special-purpose benefits.

To ensure that USCIS agents will enforce these standards fairly and humanely, the Department of Homeland Security will publish a policy manual update to guide officers.

The DHS will also reach out to communities to clarify what the new rules mean for them, their families, and the people they care about who might be scared of being labeled as a public charge.

To learn better about how to avoid being seen as a public charge, reach out toa trusted immigration lawyer.

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Updates

2023: The year of more H-2B visas

2023: The year of more H-2B visas
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The Department of Homeland Security (DHS) will add more H-2B visas in 2023, raising the cap by at least 64,000. This is on top of the regularly available H-2B visa count of 66,000.

The addition for H-2B visas targets additional seasonal workers as businesses continue to roar back with the decline of the pandemic.

Here is the breakdown: The H-2B supplemental includes an allocation of 20,000 visas to workers from Haiti and the Central American countries of Honduras, Guatemala, and El Salvador. The remaining 44,000 supplemental visas will be available to returning workers who received an H-2B visa, or were otherwise granted H-2B status, during one of the last three fiscal years.

Why does this matter? Let’s do a review first of what the H-2B visa is for.

What is the H-2B?

The H-2B visa is also known as the temporary nonagricultural worker visa.

These are given to non-Americans who would like to work for companies that would otherwise suffer “impending irreparable harm” if they did not employ non-citizens.

This can be American businesses in varying fields such as hospitality and tourism, landscaping, seafood processing, and others.

The conditions

Here are the conditions that need to be met for granting the visa:

  1. The employment needs to be for a limited period
  2. The limited period must be less than a year
  3. The employers must prove that there are not enough American workers to do the temporary work
  4. The employment of the non-Americans must not affect the wages for American workers posted in similar jobs

Those who wish to get an H-2B meanwhile need to get a job offer from an American employer that can meet the above criteria.

Applicants need to prove that they will return to their country after the temporary employment.

After the first limited period is complete, the employee can extend their employment for up to 3 years if the employer can prove that the employee is still needed.

Protection from exploitation

With concerns for exploitation and unfair working conditions, the US DHS and Department of Labor announced the creation of a new White House-convened Worker Protection Taskforce.

“We also will bolster worker protections to safeguard the integrity of the program from unscrupulous employers who would seek to exploit the workers by paying substandard wages and maintaining unsafe work conditions,” said Secretary of Homeland Security Alejandro MAyorkas in a statement.

For advice on how to take advantage of this raising of the cap and to find alternate ways to work in the United States, reach out to a trusted immigration lawyer.

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Making sense of the big immigration backlog problem

Making sense of the big immigration backlog problem
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The immigration backlog of the United States continues to rise at dizzying rates, resulting in migrants having to wait for years before getting any resolution for their cases. 

There are even stories of migrants dying before their visas, work permits, green cards, and naturalization petitions reached a resolution.

According to data tracked by the Syracuse University, unresolved cases are about to hit 2 million.  Common sense as confirmed by reporting indicates that the backlogs spiked because of the pandemic, but with the US relaxing COVID measures, the backlog continues to grow.

A factor to emphasize is that in the entirety of the US, there are only 600 immigration judges to rule on these cases. Many of these judges handle up to 4,000 cases each.

If the country had unlimited resources and law professionals, an easy solution would be to hire more judges – but that is not the case. This is why experts have been calling for prioritization: that the cases that need to be resolved more urgently.

Of the almost 2 million people waiting in the backlog, some 750,000 are asylum-seekers. These migrants are placed in a tight spot because the US only allows for 180-day work permits after the filing of an asylum petition, forcing many to work illegally.

While the government has enacted policies to help in reducing the backlog, such as making it easier for migrants with advanced STEM degrees, these have so far been insufficient.

The US needs to respond to this urgent problem as more migrants enter the country, the situation exacerbated by conflict in the Middle East and more recently in Ukraine.

To make sense of the backlog and find alternate paths to citizenship, reach out to a trusted immigration lawyer.

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Another reason why the US needs to review the H-1B visa policy

Another reason why the US needs to review the H-1B visa policy
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A new study has been released pointing to the benefits of expanding the United States’ H-1B visa policy.

Let’s first discuss the H-1B: The H-1B is a visa in the US that allows US employers to temporarily hire foreign workers in specialty occupations. 

An H-1B worker’s spouse and children can accompany the worker to the US by obtaining H-4 visas, which are not visas that allow them to work in the US.

The study found, however, that most H-1B visa holders are married to skilled workers. The problem is that most of them only have H-4 visas.

To be allowed to work, these spouses need to wait for their H-1B spouses being on queue for a permanent visa, which would then allow them to apply for employment authorization. This can be a wait that takes years.

In the study of the National Foundation for American Policy (NFAP), the US H-1B rules were compared to equivalent rules in Canada, and found that it could lead to a brain drain for the US.

This is because under Canada rules, all spouses of skilled workers are also granted work authorization.

A change in policy to allow spouses to work, according to the study, would mean economic benefits for American businesses. 

“Research has shown that the H-1B visa category boosts US economic growth, creates jobs for American workers, and slows offshoring of high-paid jobs. Extending work eligibility to the spouses of H-1B visa holders would help the United States garner more of the economic benefits that skilled foreign workers create,” the study said.

For advice on H-1B visas and work authorizations, consult a trusted immigration lawyer.

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DACA codified – what you need to know

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The codification of the Deferred Action for Childhood Arrivals (DACA) is finally in effect as of October 31, 2022, through the published DACA Final Rule of the Biden administration.

What does this mean for Dreamers? Well, for many, it means things will remain the same. This is good news to some and bad news to others.

Let me explain.

On October 6, a federal appeals court ruled that DACA was illegal, but it kept it intact – mostly because of the Biden administration’s codification.

The Biden administration codified DACA through the Final Rule in order to find a way to keep it from being struck down. This was to replace the implementation of DACA only through the legally challenged memo from the Obama administration.

Now, what does this mean for DACA beneficiaries and applicants.

The good news is that DACA renewals will continue. 

It clarified that expunged convictions, juvenile delinquency adjudications, and immigration-related offenses seen as felonies or misdemeanors under state laws won’t automatically mean disqualification from DACA.

It added that work authorizations obtained through DACA will only be revoked only after the termination of the DACA status and not at the beginning of deportation proceedings.

The bad news is that new applications still won’t be processed.

Beneficiaries who have been approved for the program could continue to renew. It is advised that beneficiaries renew regularly and on time because DACA continues to be under legal challenge and there is a real possibility that it will get paused in toto.

The recommended time to renew DACA is 150 to 180 days before expiration.

If you let your DACA status expire, you won’t be able to renew it because it will be considered a new application.

To navigate through this DACA dilemma and to find alternate ways to seek permanent status, consult a trusted immigration lawyer.

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Updates

DHS Announces Extension of REAL ID Full Enforcement Deadline

DHS Announces Extension of REAL ID Full Enforcement Deadline
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On December 5, 2022 the Department of Homeland Security (#dhs) announced its intent to extend the REAL ID full enforcement date by 24 months, from May 3, 2023 to May 7, 2025. 

DHS Announces Extension of REAL ID Full Enforcement Deadline

Under the new regulations, states will now have additional time to ensure their residents have driver’s licenses and identification cards that meet the security standards established by the REAL ID.

As required by the law, following the enforcement deadline, federal agencies, including the Transportation Security Administration (#tsa), will be prohibited from accepting driver’s licenses and identification cards that do not meet these federal standards. 

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USCIS Extends Green Card Validity Extension to 24 Months for Green Card Renewals

USCIS Extends Green Card Validity Extension to 24 Months for Green Card Renewals
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On Sept. 26, 2022, USCIS automatically extended the validity of Permanent Resident Cards (also known as Green Cards) to 24 months for lawful permanent residents who file Form I-90, Application to Replace Permanent Resident Card (Green Card).

USCIS is in the process of sending out amended receipt notices for individuals with a pending Form I-90. You can present an amended receipt notice with an expired Green Card as evidence of continued status. By presenting your amended receipt notice with your expired Green Card, you remain authorized to work and travel for 24 months from the expiration date on the front of your expired Green Card.

If you are in urgent need of evidence of status while you wait for your amended receipt notice or your replacement Green Card, or if you need another in-person service, you may call the USCIS Contact Center to request an appointment. We encourage you to wait for your amended receipt notice instead of scheduling an appointment that you may not need.

More Information
Please visit USCIS website for more information on the extended green card validity or contact us for assistance. 

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The H-1B visa: A pathway to work for healthcare workers

The H-1B visa: A pathway to work for healthcare workers
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Application for the H-1B visa is around the corner as the new year of 2023 is fast approaching. This year, the H-1B registration ran from March 1 to March 18. Let’s talk about how it works and if you or someone you know can qualify for it and can even benefit from its cap exemption.

This may benefit those especially in the healthcare industry.

Understanding the H-1B

The H-1B visa is known to be for professionals in general, but what is commonly understated is how healthcare workers can apply for this visa. 

The H-1B visa is a temporary visa for professionals in specialty jobs that typically require a bachelor’s degree or an equivalent. The US employer (not the worker) must file a petition, and if granted, the H-1B will be valid for 3 years and can be renewed for 3 more years.

The cap you need to know

Since there are so many professionals who seek the H-1B visa yearly, the United States government has placed a cap on the number of people who can get them. To decide who to give the H-1B to, they hold a visa lottery – choosing who gets the visa randomly.

The H-1B visa lottery is limited to 65,000 H-1B visas for each fiscal year, with an additional 20,000 saved for people holding a master’s degree or higher from a US institution. 

Before you even start stressing about the H-1B lottery, it’s important to understand which jobs qualify for this visa. Only specialty occupations qualify for an H-1B, which means that the job requires a bachelor’s degree or higher (or its equivalent in work experience) in a specialized field like IT, engineering, or medicine. But, not every medical job is eligible for an H-1B.

Which healthcare workers are eligible for H-1B visas?

While a majority of health care works are educated and specialized, only some types of health care jobs qualify for an H-1B visa. The three main categories of healthcare jobs that qualify for H-1Bs are nurses, physical therapists, and physicians. Here’s what you need to know about each category.

Nurses

As far as nurses go, generally only nurse practitioners, nurse administrators, and nurse managers are generally qualified for an H-1B. Why not RNs? Well, registered nurse (RN) positions normally require only a two-year degree, so RNs don’t meet the standard educational requirement for an H-1B. However, there have been instances where RNs with really specialized knowledge and perhaps an accompanying certificate, e.g. an emergency room cert, may qualify.

Physical therapists 

Because a bachelor’s degree is generally a minimum standard requirement for this kind of work, physical therapists are generally eligible for an H-1B visa. Foreign physical therapists must, of course, have a bachelor’s degree or equivalent, have their educational credentials verified through FCCPT, and obtain a US state PT license. 

Physicians

Doctors may apply for an H-1B visa to participate in a residency program, teach or conduct research, and work at a healthcare facility. Each doctor must pass the three-step examination for medical licensing through the United States Medical Licensing Examination (USMLE). This test examines clinical knowledge, clinical skills, and includes a spoken English assessment. 

There are approximately 127,000 immigrant physicians in the US who account for nearly a quarter of all the country’s licensed physicians. A majority of these doctors come from India, the Caribbean, Pakistan, Philippines, and Mexico. As you can see, the US relies heavily on foreign-born physicians. 

Can healthcare workers be exempted from the cap? 

Yes.

Some hospitals and health care systems qualify for an H-1B cap-exemption. This allows USCIS to approve H-1B visa petitions for some professions beyond its 85,000 annual cap, and applications for such positions can be filed during any time of the year.

A qualifying nonprofit institution of higher learning or a qualifying nonprofit affiliated with an institution of higher learning can be cap-exempt. H-1B cap-exempt health care categories include:

  • Institutions of higher education (colleges and universities)
  • Non-profit entities related to or affiliated with institutions of higher education
  • Nonprofit research organizations
  • Federal government research organizations
  • State and local government research entities

A healthcare organization, such as a hospital, can be cap-exempt if it can prove it’s related to or affiliated with an institution of higher education. This nonprofit relationship or affiliation can take the form of ownership or board control, or even formal research cooperation.

Unsure about how you can get an H-1B visa? Consult your trusted immigration lawyer.