In the News at ABIL

Posted on: October 2nd, 2019
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USCIS Still Has Not Released New Forms Which Will be Required on October 15th

On August 14, 2019, USCIS issued a final rule on the public charge rule of inadmissibility. The rule makes dramatic changes in how the agency will consider the question of whether someone should be denied a non-immigrant or immigrant visa and is set to take effect on October 15th. The rule requires applicants for non-immigrant and immigrant visas to use new forms, including a new I-485, I-539, I-129, the I-864 affidavit of support and a new I-944 Declaration of Self-Sufficiency for applications post-marked after that date. The I-944 draft form is 19 pages and USCIS estimates it will take 4 to 4.5 hours to complete.

USCIS has released draft forms, but with only two weeks to go before the new forms become mandatory, USCIS has yet to issue the final versions raising questions about how prepared the agency is to implement the new rule.

The rule itself is the subject of multiple lawsuits seeking to stop the rule from taking effect. Suits by non-profit agencies and sixteen state attorneys general have been filed in California, New York and Washington, DC. The suits are seeking a preliminary injunction and arguments in two of the cases are set for this week. A judge will have only a few days to issue a ruling or the rule will take effect.

Details: https://www.aila.org/advo-media/issues/all/public-charge-changes-at-uscis-doj-and-dos

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OFLC Announces Schedule for E-Filing of LCAs

The Department of Labor’s Office of Foreign Labor Certification (OFLC) has announced its schedule for electronic filing of labor condition applications (LCAs) in the Foreign Labor Application Gateway (FLAG) System. Affected LCA programs include the H-1B, H-1B1, and E-3 visa classifications. OFLC noted:

  • Beginning September 16, 2019, the FLAG System’s LCA Program Module will be enabled and stakeholders will be able to begin preparing H-1B, H-1B1, and E-3 applications using the Form ETA-9035E. However, the FLAG System will not permit the submission of LCA applications until 12 noon ET on October 1, 2019.
  • OFLC will continue to accept online submissions of the Form ETA-9035E through the iCERT System until 11:59 a.m. ET on October 1, 2019. The ability to submit LCA applications using the iCERT System will be deactivated at 12 noon ET on that date.
  • OFLC will process all LCA applications submitted through the iCERT System, and stakeholders will be able to access their iCERT System accounts to check the status of applications submitted through the iCERT System.

OFLC has created instructional videos on how to create and manage a FLAG System account and prepare the Form ETA-9035E, to be posted by September 13, 2019, at the OFLC notice link below. Additionally, OFLC will host an instructional webinar on Wednesday, September 18, 2019, to provide technical assistance to employers and authorized attorneys or agents. More information is available at the links below.

Details: OFLC notice (scroll to September 5), https://www.foreignlaborcert.doleta.gov/news.cfm; September 18 webinar, https://bit.ly/2lHw7cw (meeting password: Welcome!24, call-in number: 888-469-1548; participant passcode: 2477817)

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State Dept. Issues Reminder About Uses of Passport Books/Cards Under ‘Real ID’

The Department of State recently issued a reminder about upcoming changes to domestic air travel documentation requirements under the Real ID Act, which requires all state-issued identification documents to meet a set of minimum security standards. IDs that do not meet these standards will not be accepted for federal purposes, including as ID for boarding domestic flights. State IDs, such as driver’s licenses, may need updating.

The reminder notes that the U.S. passport book and U.S. passport card are both accepted by the Transportation Security Administration as ID for domestic flights. The passport card cannot be used for international air travel. In addition to its acceptance as ID for domestic flights, the passport card can be used for entering the United States at land border crossings and sea ports of entry from Canada, Mexico, the Caribbean, and Bermuda. The passport card costs $30 for adults who have a passport book, and $65 for first-time adult applicants. The card has the same validity period as the book (valid for 10 years for those over 16).

Details: Department of State reminder, https://travel.state.gov/content/travel/en/News/passports/how-a-passport-can-help-you-fly- domestically.html; Real ID website to check state status, https://web.archive.org/web/20171231015609/https://www.dhs.gov/real-id; Real ID FAQ , https://web.archive.org/web/20171013054330/https://www.dhs.gov/real-id-public-faqs.

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USCIS Policy Guidance Changes Definition of “Residing in the United States” for Purposes of Acquiring Citizenship

U.S. Citizenship and Immigration Service (USCIS) has issued policy guidance, effective October 29, 2019, and applicable prospectively to applications filed on or after that date, that defines “residence” and clarifies distinctions between U.S. residence and physical presence. USCIS is changing its policy regarding eligibility for U.S. citizenship of children born to U.S. government employees and U.S. armed forces members employed or stationed outside the United States. Specifically, the guidance:

  • Clarifies that temporary visits to the United States do not establish U.S. residence and explains the distinction between residence and physical presence in the United States
  • Explains that USCIS no longer considers children of U.S. government employees and U.S. armed forces members residing outside the United States as “residing in the United States” for purposes of acquiring U.S. citizenship under INA 320.

USCIS said it is rescinding the prior USCIS policy permitting children of U.S. government employees and U.S. armed forces members stationed outside of the United States to be considered “residing in” the United States. The changes also will affect the ability of U.S.-born citizens to transmit citizenship to children if they do not meet the more restrictive test for residing in the United States.

Details: USCIS Policy Alert, https://www.uscis.gov/sites/default/files/policymanual/updates/20190828- ResidenceForCitizenship.pdf; USCIS announcement, https://www.uscis.gov/news/factsheets/uscis-policy-manual-update; statement from Acting USCIS Director Ken Cuccinelli, https://www.uscis.gov/news/alerts/statement-regarding-a-policy-update-defining-residencestatutory-provisions-related-citizenship.

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This newsletter was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers (www.abil.com), of which Lynn Susser is an active member.

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