U.S. Immigration Updates– Week of December 19, 2022

DHS’s Public Charge Final Rule Goes into Effect on December 23

On Dec. 23, 2022, the Department of Homeland Security’s (DHS) Public Charge Ground of Inadmissibility final rule will go into effect. This final rule, previously announced, provides clarity and consistency for noncitizens on how DHS will administer the public charge ground of inadmissibility. This final rule restores the historical understanding of a “public charge” that had been in place for decades before the previous administration began to consider supplemental public health benefits such as Medicaid and nutritional assistance as part of the public charge inadmissibility determination.

When making a public charge inadmissibility determination under this final rule, DHS will consider an applicant’s “age; health; family status; assets, resources, and financial status; education and skills;” a sufficient Affidavit of Support Under Section 213A of the INA (when one is required); and prior or current receipt of 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 receipt of noncash benefits (for example, Supplemental Nutrition Assistance Program, public housing, school lunch programs, etc.) other than long-term institutionalization at government expense.

DHS has published a Policy Manual update providing guidance to USCIS officers on how to implement this regulation fairly and consistently and informing the public about how the rule will be implemented. USCIS will begin applying the policy guidance on Dec. 23, 2022, to applications filed (or electronically submitted, if applicable) on or after that date. DHS has published the 12/23/22 edition of Form I-485, Application to Register Permanent Residence or Adjust Status, for applicants to prepare their applications in advance of Dec. 23, 2022. Applicants MUST NOT file the 12/23/22 edition of Form I-485 before Dec. 23, 2022. DHS will reject Form I-485 with the edition date of 12/23/22 filed before Dec. 23, 2022.

· DHS will reject the 07/15/22 edition of Form I-485 if it is postmarked on or after Dec. 23, 2022.

· DHS will reject the 12/23/22 edition of Form I-485 if it is postmarked on or before Dec. 22, 2022.

SOURCE: USCIS Newsroom, December 19, 2022: https://www.uscis.gov/newsroom/alerts/dhss-public-charge-final-rule-goes-into-effect-on-dec-23

 

USCIS Provides Options for Nonimmigrant Workers Following Termination of Employment

U.S. Citizenship and Immigration Services (USCIS) is providing information for nonimmigrant workers whose employment has terminated, either voluntarily or involuntarily. These workers may have several options for remaining in the United States in a period of authorized stay based on existing rules and regulations.

Below is a compilation of options that may be available to nonimmigrant workers seeking to remain in the United States in a period of authorized stay following termination. Please note that not all options below provide employment authorization.

60-Day Grace Period

Regulations permit a discretionary grace period that allows workers in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN classifications (and their dependents) to be considered as having maintained status following the cessation of employment for up to 60 consecutive calendar days or until the end of the authorized validity period, whichever is shorter (See 8 CFR 214.1(l)(2)).

During this period, workers may be able to maintain their nonimmigrant status if a new employer timely files a petition on their behalf with an extension of stay request (e.g., an H-1B change of employer petition for a worker in H-1B status).

Alternatively, workers may be able to remain in the United States in a period of authorized stay if they timely file an application to change to a new nonimmigrant status (such as B-2 visitor nonimmigrant status) or an application for adjustment of status, if eligible (see below for a detailed overview of options).

Workers who are unable to timely file a change of status application or find a new employer who timely files a change of employer petition for the worker, may be required to depart the United States at the end of this grace period.

Portability to a New Employer

Portability rules permit workers currently in H-1B status to begin working for a new employer as soon as the employer properly files a new H-1B petition with USCIS, without waiting for the petition to be approved.

Also, a worker with an adjustment of status application (Form I-485) that has been pending for at least 180 days with an underlying valid immigrant visa petition (Form I- 140) has the ability to transfer the underlying immigrant visa petition to a new offer of employment in the same or similar occupational classification with the same or a new employer. This is commonly referred to as “porting.” More information about porting can be found in the USCIS Policy Manual.

Change of Status

Workers may use the up to 60-day discretionary grace period to apply to change their nonimmigrant status, which may include changing status to become the dependent of a spouse (e.g., H-4, L-2). Some individuals in a dependent nonimmigrant status may be eligible for employment authorization incident to status, including spouses of E-1, E-2, E-3, or L-1 nonimmigrants In addition, some spouses of H-1B workers may be eligible for work employment authorization if certain requirements are met.

Other possible nonimmigrant options include student status (F-1) or visitor status (B-1 or B-2). Note that, by statute, B-1 and B-2 nonimmigrant visitors are specifically precluded from “performing skilled or unskilled labor” in the United States. Certain F-1 students, by regulation, may engage in limited employment.

Note: The timely filing of a non-frivolous application to change status will toll, or stop, the accrual of unlawful presence until the application is adjudicated. For example, if an individual files a non-frivolous application to change status before the end of the applicant’s 60-day grace period, they will not accrue unlawful presence while the application remains pending even after the 60-day grace period has elapsed. If the application is ultimately approved, then the individual’s status is changed and is considered to have been in a period of authorized presence the entire time the application was pending. If the application is denied, then the individual starts to accrue unlawful presence the day after the denial decision.

Change of Status and Employer

Workers may use the up to 60-day discretionary grace period to seek a new employer-sponsored nonimmigrant status in the same or different status. For example, depending on the specific facts presented, an L-1 worker may be eligible for new employment under the TN, E-3, or H-1B1 classifications. The timely filing of a non-frivolous change of status application will prevent the accrual of unlawful presence until the application is adjudicated (see above). Such a filing alone will not, however, confer employment authorization in the new position during the pendency of the application, and will not extend employment authorization if the original classification is no longer valid. Some petitions may be eligible for premium processing for an additional fee.

Adjustment of Status

Some workers may be eligible to file a self-petitioned immigrant visa petition concurrently with an adjustment of status application. Examples of immigrant classifications that are eligible for self-petitioning include EB-1 Extraordinary Ability, EB-2 National Interest Waiver, or EB-5 Immigrant Investors. Workers with a pending adjustment application are generally eligible to remain in the United States and obtain an Employment Authorization Document (EAD).

Period of Authorized Stay – Compelling Circumstances Employment Authorization Document

Workers who are the beneficiary of an approved employment-based immigrant visa petition (Form I-140) may be eligible for a compelling circumstances EAD for up to one year if they:

· do not have an immigrant visa available to them in the Department of State’s Visa Bulletin, and

· face compelling circumstances.

Note: A compelling circumstances EAD is a discretionary stopgap measure intended to assist certain individuals on the path to lawful permanent residence by preventing the need to abruptly leave the United States. Workers who begin working on a compelling circumstances EAD will no longer be maintaining nonimmigrant status but generally will be considered to be in a period of authorized stay and will not accrue unlawful presence in the United States while the EAD is valid.

Expedite Criteria

Some circumstances may warrant expedited adjudication, including applications to change status to a dependent status that includes eligibility for employment authorization. For example, an application to change status from H-1B to L-2 may be eligible for expedited adjudication to prevent severe financial loss.

Departure from the United States

Workers may choose to depart the United States. For H-1B and O workers who chose to depart the United States after involuntary cessation of employment, the reasonable costs of transportation to the worker’s last place of foreign residence must be borne by the H-1B employer or by the O employer and O petitioner, as applicable (See 8 CFR 214.2(h)(4)(iii)(E) and 8 CFR 214.2(o)(16)).

Once abroad, H-1B holders may seek U.S. employment and readmission to the United States for any remaining period of their H-1B status. Those seeking another classification for which they may be eligible can complete the application or petition process abroad and seek readmission to the United States.

SOURCE: USCIS Newsroom, December 19, 2022: https://www.uscis.gov/newsroom/alerts/options-for-nonimmigrant-workers-following-termination-of-employment

 

U.S. Consulate at Guangzhou, China, Closes Immigrant Visa Unit

The Immigrant Visa Unit of the U.S. consulate in Guangzhou, China, announced that beginning December 19, 2022, it will be closed for regular visa services until further notice due to limited resources.  The unit will notify the public once it is able to resume normal immigrant visa (IV) operations and will communicate with IV applicants to reschedule their canceled appointments.

A web form is available at https://china.usembassy-china.org.cn/visas/immigrant-visas/immigrant-visa-unit-question/  to submit questions, although response times are expected to be delayed.

The U.S. Mission in China also announced that due to the surge of COVID-19 infections across China, the U.S. embassy in Beijing and the U.S. consulate in Shanghai are providing passport and emergency citizen services only. The U.S. consulates in Wuhan, Shenyang, and Guangzhou will only provide emergency consular services until further notice.

SOURCE: ABIL Immigration Insider, December 18, 2022, and https://china.usembassy-china.org.cn/alert-update-from-u-s-mission-china-consular-services-for-december-15-2022/

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