• Ashenberg Law Group

September 2019 Newsletter

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IMMIGRATION UPDATES

1. Continuation of Worldwide Backlog, USCIS’ Final Decision on Submitted Applications Regressed About 2.5 Years, for EB-1 Green Cards; Priority Date for Family-Based F2A Spouses and Minor Children of Green Card Holders Continues to be “Current”

The U.S. Department of State’s (DOS) most recently released Visa Bulletin for September 2019 shows a continuation of worldwide backlog for EB-1. The priority date in which USCIS gives the final decision on green card applications already submitted by China-Mainland born applicants has regressed about 2.5 years.

On the other hand, the Visa Bulletin for September 2019 shows that Family-Based F2A Spouses and Minor Children of Green Card Holders continues to be “current” for all countries. Those in the U.S. can apply for an adjustment of status green card concurrently with the immigrant petition; those who are overseas will be scheduled for an immigrant visa interview, provided that they are “documentarily qualified”, and be eligible for an immigrant visa.

As with previous months, USCIS will accept adjustment of status applications based on the “Dates of Filing” charts for family-based cases (exception for F2A Spouses and Minor Children of Green Card Holders, see above), and the “Final Action Dates” for employment-based cases.

The September 2019 Visa Bulletin can be found here.

2. Understanding the Public Charge Inadmissibility Final Rule

On August 14, 2019, DHS posted a final rule in the Federal Register for public inspection, amending how DHS interprets and implements the public charge ground of inadmissibility. The public charge inadmissibility rule is to ensure that those seeking to come to or remain in the U.S. do not depend on public resources to meet their needs, and to ensure that U.S. immigrants are equipped to be self-sufficient and can live in the U.S., independent of government assistance. The rule will go into effect on October 15, 2019 at 12:00 am EST.

This final rule is threefold, where it: 1) redefines certain terms critical to the public charge determination such as “public charge” and “public benefit”; 2) explains the factors that DHS will consider in the totality of the circumstances when making a public charge inadmissibility determination; and 3) addresses USCIS' authority to issue public charge bonds in applications for adjustment of status; and 4) requires aliens seeking an extension of stay or change of nonimmigrant status demonstrate that they have not received public benefits over the designated threshold since obtaining the nonimmigrant status.

Definitions of “Public Charge” and “Public Benefit”:

  • “Public Charge” is redefined to mean an alien who receives one or more public benefits for more than 12 months in the aggregate within any 36-month period (such that, for instance, receipt of 2 benefits in 1 month counts as 2 months).

  • “Public Benefit” is redefined as any cash benefits for income maintenance, including Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF), General Assistance, Supplemental Nutrition Assistance Program (SNAP), most forms of Medicaid, Section 8 Housing Choice Voucher Program, Section 8 Project-Based Rental Assistance, and public housing.

Totality of the Circumstances when Making a Public Charge Inadmissibility Determination: The rule identifies positive and negative factors to guide DHS officers on how to weigh all the factors in each case in the totality of circumstances. DHS will, at a minimum, consider the alien’s age, health, family status, assets, resources and financial status, education and skills, prospective immigration status and period of admission, and any sufficient Affidavit of Support. Some examples of positive and negative factors include:

  • Age Positive Factor: between 18 and 61 Negative Factor: younger than 18 or older than 61

  • Health Heavily Weighted Positive Factor: having private health insurance not subsidized by Affordable Care Act tax credits for the intended duration of stay Heavily Weighted Negative Factor: having a medical condition that is likely to require extensive treatment or institutionalization; being uninsured and lacking financial resources to pay for medical costs associated with the condition

  • Resources and Financial Status Heavily Weighted Positive Factor: having household income and financial support of at least 250% of the Federal Poverty Guidelines for the alien’s household size Heavily Weighted Negative Factor: not being a full-time student, or authorized to work but unable to demonstrate current employment, recent employment history or reasonable prospect of future employment

Public Charge Bond for Adjustment of Status Applicants: USCIS may, under discretion, permit adjustment of status applicants who are inadmissible only because of the public charge ground to adjust status upon posting a minimum public charge bond of $8,100. The actual amount depends on each individual’s situation and is adjusted annually for inflation. The public charge bond can be cancelled only upon the immigrant’s death, permanent departure, five years as a lawful permanent resident, or naturalization.

Applicability to Nonimmigrant Extension of Stay and Change of Status Applicants: DHS will consider whether applicants have received designated benefits for more than 12 months in the aggregate within a 36-month period since obtaining the nonimmigrant status they wish to extend or change.

This final rule does not apply to humanitarian-based immigration programs, including refugees, asylees, certain trafficking victims (T nonimmigrants), victims of qualifying criminal activity (U nonimmigrants), victims of domestic violence (VAWA self-petitioners), and Special Immigrant Juveniles (SIJs). This rule will be applied to all other applications and petitions postmarked (or electronically submitted) on or after October 15, 2019.

USCIS’ alert can be found here.

3. USCIS Returns All Unselected FY 2020 H-1B Cap-Subject Petitions

On August 15, 2019, USCIS announced that all FY 2020 H-1B cap-subject petitions that were not selected in the computer-generated random selection process has been returned.

If you submitted an FY 2020 H-1B cap-subject petition that was delivered to USCIS between April 1 and April 5, 2019, and you have not received a receipt notice or a returned petition by August 29, please contact USCIS for further assistance.

USCIS’ alert can be found here.

ALG SUCCESS STORIES

L-1A Petition Approved in 2.5 Months for General Manager of Engineering and Construction Enterprise Mr. B had been serving as the General Manager of a successful Chinese engineering and construction enterprise covering thermal power, wind power, photovoltaic, steel and machinery processing for over 17 years, where he managed over 400 employees in 2 branches. The U.S. affiliate company hoped to transfer Mr. B as President to expand its new U.S. business, as well as have him manage 7 employees in the U.S.

ALG attorneys consulted with Mr. B on the qualifying relationship of the two companies, carefully reviewed all probative documents, and drafted a detailed petition letter to incorporate all the supporting documents to prove the Chinese company’s thriving business and the genuine business need to expand to the U.S. market.

Even with a request for additional evidence, which ALG attorneys swiftly responded to, USCIS approved this L-1A petition in 2.5 months from initial submission.

OTHER ANNOUNCEMENTS AND UPDATES

ALG Assisted EB-5 Chinese Investors in Successfully Recovering their Invested Capital, Interest and Legal Fees in the Deadwood Mountain Grand Lawsuit Settlement On August 16, 2019, Deadwood Mountain Grand and EB-5 investors finalized an out-of-court settlement, officially ending the 3-year lawsuit that dates back to 2016.

Tentexkota, a limited liability corporation, borrowed $32.5 million in two loans from 65 Chinese investors collectively in 2010 and 2011 to develop the Deadwood Mountain Grand, which is a hotel, event center and casino in Deadwood, South Dakota. The Chinese investors made the investment through the EB-5 program, which eventually allows investors to obtain permanent residency green cards for them and their families.

Tentexkota missed an April 2015 deadline to repay the $32.5 million, and also failed to do so after an extension was granted until May 2016. The Chinese investors (known collectively as SDIF Limited Partnership 2) went to court to recover the money that was guaranteed to them, sparking the litigation against Deadwood Mountain Grand.

With ALG’s assistance, after 3 years of litigation, these Chinese investors were able to protect their immigration status, as well as fully recover their invested capital plus interest, and all legal fees incurred from this process. The finalized negotiated settlement represents nothing short of a full and unmitigated victory for the investors in the Deadwood Mountain Grand lawsuit.

The public court file can be found here.

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