State Department Issues Final Rule Ordering Denials of B Visas to Combat ‘Birth Tourism’
The Department of State’s Bureau of Consular Affairs has amended its regulation governing the issuance of visas in the ‘‘B’’ nonimmigrant classification for temporary visitors for pleasure, effective January 24, 2020. The final rule establishes that travel to the United States with the primary purpose of obtaining U.S. citizenship for a child by giving birth in the United States is an impermissible basis for the issuance of a B nonimmigrant visa. Consequently, a consular officer “shall deny a B nonimmigrant visa to an alien who he or she has reason to believe intends to travel for this primary purpose,” the rule states, noting that this rule is an effort to combat the “birth tourism industry” as a matter of national security.
The final rule also codifies a requirement that a B nonimmigrant visa applicant who seeks medical treatment in the United States must demonstrate, to the satisfaction of the consular officer, the arrangements for such treatment and establish the ability to pay all costs associated with such treatment. The rule establishes a “rebuttable presumption that a B nonimmigrant visa applicant who a consular officer has reason to believe will give birth during her stay in the United States is traveling for the primary purpose of obtaining U.S. citizenship for the child.”
Although the regulation amends the part pertaining to visitors for pleasure, the language is broad enough to subject B-1 business visitor applicants to the rebuttable presumption. The rule would thus also adversely affect women who seek to come to the United States to engage in legitimate business activities, which includes business meetings and entrepreneurial activities. The rule only applies to visa applicants at U.S. consular posts and not to visa waiver applicants whose first opportunity to establish their eligibility as visitors is at a U.S. port of entry. As of January 23, 2020, no guidance has been issued by U.S. Customs and Border Protection HQ to ports of entry concerning the final rule.
The Department said the rule is exempt from notice and comment under the foreign affairs exemption of the Administrative Procedure Act: “Opening this pronouncement of foreign policy to public comment, including comment from foreign government entities themselves, and requiring the Department to respond publicly to pointed questions regarding foreign policy decisions would have definitely undesirable international consequences.”
Details: Final rule is here.
USCIS Announces Termination of Iranian Eligibility for E-1 and E-2 Nonimmigrant Classification Based on Treaty
U.S. Citizenship and Immigration Services (USCIS) announced on January 23, 2020, that nationals of Iran and their dependents are no longer eligible to change to or extend their stays in E-1 or E-2 nonimmigrant status on the basis of the 1955 Treaty of Amity, Economic Relations, and Consular Rights between the United States and Iran due to the treaty’s termination.
USCIS said that those who are currently in valid E–1 or E–2 status on the basis of the Treaty of Amity, including their family members who are also in valid E status, must depart the United States upon expiration of their authorized period of stay in the United States, unless otherwise authorized to remain in the United States (e.g., pursuant to a change of status to another nonimmigrant status or adjustment of status to lawful permanent residence). The changes described in the notice do not prevent Iranian nationals and their dependents from seeking admission in, or applying for a grant of, another nonimmigrant visa classification for which they believe they can establish eligibility under U.S. immigration law, the agency noted.
USCIS Reopens, Extends Comment Period for Fee Increases
U.S. Citizenship and Immigration Services (USCIS) has reopened and extended the comment period on its proposed rule raising certain fees for immigration services and benefits to February 10, 2020.
Details: Federal Register notice is here.
OFLC to Decommission iCERT Labor Certification Registry
The Department of Labor’s Office of Foreign Labor Certification (OFLC) is alerting employers and other interested stakeholders that the iCERT System Labor Certification Registry, which provides public access to labor certification decisions in the PERM, LCA, H-2A, and H-2B visa programs, will be decommissioned. As part of the Department’s technology modernization initiative, the Foreign Labor Application Gateway (FLAG) System was developed “to replace the legacy iCERT System, improve customer service, and modernize the administration of foreign labor certification programs,” OFLC said.
Effective February 28, 2020, iCERT System account users will no longer be able to take any actions on their applications (e.g., delete initiated applications, request redeterminations, request center director reviews, withdraw applications, and upload supporting documents) within the respective Prevailing Wage, LCA, H-2A, or H-2B program areas of the legacy iCERT System. However, iCERT System account users will retain the ability to access their accounts and view, download, or copy information related to their applications after the iCERT System is placed in a read-only mode.
Also effective February 28, 2020, data on labor certification decisions will be available within the Disclosure Data section of the OFLC Performance data page. Those interested in obtaining copies of labor certification records or other information maintained by OFLC may also request access under the Freedom of Information Act.
USCIS Announces Countries Eligible for H-2A and H-2B Visa Programs
U.S. Citizenship and Immigration Services (USCIS) and the Department of Homeland Security, in consultation with the Department of State, have announced the list of countries whose nationals are eligible to participate in the H-2A and H-2B visa programs in 2020. For 2020, the countries designated as eligible in 2019 are unchanged.
The notice does not affect the status of H-2 beneficiaries who currently are in the United States unless they apply to extend their status. It does apply to nonimmigrants changing status in the United States to H-2A or B. Each country’s designation is valid, subject to removal for failure to meet the requirements for continued designation, from January 19, 2020, until January 18, 2021.
USCIS may approve H-2A and H-2B petitions, including those that were pending as of the date of the Federal Register notice, for nationals of countries not on the list on a case-by-case basis only if doing so is determined to be in the interest of the United States.
USCIS Releases Final FY 2019 Statistics
U.S. Citizenship and Immigration Services (USCIS) has released its final fiscal year (FY) 2019 agency statistics. They include naturalizations, green cards, employment authorizations, and protected populations, among other categories. Highlights from FY 2019 include:
- USCIS naturalized 834,000 new citizens, which the agency said was an 11-year high.
- USCIS granted lawful permanent residence to nearly 577,000 individuals.
- USCIS received nearly 2.2 million employment authorization applications and approved more than 500,000 petitions for nonimmigrant workers in FY 2019, including specialty occupation, temporary agricultural and non-agricultural, and other workers.
- USCIS processed more than 40 million cases through E-Verify.
OFLC Completes Randomization Process on H-2B Applications Requesting an April 1, 2020, Start Date
The Department of Labor’s Office of Foreign Labor Certification (OFLC) has completed a randomization process to assign all H-2B applications submitted during the initial three-day filing window, January 2-4, 2020, requesting an April 1, 2020, work start date for the second half of the fiscal year 2020 H-2B statutory visa cap. OFLC said it will provide written notification to employers (and the employer’s authorized attorney or agent) with their H-2B Assignment Group. OFLC has published the list of the H-2B applications assigned to each Assignment Group, along with a list of frequently asked questions (FAQ).
OFLC received a total of 5,677 H-2B applications requesting 99,362 worker positions during this filing period.
Details: Related OFLC notices are here. List of H-2B applications and their Assignment Groups are here. Federal Register notice about the randomization process for H-2B applications is here. OFLC H-2B FAQ are here.
USCIS Publishes Notice ‘Formally Announcing’ Implementation of Electronic H-1B Registration Process and Timeframe
On January 9, 2020, U.S. Citizenship and Immigration Services (USCIS) published a Federal Register notice formally announcing implementation of the H-1B registration process for fiscal year 2021 H-1B cap-subject petitions.
USCIS will open an initial registration period from March 1, 2020, through March 20, 2020, for the FY 2021 H-1B numerical allocations. The agency released the following details:
- During this timeframe, H-1B cap-subject petitioners, including those eligible for the advanced degree exemption, seeking to file a FY 2021 H-1B cap petition must first register electronically with USCIS and pay the associated $10 H-1B registration fee for each submission.
- Prospective petitioners or their authorized representatives must electronically submit a separate registration naming each person for whom they seek to file an H-1B cap-subject petition. Duplicate registrations are prohibited.
- As described in the H-1B registration final rule, if more than a sufficient number of registrations are received, USCIS will randomly select the number of registrations projected as needed to reach the FY 2021 H-1B numerical allocations after the initial registration period closes and notify registrants with selected registrations no later than March 31, 2020.
- Prospective petitioners with selected registrations will be eligible to file a FY 2021 cap-subject petition only for the person named in the registration and within the filing period indicated on the eligibility notice.
- Employers will be notified by USCIS of the exact amount of time allowed for filing the
H-1B petition, which will in all cases be at least 90 days but may be longer at the discretion of USCIS. Employers will have the ability to file their petitions as soon as eligible (i.e., by April 1) to allow the beneficiary to obtain cap-gap, if required.
- USCIS may determine it is necessary to continue accepting registrations, or open an additional registration period, if it does not receive enough registrations and subsequent petitions projected to reach the numerical allocations.
The Alliance of Business Immigration Lawyers recommends a thorough evaluation of any potential H-1B petition even before submitting the registration. For example, there ought to be preliminary discussions on education credentials, occupational classifications, wage levels, job descriptions, proving the specialty occupation, and establishing the nexus between the petitioner and third-party sites all before submitting a registration. It would be most unfortunate for an employer to be notified of a selection only to be later advised that their H-1B petition would likely be denied due to a degree or specialty occupation issue.
Trump Administration Considering Expanding Travel Ban to More Countries, Insiders Say
According to reports, the Trump administration is considering a substantial expansion of its travel ban to more countries, possibly seven. The plan has not yet been finalized, and a draft being circulated does not indicate which countries may be included. People familiar with the draft plan said information could be released publicly, as part of election-year efforts, around the third anniversary of President Trump’s first travel ban announced on January 27, 2017.
Details: News article is here.
Save the Date for the 16th Annual Klasko Spring Seminar! Registration is now open for the seminar which will take place at the Union League of Philadelphia on Wednesday, April 22, 2020. Click here for details and to register.
IN THE NEWS
Jordan J. Gonzalez
In this Law360 article, associate Jordan Gonzalez outlines what proposed changes are coming for employment-based immigration in 2020.
William A. Stock
Bill Stock was quoted in this Forbes.com article about the confusing health insurance proclamation from the Trump administration in November 2019.
Michele G. Madera
On January 17, 2020, Michele was featured on Ellevate Network’s Member Spotlight talking about her professional mission and values.
RECENT SPEAKING ENGAGEMENTS
Maria M. Mihaylova
On January 21, 2020, Maria spoke to international students at Arcadia University about employment options after graduation and post OTP
Andrew J. Zeltner | Jordan J. Gonzalez
Associates Drew and Jordan spoke to postdoctoral and graduate students at Princeton University about immigration options for employment after completion of their programs on January 24, 2020.
Michele G. Madera
Michele spoke at the Legal Marketing Association on January 30, 2020, sharing her experiences with networking and mastermind groups.
UPCOMING SPEAKING ENGAGEMENTS
Michele G. Madera
On February 5, 2020, Michele will be speaking to international students at Temple University about Navigating the Immigration System after graduation.
Andrew J. Zeltner
Drew will be speaking at the Philadelphia AILA Chapter’s 2020 CLE Conference about hot topics and legislative updates on February 28, 2020.
Elise A. Fialkowski
On February 28, 2020, at the 17th Annual AILA New England Immigration Conference, Elise will be speaking about how to prepare for audits and inspections in the Trump Era.
ICYMI: RECENT BLOG POSTS AND ALERTS
Comprehensive Regulatory Change to Employment-Based Immigration in 2020
Jordan Gonzalez summarizes the changes made to employment-based immigration and nonimmigrant visa categories for 2020 in this blog post.
CLIENT ALERT: Comprehensive Regulatory Change to Employment-Based Immigration in 2020
Jordan Gonzalez covers the comprehensive regulatory change to employment-based immigration in 2020 in this client alert.
EB-5: 2020 and Beyond
Ron Klasko covers the most significant changes to the EB-5 program in over 10 years and more in this blog post.
Employers, Here Are 10 Things Your Immigration Counsel Should be Doing for You
This blog post gives you 10 things you should expect from your employment-based immigration lawyers.
Investor Choices Post-November 20: E-2 vs. EB-5
Ron Klasko’s first post in a trilogy of blogs addressing the E-2 visa option in light of the November 21, 2019, change in the EB-5 investment amount.
Top 5 Business Immigration Stories to Watch in 2020
Associate Lauren Berkowitz rounds up the top five employment-related immigration stories to watch out for in this article.
E-2 to EB-5: The Journey from Visa to Green Card
Ron Klasko’s second post in a trilogy of blogs addressing the E-2 visa optionthe E-2 visa option in light of the November 21, 2019, change in the EB-5 investment amount.
Citizenship by Investment Country Choices for E-2 Visa Applicants
Ron Klasko’s third post in a trilogy of blogs addressing the E-2 visa option in light of the November 21, 2019, change in the EB-5 investment amount.
For Martin Luther King Jr. Day, sixteen KILP staff members volunteered with City Year to improve and beautify John F. Hartanft school in North Philadelphia. From one KILP volunteer: “The event was very rewarding, not only did the team get a chance to bond together but we also got the opportunity to beautify a school.” This has become an annual event that staff members look forward to every January!
Stay Connected! Subscribe to our blog and follow us on Twitter, Facebook, and LinkedIn.
This newsletter was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers, of which Klasko Immigration Law Partners is an active member.