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S.2603, The Relief Act, In The Season Of Hope; Two Proposed Regulations Likely To Become Law; December Visa Chart Movement And Prognostication; Stockwell Lives
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</h3><h4><i>by <a href=”http://discuss.ilw.com/articles/articles/392201-article-s-2603-the-relief-act-in-the-season-of-hope-two-proposed-regulations-likely-to-become-law-december-visa-chart-movement-and-prognostication-stockwell-lives-by-alan-lee-esq#bio”>
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Alan Lee, Esq.
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1. <strong>S.2603, The Relief Act, in the season of hope.</strong>
S. 2603, the Resolving Extended Limbo for Immigrant Employees and Extended
Families (RELIEF) Act is the best hope for equitable expansion and
distribution of immigrant visa numbers. The bill (introduced by Senators
Dick Durbin (D-Ill.) and Patrick Leahy (D-Vt.) on October 16, 2019)would
eliminate the family and employment green card backlog over five years in
the order in which the applications were filed; keep families together by
classifying spouses and children of LPRs (lawful permanent residents)
immediate relatives and exempting derivative beneficiaries of employment
based petitions from annual green card limits; protect aging out children
qualifying for LPR based on a parent’s immigration petition; lift the
country caps; and extend the “hold harmless” clause from HR 1044 exempting
immigrant visa petitions approved prior to enactment from the lifting of
country caps to petitions approved for five years after enactment.Yet there
is opposition as Sen. Mike Lee (R-Utah), the sponsor of S.386 (Senate
counterpart of HR 1044), the Fairness for High Skilled Immigrants Act which
would skew employment based second and third preference immigrant visas to
India-born without adding significant numbers and therefore backlog the
rest of the worldincluding China-born in these categories, reportedly
refused a broader debate on his own bill to address green card backlogs. At
this time, it appears that the best that can be hoped for is a relenting by
the Republicans who hold the Senate to allow S.2603’s proposals to be
considered in conjunction with S.386. Pressure on the Republican leadership
is the best way to bring about this result, and so communication with
Republican senators and espousing such consideration is strongly
<strong>One of two proposed regulations about to be law – fees.</strong>
USCIS is an agency funded by the fees that it collects, and so it will be
collecting more. It is almost a certainty that after a period of time for
comment, new and for the most part higher fees are the order of the day.The
proposed regulation with deadline for written comments by 12/16/19 – “US
Citizenship and Immigration Services Fee Schedule and Changes to Certain
Other Immigration Benefit Requests Requirements,” Federal Register, Vol.
84, No. 220, 11/14/19, includes the following fee changes:
· I-129 form $460 fee raised by category – for H-1 $560; for L-1 $815; for
O-1 $715; for TN $705.
· Premium processing will be changed from 15 calendar days to 15 business
· $85 biometrics fee will be eliminated in most situations.
· I-485 base fee for everyone including children will be $1120 including
the biometrics (a drop from the present $1225 for applicants between the
ages of 14-78). However,I-765 EADs (employment authorization documents) and
I-131 advance paroles will be separately charged with EADs costing $490 and
advance paroles $585. So an I-485 filing with EAD application will be
$1610; I-485 with advance parole application $1705, and a combination of
the I-485 with EAD and advance parole applications $2195.
· N-400 naturalization applications will go up to $1170; N-336 requests for
hearing on naturalization decision from $700 to $1755; and N-470
applications to preserve residence for naturalization purposes from $355 to
· I-589 asylum applications will be $50 and applicants will have to pay
$490 for initial EADs.
· DACA (Deferred Action for Childhood Arrivals) renewals will go up from
$495 to $765.
· I-212 applications for permission to reapply for admission into the US
after deportation or removal will be increased from $930 to $1040.
· I-290B administrative appeals or motions will rise from $675 to $705.
· I 539 applications to extend/change nonimmigrant status will go up from
$370 to $400.
· I-601 applications for waiver of the ground of excludability will go from
$930 to $985.
· I-601A applications for provisional unlawful presence waivers will move
from $630 to $960.
· I-751 petitions to remove conditions on residence will go from $595 to
· I-765 applications for employment authorization will rise from $410 to
· The USCIS immigrant fee which is paid after successful immigrant visa
interview at the consulates or embassies will drop from $220 to $200.
· Biometrics services where applicable will drop from $85 to $30.
The relative certainty of the fee hikes being implemented is reflected in
the fact that the author has never seen a request for higher fees rejected
in over 30 years of practice. There will undoubtedly be an outcry over the
proposal for asylum applicants to pay $50 to file I-589 applications, but
USCIS undoubtedly foresaw such a controversy, and so pitched a low fee just
to get its foot in the door.
Second of two proposed regulations more than likely to be law – asylum
Another proposed regulation more than likely to become law after the period
of comment and expected future court challenges upon implementation is
“Asylum Application, Interview, and Employment Authorization for
Applicants”, Federal Register, Vol. 84, No. 220, 11/14/19,with deadline for
comments by 1/13/20, which includes the following:
· The time to file for an EAD is increased from 180 days to 365 days, and
the discussion of the proposed rule on page 62389 refers to a separate
rulemaking proposal for the elimination of the requirement to adjudicate
the EAD application within 30 days.
· Those filing asylum applications after the one-year deadline are not
eligible for C8 employment authorization unless they qualify for an
exception for late filing or are unaccompanied alien children on the date
that the asylum application was first filed.
· Ineligible are also persons convicted of any aggravated felony, felony in
the US or any serious nonpolitical crime outside the US, convicted in the
US of certain public safety offenses including domestic violence or
assault; child abuse or neglect, controlled substances, or driving or
operating a motor vehicle under the influence of alcohol or drugs
regardless of how the offense is classified by the state or local
jurisdiction; and DHS will consider on a case-by-case basis in its
discretion aliens who have been convicted of any nonpolitical foreign
criminal offenses, or have unresolved arrests or pending charges for any
nonpolitical foreign criminal offenses, or who have unresolved domestic
charges or arrests that involve domestic violence, child abuse, possession
or distribution of controlled substances, or driving under the influence of
drugs or alcohol. For this purpose, DHS will require applicants to appear
at an ASC (Application Support Center) to provide biometrics for initial
and renewal applications.
· Employment authorization will end when there is a denial in the asylum
office, but will not where the case is referred to the immigration court,
and will terminate after a denial by the immigration judge, but will be
available to an alien during the appeal process at the BIA (Board of
Immigration Appeals), but prohibited during federal court appeals unless
the case is remanded for a new decision.
· Persons who come into the United States illegally will not be eligible
for C8 employment authorization unless they are able to establish good
cause – a reasonable justification for entering the US illegally as
determined by an adjudicator on a case-by-case basis. In those situations,
the alien must have presented himself or herself without delay to DHS,
indicated to a DHS officer an intent to apply for asylum or expressed a
fear of persecution or torture, and otherwise had good cause for the
illegal entry or attempted entry. Examples of reasonable justifications
provided include requiring immediate medical attention or fleeing imminent
In looking at the proposed rule, the main scope of challenge may be that it
unfairly restricts the right of the persecuted to seek meaningful asylum as
it denies applicants the right to legally work for at least a year or more
after filing for asylum, in effect making them rely upon their own
resources, those of family and friends or charitable organizations, or
forcing them to seek unauthorized work to survive. The counterargument is
that the rule will shut off to a large extent the magnet of economic
well-being as a major reason for coming to the US. Looking at the proposed
regulation as a whole, and that it mainly forestalls rather than completely
stops the right of employment authorization, it is the author’s opinion
that it is more likely than not that the proposal will ultimately be
implemented. However, that does not mean that interested parties should not
oppose the proposed rule through comment and later court challenges.
<strong>December visa chart movement and prognostication.</strong>
As we move into the third month of the fiscal year 2020, the visa chart for
December 2019 generally shows advances of one – two months in the final
action date chart for family based categories except for Mexico, and
employment-based categories generally advanced with worldwide moving one
and ½ months for EB-1 extraordinary aliens/outstanding
researchers/multinational executives or managers to 7/15/18, and becoming
unavailable for fourth preference certain religious workers and fifth
preference regional centers as there is not as yet new enabling
legislation. EB-1 China moved 3 ½ months to 5/15/17 while India’s EB-1
remained at 1/1/15. EB-2 advanced degree individuals from China moved three
months to 6/22/15 while India advanced two days to 5/15/09. EB-3 skilled
workers/professionals for China-born remained at 11/1/15 and India stayed
static at 1/1/09. EB-5 non-regional center investment immigration from
China advanced two weeks to 11/15/14 while India advanced three weeks to
1/1/18. USCIS confirmed that it will be using the dates of filing chart for
both family and employment cases for December. Dates of filing for
worldwidefamily-based cases generally advanced between three weeks-2 ½
months. For employment-based categories, EB-1 worldwide became current,
EB-5 for China moved four months to 5/15/15, and the rest of the chart was
the same as the filing dates for November without movement. Charlie
Oppenheim, Chief of the Department of State Visa Control and Reporting
Division, is warning that both EB-3 and EB-2 worldwide could backlog as
early as January 2020, and the American Immigration Lawyers Association
advises members to file any EB-2 and EB-3 worldwide adjustment of status
applications before the end of December.
USCIS issued a policy alert on November 21, 2019, that while sections
245(d) and 245(f) of the INA bar an alien lawfully admitted to the United
States for permanent residence on a conditional basis from adjusting status
under INA 245(a), the Board of Immigration Appeals in <em>Matter of Stockwell</em>, 20 I&N Dec. 309 (BIA 1991),held that INA
245(d) did not prohibit an alien whose CPR (conditional permanent resident)
status had been terminated from adjusting his or her status under INA
245(a), and was updating guidance to ensure consistent application of I-485
applications to register permanent residence or adjust status filed by
applicants whose CPR status was terminated. Mr. Stockwell had adjusted
status before the immigration court after being granted CPR status,
terminating the marriage one year later, marrying a second US citizen whose
visa petition was approved, and being served by an order to show cause and
notice of hearing as an alien whose conditional permanent resident status
had been terminated. The immigration judge and the BIA both agreed that the
implementing regulation clearly applied the bar in section 245(d) only to
aliens currently holding conditional permanent resident status. In the
USCIS policy manual guidance, the Service reiterated that the bar to
adjustment only applied to an alien in the United States in lawful LPR
status; referred to <em>Matter of Stockwell’s</em> holding; and stated in a
footnote that “The same is also true if the alien loses his or her CPR
status, for example, through abandonment, rescission, or the entry of an
administratively final order of removal.” The guidance notes that it is not
necessary that an immigration judge have affirmed USCIS’ decision to
terminate the alien’s CPR status before the alien may file a new adjustment
application, and that USCIS may adjust the status of an alien’s CPR status
which was previously terminated if 1.) the alien has a new basis for
adjustment; 2.) the alien is otherwise eligible to adjust; and 3.) USCIS
has jurisdiction over the adjustment application. A further footnote states
that if an alien’s adjustment application was denied before the effective
date of this guidance on November 21, 2019, the alien may file a new
adjustment application (unless he or she is still able to timely file a
motion to reopen or reconsider) for USCIS to adjudicate his or her
application based on the guidance.
This is the season for hope, and it would be fitting if positive action on
S.2603 in Senate hearings with S.386 could be taken before adjournment or
shortly after Congress comes back into session in January.
About The Author<br/>
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<b>Alan Lee, Esq.</b> is an exclusive practitioner of immigration law based in New York City with an AV preeminent rating in the Martindale-Hubbell Law Directory for 20+ years, registered in the Bar Register of Preeminent Lawyers, on the New York Super Lawyers list (2011-12, 2013-14, 2014-2015, 2015-2019), and recognized as a New York Area Top Rated Lawyer. He has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Epoch Times, Pakistan Calling, Muhasba and OCS; testified as an expert on immigration in civil court proceedings; and is a regular contributor to Martindale-Hubbell’s Ask-a-Lawyer program. His article, “The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis” was Interpreter Releases’ cover display article at the American Immigration Lawyers Association annual conference in 2004; his 2004 case in the Second Circuit Court of Appeals, Firstland International v. INS, successfully challenged Legacy INS’ policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof, although its central holding that the government had to notify approved immigrant petition holders of the revocation prior to the their departure to the U. S. for the petition to be able to be revoked was short-lived as it was specifically targeted in the Intelligence Reform Act of 2004 (which in response changed the language of the revocation statute itself). Yet Firstland lives on as precedent that the government must comply with nondiscretionary duties established in law, and such failure is reviewable in federal courts. His 2015 case, Matter of Leacheng International, Inc., with the Administrative Appeals Office of USCIS (AAO) set nation-wide standards on the definition of “doing business” for multinational executives and managers to gain immigration benefits.
‡ This article © 2019 Alan Lee, Esq.
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