Author: Adam Frank, Esquire

I am an immigration attorney with over 20 years of experience. I was graduated from Brandeis University undergrad in 1990 and then spent a year traveling around Central America. In 1991 I began attending the University of Baltimore School of Law and was graduated in 1994. I began working in Immigration Law in 1998 when I joined a small law firm and, in 2000 opened my own firm with my law partner Ed Leavy. Sadly, Ed passed away in 2011. I am still a partner in my own firm with my current partner Brendan Delaney. Our firm is Frank & Delaney Immigration Law, LLC.

June Bulletin Out, Not Looking Good for EB-2 Dates

Just this week, the Department of State released its June 2024 visa bulletin. First, there has been no change in the Final Action Dates and Dates for Filing: The final Action Date is still January 15, 2023, and the Dates for Filing are still February 15, 2023. Unfortunately, the DOS also indicated as follows towards the bottom of the bulletin in the section in which they give a glimpse of the future:

High demand in the Employment Second category will most likely necessitate retrogression of the worldwide final action date (including Mexico and Philippines) in the next month to hold number use within the maximum allowed under the Fiscal Year 2024 annual limit. This situation will be continually monitored, and any necessary adjustments will be made accordingly.

So what does this mean? This means they are coming to the end of the quota for EB-2 immigrant visas allocated for this fiscal year. Once they run out, they can no longer allocate any immigrant visa numbers to anyone, so they must retrogress the category to a date on which they know no one is waiting for visas. So, in the short term, this means no forward movement for the rest of this fiscal year, and, most likely, there will be retrogression in June or July as well.

In the long term, this means that there are a lot of cases in the backlog, and this may not clear up quickly, and it may take longer for cases to become current than the current dates indicate (which is about 1.5 years). However, there are still too many unknowns to know exactly how much this will extend things. Hopefully, in the next fiscal year, starting on October 1, 2024, we will get a better idea from USCIS and DOS about the backlog and how long it will likely extend things.

As always, we will update you as new information becomes available. Please remember that this blog does not offer legal advice. If you need legal advice, consult a lawyer instead of a blog. Thank you.

New USCIS Fees will be in Effect as of April 1

USCIS has, at last, published the final rule creating the new filing fees for all application types. Before looking into some of the actual changes, here is some general information about the changes (these are facts and figures from USCIS):

In the past fiscal year, USCIS received 2 million more receipts than in previous fiscal years, for a total of 11 million receipts. Adjudicated 10 million cases to completion (more than ever before).
- Backlog went down by 15 percent.
Hired additional staff, currently at nearly 21,000 employees.
Backlog is currently at 4 million and needs additional funding to continue reduction efforts as receipts continue to rise.
The Final Fee Schedule is 14 percent less than the proposed rule due to a saving of nearly $730 million when taking into consideration efficiency measures.
Every fee in the final schedule is either less than or the same as that in the proposed rule.
For individual filers, the final rule generally limits newly established fees to no more than the increase in the Consumer Price Index since Dec. 2015, which was approximately 26% (although many such fees will increase by well under 26%).

Let’s take a look at some of the changes that are coming.

Employment Application Fees:

Family and Individual Application Fees:

Other Fee Changes:

As can be seen above, USCIS is offering a $50 discount on fees for applications that can be filed online and ARE filed online (however, if you are eligible to pay a reduced fee (such as on the N-400) there is no additional discount for filing online).
As can also be seen above, to address the costs of Asylum applications USCIS has instituted a new $600 asylum program fee to employers who file an I-129 or I-140 form. The new fee is discounted for nonprofit and small employers (25 or under FTEs)

Overall Impressions:

Individual fees:

For many individuals, they may see little to no increases, perhaps some fee decreases. This is true for most applications EXCEPT the I-485 process. There, if you are filing an I-485 and I-131 and I-765 the total fee would be $2330 for one adult as opposed to the current $1225. This is a huge jump and for large families will cause significant hardship. While it is true that, in many cases, it could just cause people not to file for the I-765 and I-131 without need, it is also true that many people apply for the I-765 for children solely to get a SSN so they can get deductions on their tax returns. USCIS should have a way to address this issue outside of the I-765 context. Also, restricting applicants’ ability to travel during the pendency of the I-485 simply because they cannot pay the large fee is also not a fair way of allocating the fee increases.

Employer Fees:

In terms of businesses, it is surprising that to cover costs for Asylum applications, USCIS would be charging employers an additional fee for that. They have already burdened them with the fraud prevention fee, the training fee, and now this fee. While most employers will still use immigration to get workers, because they have no choice, it does just add on to the burden that they are paying, and this time (unlike the fraud and training fees) it really has nothing to do with the employment process. At least they have reduced this fee for smaller companies and non-profits.

Conclusion

If you feel that the above fees are unfair or unduly burdensome we urge you to write to your Congressperson or Senator – urge them to review the fees AND to finally allocate funding to USCIS to cover some of their costs.

In addition, please do get in touch with me or my office if you have any further questions about the fees or their impact.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

H-1B Season Starting with Some changes

The H-1B Cap Filing season will reopen in March of this year with some significant changes. The USCIS is introducing organizational accounts and adjusting how the lottery is conducted to ensure fairness.

A. Organizational Accounts

For both non-cap filings and the fiscal year 2025 H-1B cap season, USCIS will introduce organizational accounts. These accounts will enable multiple individuals within an organization, such as a company or other business entity, and their legal representatives to collaborate on and prepare H-1B registrations. If an employee is selected in the lottery, the organizational account will also facilitate collaboration and online filing of the H-1B application and premium processing. However, those wishing to file their H-1B and H-4 together (with premium processing) cannot do so online and must continue using paper filings.

USCIS plans to launch these organizational accounts in February 2024, with online filing of Forms I-129 and I-907 to follow shortly afterward. In addition to streamlining the Form I-129 H-1B petition process, these changes should help reduce duplicate H-1B registrations and other common errors.

As part of their efforts to increase efficiency by standardizing processes and reducing costs, USCIS will also transition the paper filing location for Forms I-129 and I-907 from service centers to the USCIS lockbox.

B. Lottery Changes

USCIS is also overhauling the lottery process. In the past, each employer submitted registrations for each employee they were interested in sponsoring. Each submission was one entry in the lottery, which seemed fair.

However, last year it was revealed that certain companies were colluding to submit registrations for the same employees, thereby increasing the odds that each employee would be selected in the lottery. This resulted in hundreds of thousands of extra entries, benefiting these companies.

To prevent this, USCIS will now allow one entry per person, regardless of how many companies file a registration for that employee. This adjustment will ensure fairness and level the playing field.

C. Conclusion

The upcoming lottery season starts in just over a month. If you are interested in sponsoring someone for a cap-subject H-1B, you should start the process as soon as possible. Fortunately, this year the chances of having someone picked in the lottery are better than last year.

February 2024 Visa Bulletin Released

The February 2024 visa bulletin has arrived and there are some changes of note.

Before getting to the summary of the current bulletin, here is a little bit about what the Visa Bulletin is and the information it contains. Every person who becomes a permanent resident in the US is given an immigrant visa number. This includes all those overseas who go to the Consulate and are actually given an immigrant visa stamp in their passport as well as all those who file an I-485 in the US and are NOT given an actual immigrant visa stamp. The Visa Bulletin is a listing of where the Department of State and USCIS are in terms of handing out Immigrant Visas. Every permanent resident category is listed and a date is given (or a C for current) as to which cases can be filed in a given month. Those cases with priority dates PRIOR to the date listed in the visa bulletin can proceed to get an immigrant visa stamp overseas or to have their I-485s approved by USCIS in the US.

It should be noted that the visa bulletin now has two charts – Final Action Dates and Dates for Filing. The Final Action Date chart shows the dates for which immigrant visa numbers are actually available (so I-485s and consular processing cases which can be approved and an immigrant visa number granted). The Dates for Filing chart lists the dates in each category to alert the Consulates and USCIS as to where the Department of State feels the Final Action Dates will be within 6 months. This allows the Consulates to start working on cases that will become current over the next six months and gives USCIS the ability to allow people to file I-485 applications for cases for which the Final Action Date is not yet current but should be current in the near future. Every month, USCIS determines which chart people should use to determine if they can file an I-485 or not. For the month of January 2024, USCIS has determined that, for both Family and Employment-Based Categories, the Dates for Filing chart can be used. Now into the specifics of this months visa bulletin.

Family Based Cases:

F1: No Change
F2A: The Final Action Dates moved forward about 3 months to February 8, 2020. The Dates for Filing stayed at September 1, 2023. Considering where the Dates for Filing are, there should be more forward movement coming.
F2B: No Change
F3: No Change
F4: No Change

Employment Based Cases

EB1: Final Action Dates are still current for most of the world and still at same dates for China (July 1, 2022) and India (September 1, 2020)

EB2: Worldwide numbers moved forward about two weeks to November 15, 2022 (as did Mexico and the Philippines). India (March 1, 2012) and China (January 1, 2020) stayed at the same dates.

EB3: Most countries moved forward a month (Worldwide and Mexico and the Philippines to September 1, 2022 and India to July 1, 2012). China remained at September 1, 2020.

Final Action Dates: There were no movements in the dates for filing.

Not very much movement this month, however it is clear from the Dates for Filing that there should be significant forward movement for Worldwide EB-2 and EB-3 numbers shortly (at least 4-6 months hopefully).

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

Increased Visa Application Fees: A Deeper Look

In a follow-up to our previous blog post, the White House is currently reviewing a rule to update visa application fees for the first time since 2016. The implications of this increase, particularly for companies seeking to sponsor workers for employment-based visas, are significant and deserve a closer look.

Draft regulations released last year proposed an across-the-board fee increase of 40%. Notably, most of the new costs would be borne by companies sponsoring workers for employment-based visas. For instance, pre-registration fees for H-1B specialty occupation visas are set to rise to $215, the H-1B application fee from $460 to $780, the L-1A application fee to $1385, and the O-1 cost to $1085.

This proposal has received considerable attention. Nearly 8,000 public comments were submitted by businesses, individuals, and trade organizations. Many of these comments raised concerns about the significant new cost barriers that businesses and organizations, especially those in the arts, would face as a result of these increases.

The final rule has been sent to the Office of Information and Regulatory Affairs (OIRA) by the US Citizenship and Immigration Services for clearance. This is the last regulatory hurdle before the rule can be published in the Federal Register. The Biden administration is targeting April for the final fee schedule’s release.

As we continue to monitor these developments, it’s important to consider the potential impact on businesses and organizations that rely on foreign workers. The proposed increases could significantly affect their operations and bottom line. However it is possible that changes to the increases have been made in response to the comments – and hopefully at least some of the fees have been lowered. As always, we’ll keep you updated as more information becomes available.

As always, remember to get specific legal advice about your case from a lawyer, not a blog.

Immigration: Fueling the Positive Engine of the US Economy

Introduction:

Immigration has been a longstanding pillar of the United States, shaping the nation’s identity and contributing significantly to its economic growth. While debates around immigration policy can be divisive, recent articles highlight the positive effects that immigrants have on the US economy. From driving innovation to filling critical labor gaps, immigrants bring unique skills, talents, and entrepreneurial spirit that propel economic progress and job creation.

Job Creation and Entrepreneurship:

According to an article in Forbes, immigrants play a critical role in job creation and entrepreneurship. Immigrant entrepreneurs have given birth to some of America’s most successful companies, including tech giants Google and Tesla. A 2016 National Foundation for American Policy study found that more than half of the US-based startups valued at $1 billion or more had at least one immigrant co-founder. These companies not only generate employment opportunities but contribute significantly to tax revenues.

In addition, in another article in Forbes, they cite a new study which concludes that temporary work visas allow firms to expand and hire more U.S. workers, contrary to the arguments of immigration opponents. Economists find it is the latest in a series of recent studies that demonstrate the key premise of immigration restriction—that there is only a fixed number of jobs in the economy—relies on ignorance of economics.

Filling Labor Gaps:

The US economy relies on immigrant workers to fill labor gaps in industries such as agriculture, healthcare, and IT, which struggle to find sufficient native-born workers. As reported by The New York Times, the agricultural sector heavily relies on immigrant labor. Without immigrant farmworkers, the US agricultural industry would suffer greatly, leading to higher food prices and potential food shortages.

According to the article:

And the contribution of immigrants to America’s long-term growth is startlingly large. Since 2007, according to the Bureau of Labor Statistics, the U.S. labor force has increased by 14.6 million. Of these additional workers, 7.8 million — more than half — were foreign born.

Oh, and if these immigrants are taking away American jobs, how can the unemployment rate be near a 50-year low? In fact, we desperately need these workers, among other things because they will help us cope with the needs of an aging population.

And according to an article in Forbes:

Many employers say they could not operate their businesses and serve customers without access to H-2B workers. Jack Brooks, an owner of J.M. Clayton Seafood Co. in Maryland, told the _Washington Post_, “We need a long-term fix to survive.”

Boosting Innovation and Research:

Another article published by the National Foundation for American Policy discusses how immigrants drive innovation and research. The US has long been a global leader in cutting-edge technologies and scientific advancements. Immigrants, often highly skilled in STEM fields, contribute immensely to this success. The study found that immigrants were the inventors or co-inventors in more than 75% of patents granted to America’s top ten patent-producing universities.

According to an article in Forbes, which cites to the above study, in 2023, four of the six U.S. recipients of Nobel Prizes in medicine, chemistry and physics came to America as immigrants. The article goes on to say:

“Immigrants have been awarded 40%, or 45 of 112, of the Nobel Prizes won by Americans in chemistry, medicine and physics since 2000,” according to an analysis by the National Foundation for American Policy (NFAP). “Between 1901 and 2023, immigrants have been awarded 36%, or 115 of 319, of the Nobel Prizes won by Americans in chemistry, medicine and physics.”

Contributing to Social Security and Taxes:

Contrary to popular misconceptions, immigrants contribute substantially to the US economy, including Social Security and tax revenues. According to The Brookings Institution, immigrants filling jobs and starting businesses in the US contribute billions of dollars in taxes each year, supporting government programs and infrastructure development.

Another source, “Immigration is increasing, and it helps the country’s economic growth, a Stamford group says“, emphasizes how immigrant entrepreneurs significantly contribute to the local economic system. Immigrants, regardless of their legal status, also contribute to the tax system. The Social Security system holds nearly $2 trillion in contributions from immigrants who will not benefit from it. The article also indicates that the immigrant population has increased to 46 million, and undocumented immigrants pay approximately $11 billion in taxes annually. For those who villainize undocumented immigrants, and want to deport them all and stop the inflow, I ask – how will you keep Social Security afloat if you do that? No one politician has put forth any plan to replace this vital income to our Nation. As they say, people I glass houses should not thrown stones.

Conclusion:

Contrary to the negative rhetoric surrounding immigration, recent articles and studies emphasize the positive impacts immigrants have on the US economy. Immigrants contribute significantly to job creation, entrepreneurship, filling labor gaps, driving innovation, and generating tax revenues. The nation’s economic success relies on the skills, talents, and entrepreneurial spirit immigrants bring to the table. Recognizing and harnessing these positive effects can ensure a vibrant and prosperous future for the United States.

USCIS Is Raising Premium Fees to Account for Inflation Over the Last 3 Years

The USCIS Stabilization Act, passed on October 1, 2020 established the current premium processing fees and the authority for the Department of Homeland Security to adjust the premium fees on a biennial basis. While USCIS has not used this authority to change the new Premium Processing fees after they were introduced after that date, USCIS has decided that now is the time to increase those fee. They are increasing the premium processing fees USCIS charges for all eligible forms and categories to reflect the amount of inflation from June 2021 through June 2023 according to the Consumer Price Index for All Urban Consumers.

Before going into the actual fee increase, it is important to note that these increase will go into effect as of February 26, 2024. This means any application postmarked February 26, 2024 or later MUST include the new fees.

So what are the new fees? Below is a table put out by USCIS which shows what the new fees will be for each premium request type:

Form	Previous Fee	New Fee
I-129 Petition for a Nonimmigrant Worker	1. For H-2b or R-1: $1500 2. For All other I-129s: $2500	1. For H-2b or R-1: $1685 2. For All other I-129s: $2805
I-140 Immigrant Petition for Alien Worker	$2500 (Currently allowed for classifications E11, E12, E21 (non-NIW), E31, E32, EW3, E13 and E21 (NIW))	$2805
I-539 Application to Extend/Change Nonimmigrant Status	$1750 (ONLY allowed for Change/Extension of F-1, F-2, M-1, M-2, J-1, J-2, E-1, E-2, E-3, L-2, H-4, O-3, P-4, and R-2)	$1965
I-765 Application for Employment Authorization	$1500 (Currently only available for certain F-1 students with categories C03A, C03B, C03C	$1685

Premium Processing Fee Increases by Type

If this increase allows USCIS is able to handle its caseload and timelines for non-premium cases come down, without raising fees on all case types, then I think it is a good compromise – instead of raising all USCIS fees, it just raises a fee for a service that is not needed by most people. However, I fear that USCIS will still move forward with additional increases in the near future, putting the immigration process out of reach for more people.

The best way to avoid the increased fees is to file application well in advance of when needed. Of course USCIS limits this somewhat by only allowing you to file an application 6 months prior to the start date, but giving yourself enough time to file the application that far in advance can avoid the need for premium in at least some cases. Of course, because USCIS is taking so long to adjudicate most case types right now, it may not help. In these cases, the only choice may be to use premium. However, if you wish to discuss possible alternatives that may help you in your case, please do not hesitate to reach out to me.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

January 2024 Visa Bulletin is Out and Finally Some movement.

The Department of State released the new Visa Bulletin for January 2024 just yesterday. This blog post will try to provide a summary of any movement in this bulletin of relevance.

Family Based Cases:

For the most part there was not much movement. The Dates for Filing chart stayed the same, but there was only very little forward movement for most categories. The most suprising was that the F2A category for Spouses and Children of permanent residents backlogged MORE to February of 2019. While we cannot be sure what this means exactly, excpet that they received more requests for immigrant visas than they thought the would, we do know that the Date for Filing in this category still stayed at September 1, 2023. To me this means that, most likely, Department of State still feels that the category will move forward in the nearish future.

Employment Based Cases:

There was LOTS of movement in the Final Action Dates and some movement in the Dates for Filing for most categories this month.

EB-1: Final Action Dates: China moved forward almost 5 months to July 1, 2022; India jumped forward about 3 years to September 1, 2020.; and, The EB-1 worldwide numbers stayed Current. Dates for Filing: China moved forward about 5 months to January 1, 2023; India jumped about 2.5 years to January 1, 2021; and, as with the Final Action Dates, Worlwife numbers were current here as well.

EB2: Final Action Dates: Worldwide numbers moved forward about 4 months to November 1, 2022; China moved forward about 3 months to January 1 2020; and, India moved forward about 2 months to March 1, 2012. Dates for Filing: Worlwide numbers moved forward about 1.5 months to February 15, 2023; China moved forward about 5 months to June 1, 2020; and, unfortunately India stayed at May 15, 2012.

EB-3: Final Action Dates: Worlwide numbers jumped forward about 9 months to August 1, 2022; China moved forward about 8 months to September 1, 2020; and, India moved some (about 1 month) to June 1, 2012. Dates for Filing: China moved forward about 10 months, to July 1, 2021; All other areas stayed the same.

Further Guidance:

Unfortunately the Department of State once again gave no additional guidance with these numbers. We will update you as soon as we hear about any guidance that the Department of State gives out or when a new Visa Bulletin is published, whichever happens first.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

November 2023 Visa Bulletin: Not Much Change

The Visa Bulletin is like a monthly newsletter for immigrant visas. It tells us whether family and employment-based categories are current or backlogged. The Department of State (DOS) and USCIS team up to publish it every month. It’s has two charts: the Final Action Chart (shows priority dates that are current and available) and the Dates for Filing Chart (shows priority dates expected to become current during the fiscal year).

For October and November 2023, USCIS said to use the Dates for Filing Chart to figure out if family and employment-based adjustment of status applications can be filed. The November 2023 Visa Bulletin is mostly a copy-paste of the October 2023 Visa Bulletin, with a few exceptions we’ll get into.

II. Family-Based Case dates are stagnate; No More F2A Concurrent Filing

From September to November 2023, the family-based categories haven’t budged, except for F2A (spouses and children of permanent residents). Until recently, F2A was current on the Dates for Filing Chart, but that’s changed in FY2023. Now, the F2A category (for most countries) has a cutoff date of September 1, 2023, the same as last month, which means there can be no concurrent filing of the I-130 and I-485 applications in this category. The Final Action Date in this date is even farther behind at February 8, 2019.

III. Employment-Based Applications: Still Retrogressed

The October and November 2023 Visa Bulletins continued the retrogression that started with the May 2023 bulletin. Despite the belief that both categories would recover and become current in October, 2023, the EB-2 and EB-3 worldwide had and continue to have cutoff dates since the start of the new fiscal year on October 1, 2023, which is a first. The EB-3 worldwide Final Action Date moved a bit from May 2021 to December 1, 2021, but EB-2 worldwide is still stuck in July 2022. In the November 2023 Visa Bulletin, EB-2 worldwide Final Action Date moved forward by a week, from July 8, 2022, to July 15, 2022. The EB-2 worldwide Dates for Filing however stayed at January 1, 2023. EB-1 worldwide Final Action Date is current, but China and India are still experiencing retrogression.

Remember, this is just a high-level overview. For the full details, you’ll want to check out the actual Visa Bulletins or consult with a legal professional.

New Fiscal Year, New Visa Bulletin – Uncertain Backlogs

Below is a recap of what the October 2023 visa bulleting showed in terms of movement in all categories. It should be noted that this is the first visa bulletin for the new 2024 fiscal year.

A. FINAL ACTION DATES AND DATES FOR FILING FOR FAMILY-SPONSORED PREFERENCE CASES

Family based cases really held fairly steady this month. While there may have been a little movement forward in some areas, there is really nothing worth mentioning.

While we were hoping to see some forward movement in the F2A category (spouses and children of permanent residents) there really was not much. We are still hopeful that in the coming months there may be some additional movement in this category.

A. FINAL ACTION DATES FOR EMPLOYMENT-BASED PREFERENCE CASES

For the EB-1 Category (Extraordinary Ability, Outstanding Professor, etc.), the final action date came current for all countries EXCEPT: China (mainland) moved forward about two weeks to February 15, 2022 and India moved forward 5 years to January 1, 2017.

For the EB-2 Category (NIW, Master’s PERM cases), the final action date only moved forward about 1 week to July 8, 2022 for most countries (China moved forward to October 1, 2019 and India moved forward to January 1, 2012). We had initially thought that this date would move forward much quicker, but it appears that the Department of State is being a little more careful in its movements and is taking it slowly. Our hope is that this date keeps moving forward for most of the world. India and China may have some forward movement, but it is harder to say.

For the EB-3 Category (professional and skilled PERM) the final action date for most of the world moved forward almost 1.5 years to December 1, 2021 except for India (moved forward about 3 years to May 1, 2012) and China (moved forward about 4 months to January 1, 2020.

B. DATES FOR FILING OF EMPLOYMENT-BASED VISA APPLICATIONS

It is important to remember that the Dates for Filing fulfill two purposed. First, it is a date that USCIS MAY decide to use to allow those whose priority date is prior to the date listed to file an I-485 application despite the fact that no immigrant visa is available. Second, it is a way for the Department of State to show where they feel the Final Action Dates will be within the next six months. With that being said, lets look at where things stand.

For the EB-1 Category, most of the world is current. China is now at August 1, 2022, which shows that the DOS feels that there will be some forward movement over the next 6 months, but not that much. India, on the other hand, is now at July 1, 2019, so there may be some quicker forward movement for India.

For the EB-2 Category, most of the world is at January 1, 2023, which means that we could see some good forward movement very quickly in this category, however we will have to wait and see what usage looks like over the next couple of months to really know for sure. China is only about 3 months ahead of its final action date at January 1, 2020 and India is about 5 months ahead at May 15, 2012.

For the EB-3 category most of the world is at February 1, 2023, which shows that there will most likely be some strong forward movement somewhat quickly. Both India and China should see some moderate movements forward as their dates are August 1, 2012 and September 1, 2020 respectively.

Future Employment-Based Visa Availability for FY-2024:

Overall, there have been advancements in final action dates across most employment-based visa categories. These advancements reflect the availability of new visa numbers for FY-2024. However, the actual movement of dates will depend on visa demand and issuance patterns throughout the fiscal year – most especially the next two months.