Citizenship Backlogs at USCIS

Many of you may be wondering why it is taking so long to get your Citizenship approved.  Many people who filed a year ago, or more, were not naturalized prior to this year’s election, so were unable to vote.  What happened?  If you thought it was due to the Covid pandemic, you are only partially correct.

In 2016, when the current President came into office, a typical naturalization case took only about 5 months from the time it was filed to the time the person became a US Citizen.  That swelled to nine months or, in some areas, a year or more by 2019 (prior to the pandemic).  Not only did the timelines increase, but there was a backlog of approximately 300,000 cases prior to the pandemic.  While USCIS was able to reschedule most of the 100,000 or so cases that were unable to be interviewed due to the pandemic, that did little to alleviate the backlog of cases that were there previously or the new cases filed since the pandemic started.  That case backlog has steadily grown and continues to grow.

One of the main reasons for the increase in the backlog is the requirement that all cases be interviewed.  While naturalization cases always required an interview, the fact that a large number of new case types (I-485 cases based upon I-140s, etc.) now required an interview without any corresponding increase in officers conducting such interviews created an instant logjam.  In addition, USCIS is fully funded by user fees (the fees that immigrants pay for their applications) so there was also no corresponding increase in funding to help hire new officers to conduct more interviews.

While we are hopeful that the new, incoming President will eventually rescind this new interview requirement, there is no guarantee that this will happen, or that it will happen quickly.  Only time will tell.  However unless it is changed the backlog in Citizenship cases will, most likely, just continue to grow.

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. 

New H-1B and Prevailing Wage Regulations

As you may know, USCIS implemented new regulations on the H-1B process, and the DOL implemented new regulations on the Prevailing Wage process. While there is at least one Court Case pending seeking an injunction on both of these regulations, it is still worthwhile going through the major changed made by both these regulations

Prevailing Wage Regulations

First, in terms of the Prevailing Wage regulations, the simple result is that the prevailing wage will be going up quite a bit. The old system used the 17th percentile for level one. The new one uses the 45th percentile – quite a difference and resulting in higher wages for low-level workers. It should be noted that private wage surveys can still be used to show that the DOL Prevailing Wage is incorrect.

It is interesting to note that in justifying this increase, USCIS cites only one report – and that one report sites to only one instance where the current prevailing wage model MAY provide a wage lower than that actually prevailing in a given geographic area (and I say may because the example is not very clear nor does it seem to actually provide the correct information).

H-1B Regulations

For the H-1B regulations, there are several major changes.

  1. There will now have to be a direct relationship between the field of the degrees and the duties: While this may not sound restrictive, it is. This is USCIS’s way of trying to require sub-specialization. In other words, for example, you cannot say that a position would require an engineering degree – you would need to specify the specific engineering degree (mechanical, electrical, etc.) and show how that relates to the duties – same if you say that more than one such specialization would be ok – you need to show how each degree relates to the duties. General degrees are no longer acceptable as well
  2. Bachelor’s degree is always required: No longer can just show that it is usually required for the occupation/position, but you must show that it is always required for entry into the occupation or position. So positions that are listed as “usually” or “normally” requiring a bachelor’s will no longer be sufficient. Likewise,
  3. Provides a new definition of US Employer: This definition, among other things, will define the employer-employee relationship. It will allow USCIS to weigh the various factors as they will actually be in the position – in other words, the question is not whether the employer has the “right” to control the employee or the “right” to provide the instruments or tools for the employee to work, but whether the employer does or will actually do such things in the real world. It also lists additional factors they will look at to show that the person is actually being supervised by the sponsor and not another party.
  4. Contracts: Third-party placement will require contracts and will only be good for 1 year or the length of the contract – whichever is shorter. Also, the contract needs to list the requirements of the position as imposed by the third-party.
  5. Site Visits: If the third party refuses to allow a site visit, USICS can (and most likely will) deny or revoke the H-1B.

The above are the major, but by no means all, the changes made by the regulations. Many of the above changes were attempted by USCIS through various policy memorandum. However the Courts clearly stated that they could not make such changes via memo, so now USCIS is seeking to make those changes via regulations.

Lastly, it should be noted that both these regulations are currently in effect. USCIS and the DOL felt that they were of such importance that they required immediate implementation, forgoing the usual comment and revision period.

If you are affected by any of these changes, please set up a time to talk with me via the links on this webpage. We are happy to discuss how these regulations may impact you and ways to prevent such impacts.

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.

BREAKING: District Court Enjoins USCIS New Fee Rule

Today the US District Court for the Northern District of California enjoined DHS and USCIS from putting their new Fee rule into effect on October 2, 2020. The Court agreed with the plaintiffs that it was more likely than not that they would succeed plaintiffs their case showing that the acting Directors of DHS and USCIS lacked the authority to make new regulations or rules as they have never been confirmed by Congress.

The court made this a nationwide ruling – meaning that USCIS cannot put the new rule in place anywhere in the US. According to the Court because it was likely that they could show that the Acting Directors lacked the power, a nationwide injunction.

While the Government can still appeal to the Court of Appeals and/or the Supreme Court, at least for now, the new rule cannot go into effect.

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.

USCIS New Public Charge Rule and I-944 Form Back in Force

On September 11, 2020, the Second Circuit Court of Appeals limited the scope of the preliminary injunction on the USCIS new public charge rule issued by the New York State District Court. The Court of Appeals changed the injunction from nationwide to only applying to New York, and two other states in the jurisdiction of the Court (it was a little more complicated than that, but this was the result). When the New York District Court first entered its nationwide injunction, USCIS immediately stopped enforcement of the new rule and no longer required the new I-944 form. Because of the ruling of the 2nd Circuit Court of Appeals, there was speculation that USCIS would re-implement that rule. It took two weeks, but USCIS has finally re-implemented the public charge rule. In a statement put out yesterday, USCIS indicated that any case filed since the new rule was put out and before October 13, 2020, that did NOT include the I-944 and/or supporting documents would be issued a Request For Evidence for the documentation. Come October 13, 2020, however, any case received by USCIS without the I-944 and supporting documents would be rejected.

For those not familiar with the new rule, USCIS changed its longstanding public charge rule to expand the types of public support that could affect the ability of someone to show that they would not likely become a public charge. In addition, USCIS greatly expanded the documents required for it to make a determination on whether someone would become a public charge. Under the new rule, a new form, the I-944 form, was required for immigrants which required information on all assets and liabilities for each applicant as well as proof of health insurance, marketable skills, language skills, and credit score and report. Once USCIS had all the required information and documents it would balance the positive and negative factors to determine if it felt someone would likely become a public charge. In addition to the above, many of the non-immigrant forms also now include certain questions on public charge issues as well.

We will update you with any other changes or update to this rule. And 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.

Biden wants to Roll Back the Immigration Policy changes made by Trump. Will that be possible in his first four years?

There was a recent, very interesting article published by NPR that highlighted the problems that may be faced by the Biden administration (if he wins the election) in rolling back the changes implemented by the Trump administration. You can read the full article here.

While there were several possible barriers raised by the article that could stand in Biden’s way of changing such immigration policies, the biggest, and hardest barrier to break through, in my mind, is the culture that has been created at USCIS, ICE, CBP and other related agencies. According to the article:

“That isn’t something that’s a light switch. You can’t change culture within an organization that vast overnight,” says Angela Kelley, senior adviser to the American Immigration Lawyers Association. “So I agree that it’s going to be a long, long road.” 

CBP produced an ominous, fictionalized video on the Border Patrol’s YouTube channel that depicts a Latino migrant who had just escaped from agents, attacking and knifing a man in a dark alley. The video was released at a time when Trump has been stoking fears about violent immigrants at his campaign rallies. For an example of how the Border Patrol is marching lockstep with the White House, look to a video titled “The Gotaway,” posted earlier this month. 

NPR inquired why the video was made and why it was removed a week later before being re-posted. Border Patrol Chief Rodney Scott said in a statement that the video was produced “to enhance awareness that effective border security helps keep all Americans safe,” and it was briefly pulled because they misused copyrighted materials.

NPR, Morning Edition, September 14, 2020

Changing such a culture will take time. While changing those at the top will help change the policies the officers act under, getting those changes to be implemented by officers, and getting them to change their attitudes will take quite a while, especially at ICE and CBP. USCIS may be somewhat easier to crack as the officers there are not dealing with deportation or apprehending people on a daily basis and are not necessarily as hard lined (although, most likely, some are as well). Changing the policies at USCIS may be enough to allow officers to change the way they adjudicate cases without to much time passing.

Again, according to the article:

“I don’t think it’s realistic that Biden in four years could unroll everything that Trump did,” says Sarah Pierce, a policy analyst at the Migration Policy Institute, a nonpartisan think tank in Washington, D.C. 

“Because of the intense volume and pace of changes the Trump administration enacted while in office, even if we have a new administration, Trump will continue to have had an impact on immigration for years to come,” Pierce says.

NPR, Morning Edition, September 14, 2020

While, overall, it may take a long time to affect all these changes, I do think, that there are some basic policies that could be changed much quicker (in terms of USCIS). First, the requirement of an interview for all cases – that could be changed very quickly. In addition, some of the more hardline looks at H-1Bs could also be changed rather quickly, as could the removal of harmful Executive Orders that limit immigration. So there is a lot that could be done relatively quickly as well.

We must also remember, that, if Biden is able to get Congress on his side as well, and a new immigration law is passed, that could significantly increase the rate at which changes can be made both inside USCIS as well as inside ICE and CBP (if such a law limits their jurisdicition and ability to act inside the law).

Overall, it could take longer for many changes, especially those at the border to be fully put in place. While some changes, those that primiarily are implemented by USCIS, may be able to be implemented earlier. We shall see what happens in November and what happens in January, should there be a change of administration.

Possible new H-1B Regulations to Limit H-1Bs

It appears that the current administration will soon have USCIS issue a new regulation regarding H-1Bs.  There are three elements of the new regulation that are the most significant: 

1) The regulation will be published as an “interim final rule,” which would allow it to go into effect immediately without public input but also makes the rule more vulnerable to legal challenge;

2) The regulation will impose a new, restrictive definition of a “specialty occupation” for H-1B visa holders; and

3) The rule will make it more difficult for H-1B professionals to conduct work at third-party customer locations. 

The first part is making it an “interim” final rule.  The purpose for this is that it allows the rule to go into effect BEFORE comments are received, meaning that it will go into effect immediately upon being published.  The only real silver lining is that this also makes it more susceptible to challenge in the courts as the administration would have to justify skipping public comment (while the argument is it is not skipping it, just allowing the rule to go into effect first, in my mind it is the same as skipping public comment). 

The second part, the new definition of “specialty occupation” was not spelled out in the summary provided to the news sources.  However, most likely, it will be in line with the recent court cases that USICS lost in which it tried to limit the scope of specialty occupation to only occupations that ALWAYS require a bachelors degree, as opposed to those that USUALLY require a bachelors degree.  In addition the administration has also tried to limit H-1Bs to positions that only require a specific degree, as opposed to several degrees.  There are two situations that this comes into play:  First, when a so called “general” degree is required when there are specialty degrees in that area (for example, requiring an engineering degree as opposed to a mechanical engineering degree); The second is if the position could be filled by someone with, for example, a degree in Computer Science or Information technology.  USCIS has tried to limit both types by saying that they are not specialty occupations (but they have lost in Court in all those cases). 

Lastly, USCIS will most likely be trying to limit placement of H-1B employees of IT firms at other locations, as those have been the big cases in the news with H-1B violations.  However this could affect more than just IT companies, depending on the exact regulation.  USCIS has, in the past, tried to get itineraries and firm contracts for the entire period of the H-1B, which can be difficult for some companies that have the need for the person, but they are working on various contracts, etc. as needed.  USCIS may not accept them if the person is not specifically mentioned (something they attempted to do on some occasions as well). 

We will have to see what the final rule states, but it seems as though the current administration is going to try to ensure that the H-1B program has limited use in the near future.  We will update you as we learn more.

DHS Looking at Expanding Use of Biometrics as well as adding new Biometrics

DHS this week indicated that it was going to propose a rule expanding the use of biometrics in immigration cases. Currently, in cases in which background checks are required, DHS (and, by extension USCIS) requires biometrics (fingerprints and photos at this point) to be taken at the Application Support Centers across the US. The new rule would allow USCIS to begin capturing biometrics for ANY and all immigration cases it deems fit. In addition, it would expand the biometrics that are allowed to include DNA samples, iris scans, and any new technologies developed. Also (as if the above was not enough) the new rule would also remove any age limit on such collection (currency those under 14 do not have to have biometrics taken).

First, it is important to note that USCIS charges for taking biometrics. Most likely, if there are more types of biometrics being taken, that fee will go up and more people will be forced to pay for it. Second, no real reason was given for the increase in biometrics. Most likely it will be stated that they are trying to fight against fraud, etc. however there has certainly been no increase in immigration fraud and it remains extremely rare. Expending so much time and effort to fight something so small seems counter-intuitive. It seems much more likely that they feel such measures, especially the capturing of DNA information, will put up more barriers to people seeking to immigrate to the US. Unfortunately, this will affect ALL immigrants and non-immigrants who will be forced to pay for and give more biometrics information. It may also affect US Citizens who could be forced to give DNA information as well if they are sponsoring certain immigrants (to prove relationship). Again, USCIS already requires DNA samples in cases in which there is a likelihood of fraud (either the documentation submitted makes it appear as such or the Country in question has a record of allowing fraudulent documents). Why they need to expand this ability to other cases in which there is NO indication of fraud does not make sense. This is similar to the expansion of immigration interviews to ALL cases (when it use to be mainly used just for family-based cases). In the case of interviews, the explanation given was also to counter fraud (when there was very little fraud in employment-based cases to begin with). This policy has been put in place for several years now, however, there has been NO change in the number of fraudulent cases and no evidence that the policy has done anything to help in cutting down fraud. The problem with both these cases is, as stated above, that the goal seems more to slow down the process or frighten people off from using the process than it does to look for and weed out fraud.

In addition to the above, this would also add even more barriers to an already overtaxed agency to carry out its mission and resolve cases in a reasonable period of time. Timelines for cases have been steadily increasing and adding in the need to take more and more biometrics will slow down the process even more, creating bigger backlogs.

Here is the link to the news article that broke the story, which has since been picked up by others in the press:

https://www.buzzfeednews.com/article/hamedaleaziz/trump-immigrant-biometric-info-applications

Time will tell whether the current administration will actually be able to implement the policy and, even if they do, whether the next administration will continue the policy.

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.

September Visa Bulletin Summary

Overall dates are moving forward, but there are some noticeable categories that are lagging behind and not progressing as much, this includes Employment Based Third Preference which doesn’t move forward at all this month. Below is a summary of movement in most categories

Family Based Categories

F1: Moved forward one months to September 15, 2014 for most of the World EXCEPT  Mexico (moved forward about 2 weeks to January 8, 1998) and the Philippines (moved forward 3.5 months to December 15, 2011).

F2A: Remained Current for the World.

F2B: Moved forward one month to July 8, 2015 for most of the World EXCEPT  Mexico (moved forward about two weeks to April 8, 1999) and the Philippines (moved forward 4 months to August 1, 2011).

F3: Moved forward about two weeks to June 15, 2008  for most of the World EXCEPT  Mexico (moved forward two weeks to August 1, 1996) and the Philippines (moved forward 3 months to February 15, 2002).

F4: Moved forward about three weeks to September 22, 2006 for most of the World EXCEPT  India (moved forward about 2 weeks to March 8, 2005), Mexico (moved forward about 1 week to June 22, 1998) and the Philippines (moved forward 4 months to January 1, 2002.

Employment-Based Preference Categories

EB-1:  Remains CURRENT for most of the world EXCEPT China and India (moved forward about 1 month to  March 1, 2018). Currently India and China are at the same date as they are using the otherwise unused visa numbers from the EB-1 category, as other countries are well below normal usage, as well as visa number falling up from the EB-5 category (i.e. unused visa number from EB-5 fall up to the EB-1 category).

EB-2:  Stayed Current for most of the world EXCEPT China (stayed at January 15, 2016) and India (stayed at July 8, 2009). As EB-2 visa numbers are being used and it appears that all visas in this category will be used by the end of the fiscal year, no movement forward was made.

EB-3: Stayed backlogged to April 1, 2019 for most of the world EXCEPT China (stayed at February 15, 2017) and India (stayed at October 1, 2009).

Please contact us with any questions or concerns.  And 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.

USCIS TO RAISE FEES

USCIS issued its final rule to up fees starting October 2, 2020. According to the American Immigration Lawyers Association:

On August 3, 2020, USCIS published a final rule that significantly increases certain immigration and naturalization benefit request fees. The rule, which will be effective October 2, 2020, also removes certain fee exemptions, changes fee waiver requirements, alters premium processing time limits, and modifies intercountry adoption processing. Any application, petition, or request postmarked on or after October 2, 2020, must be accompanied with the fees set forth in the final rule.

The final rule increases USCIS fees by a weighted average of 20 percent, adding new fees for certain immigration benefit requests, establishing individual fees for nonimmigrant worker petition type, and limiting the number of beneficiaries for certain forms. DHS stated that it made no changes in this rule in response to its current budget shortfall or the pandemic.

By dramatically increasing filing fees for a broad range of benefit requests, reducing fee exemptions and restricting fee waivers, DHS has modified established agency practice of maintaining more reasonable filing fees for certain applications and petitions so that cost was not a barrier to obtaining an immigration benefit. In applying a “beneficiary pays” principle to those who are the beneficiaries of most immigration benefits, the agency has dramatically increased the cost of obtaining and maintaining legal status.

AILA – Summary of Final Rule

Below is a highlight of the major changes made:

Adjustment of Status. Removes the reduced Form I-485 filing fee for children under the age of 14 filing with their parent. A standard Form I-485 fee of $1,130 will apply to all applicants.

Requires separate fees for Forms I-765 ($550) and Forms I-131 ($590) filed in connection with applications for adjustment of status, more than doubling the total cost of filing an adjustment of status application package to $2,270.

Provides a $50 reduction in the fee for Form I-485 filed in the future for principal applicants who pay the $50 fee for Form I-589 and are subsequently granted asylum.

Electronic Filing. Provides that the fee for forms currently available for online filing with USCIS and filed online will be $10 lower than the fee for the same paper forms.

Premium Processing. The final rule also lengthens the timeframe for USCIS to take an adjudicative action on petitions filed with a request for premium processing from 15 calendar days to 15 business days.

The Premium Processing fee can automatically increase annually without notice and comment rulemaking if the fee increase will only be in accordance with the increase in the Consumer Price Index.

Employment Based Immigration. Creates separate fees and forms for each visa classification filed on Form I-129, with fees increasing as much as 75 percent for an L-1 petition.

USCIS is limiting the number of named beneficiaries to 25 that may be included on a single petition for H-2A, H-2B, H-3, O-2 P, Q, E, and TN workers.

PL 111-230 fees for employers with significant numbers of H/L employees (“50-50 rule”) will now also apply to H-1B and L-1 extension petitions, in addition to initial petitions. It will not apply to amended petitions that are not seeking an associated extension request.

Naturalization. The filing fee for a Form N-400 will increase 83 percent from to $640 to $1,170. The final rule eliminates the reduced Form N-400 fee option for certain applicants.

Please contact us with any questions on the above fee increases. And 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.

DOS to begin Reopening Consulates

ea34b40d2ef21c3e81584c04e4444f96fe76e7d610b9114291f6c1_1921.jpgThe Department of State announced yesterday that it would begin a phased reopening of Consulates across the world.  Please note, they will NOT be reopening all consulates at once, and cannot give specific dates as to when certain consulates will open or not.  Each Consulate will announce their plans and re-opening dates on their individual websites.  Please see below for the full press release:

 

Phased Resumption of Routine Visa Services

Last Updated: July 14, 2020

Phased Resumption of Routine Visa Services

The Department of State suspended routine visa services worldwide in March 2020 due to the COVID- 19 pandemic. As global conditions evolve, U.S. Embassies and Consulates are beginning a phased resumption of routine visa services.

The resumption of routine visa services will occur on a post-by-post basis, in coordination with the Department’s Diplomacy Strong framework for safely returning our workforce to Department facilities. U.S. Embassies and Consulates have continued to provide emergency and mission-critical visa services since March and will continue to do so as they are able. As post-specific conditions improve, our missions will begin providing additional services, culminating eventually in a complete resumption of routine visa services.

We are unable to provide a specific date for when each mission will resume specific visa services, or when each mission will return to processing at pre- Covid workload levels. See each individual U.S. Embassy or Consulate’s website for information regarding operating status and which services it is currently offering.

Unfortunately, this is about all the information the Department of State gave.  Please do note that ALL Executive orders regarding immigration that have not yet expired are still in place.  This includes the travel ban, the H-1B, J-1, visa ban as well as the immigrant visa bans as well as any Covid-19 bans.

Please call us with any questions.  And 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.