New Administration Halts Implementation of Pending Regulations, Withdraws Travel Ban

The incoming administration has issued an order halting the implementation of all proposed rules that are not yet final for 60 days (so until March 20, 2021). This includes the DOL wage change rules as well as the USCIS changes to the H-1B process (see a description of these rule changes here). Hopefully, the rule changes will be withdrawn, but we will keep you updated on that.

Another USCIS change in terms of H-1B’s is now withdrawn. USCIS had a proposed amendment that had not yet been published in the Federal Register, which would have changed the rules in terms of the employer-employee relationship and third party placements (a description of the rule can be found here). However, the executive action by the Biden administration has automatically withdrawn all rules not yet published. Hence, this rule will not be implemented.

Additionally, through an executive order, the Biden administration has withdrawn the executive order and Proclamations that banned the entry of people from certain countries (mostly Muslim) and allowed for heightened scrutiny in many cases. In addition, the order has also included a provision requiring the Embassies to re-open cases denied because of these Executive orders and re-adjudicate them as well as ordering the Embassies to clear out their backlogs quickly. However, as of yet, the ban on issuance of immigrant visas and some temporary visas because of the Covid pandemic is still in place, as are the travel restrictions from Europe and other countries with high infection rates. If you have any specific questions about whether a particular order affecting your immigration or a family member is still in effect please contact me and I am happy to help.

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 and DOL re-issue new H-1B selection process and new Prevailing Wage calculations as Final Rules

Just this week, USICS and DOL issued new final rules that will take effect in 60 days. Before getting into the details of the rules, it is important to note that the new Biden administration has stated that it will halt implementation of new rules for at least 60 days (we do not know if this is added onto the already established start date or is from the date of the order – we will have to see) and may or may not revoke or revise the rules during that period. Also, the rules will probably face lawsuits as well so whether they are actually implemented or not remains to be seen.

A post describing the new laws in detail is here (for DOL Rule) and here (for USCIS rule) if you are interested in a more in-depth explanation. As a summary:

(1) the New H-1B registration policy would allow USICS to select cases based upon the salary being offered (favoring those with higher salaries) instead of purely a random lottery.

(2) the new DOL Prevailing Wage Regulations would raise the salaries at all levels of prevailing wage. However, DOL did amend the regulation a little so the current level 1 (which is at the 17th percentile of the wages) would be raised to the 35th percentile, level 2 (currently at 34th percentile) would be raised to the 53rd percentile, level 3, currently at the 50th percentile) would be raised to the 72nd percentile, and level 4, currently at the 67th percentile) would be raised to the 90th percentile. This means, basically, the new level 1 is almost equal to the old level 2 – that is going to be how much higher wages required under this new scheme will be across the board.

As soon as hear anything in terms of lawsuits or the new administration putting these new rules on hold, we will certainly let you know.

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.

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.

Important Update on Executive Order regarding H-1Bs for Canadians

510px-Flag_of_Canada_(Pantone).svgFor those from Canada, an important update on the Executive Order halting the issuance of H-1Bs.  If you are from Canada and do not require an actual H-1B visa in your passport, you are in luck.  CBP has confirmed that you are still able to enter via the Border to begin working on the H-1B and the executive order will not affect your ability to do so enter the US.

Please do call us with any questions.  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 Executive Order and Possible Furloughs at USCIS

executive_order__1_The US President issued a new executive order on Monday evening.  The order did several things.  First, it extended the April 22, 2020 order limiting the ability for those overseas to get immigrant visas.  Second, it expanded that order to include certain non-immigrant visas as well.  Lastly, it required USCIS and DOL to review processes and procedures regarding EB-2 and EB-3 cases.    Before providing a summary of the provisions, there are a couple points to highlight.

First, and most importantly, the non-immigrant visa suspensions affect only those NOT IN THE United States.  This is also true of the immigrant visa suspension.  Second, the J-1 visa suspension does NOT include all categories of J visas.  For example, the Research Scholar category, and the Visiting Scholar categories are NOT included in the suspension.  Lastly, those outside the US with a currently VALID H-1B visa may still be able to return on that visa as the suspension only halts the issuance of new visas.  Here is a slightly more expansive summary of the provisions:

On June 20, 2020, President Trump has issued a proclamation that suspends the entry of foreign nationals on certain employment-based nonimmigrant visas into the United States.

This Proclamation also extends, effective immediately, Presidential Proclamation 10014 issued on April 22, 2020 which suspended the entry of certain immigrants into the United States.

The Proclamation suspends the issuance of visas for those seeking entry pursuant to a(n):

  • H-1B visa and any foreign national accompanying or following to join them;
  • H-2B visa and any foreign national accompanying or following to join them;
  • J visa, to the extent the foreign national is participating in an intern, trainee, teacher, camp counselor, au pair, or summer work travel program, and any foreign national accompanying or following to join them; and
  • L visa, and any foreign national accompanying or following to join them.

The Proclamation will only apply to an individual identified above if they are:

  • Outside the United States on the effective date of the Proclamation;
  • Do not have a nonimmigrant visa that is valid on the effective date of the Proclamation; and;
  • Do not have an official travel document other than a visa (such as a transportation letter, boarding foil, or advance parole document), valid on the effective date of the Proclamation or issued thereafter permitting the individual to be admitted to the United States.

Exemptions:

The Proclamation will not apply to the following individuals:

  • lawful permanent residents;
  • spouse or child of a U.S. citizen;
  • any individual seeking entry to provide temporary labor essential to the U.S. food supply chain;
  • any individual whose entry would be in the national interest as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.

For the purposes of determining who is covered under the “national interest” exemption, the Proclamation directs the Secretaries of State, Labor, and Homeland Security to determine standards for those to whom such an exemption would be available, including any individuals who:

  • are critical to the defense, law enforcement, diplomacy, or national security of the United States;
  • are involved with the provision of medical care to individuals who have contracted COVID-19 and are currently hospitalized;
  • are involved with the provision of medical research at U.S. facilities to help the United States combat COVID-19;
  • are necessary to facilitate the immediate and continued economic recovery of the United States; or
  • are children who would age out of eligibility for a visa because of this proclamation or Proclamation 10014.

Discretion: The consular officer has discretion to determine if an individual is within one of the exempted categories outlined above.

Asylum Seekers: Asylum seekers are not included in the ban. The Proclamation states that it does not limit the ability of individuals to apply for asylum, refugee status, withholding of removal or protection under the Convention Against Torture.

Fraud: Individuals who circumvent the application of the Proclamation through fraud, willful misrepresentation or illegal entry will be prioritized for removal.

Additional Review: Within 30 days of this Proclamation’s effective date, and every 60 days after, while it and Proclamation 10014 are in effect, the Secretary of Homeland Security, in consultation with the Secretaries of Labor and State will make a determination as to any need to modify either proclamation.

COVID-19 Prevention: The Secretary of Health and Human Services will provide guidance to the Secretaries of State and Homeland Security concerning measures that will reduce the risk of those seeking admission to the United States introducing or spreading COVID-19 within the country. It is our understanding that this means individuals will be subject to a COVID-19 test before arrival.

Additional Measures:

  • Issue regulations or take additional actions to ensure that those who have already been admitted, or are seeking admission, on an EB-2 immigrant visa, EB-3 immigrant visa, or H-1B nonimmigrant visa do not limit opportunity for U.S. workers.

 

In addition to the above, USCIS announced that their revenues are down over 50% and that, unless Congress allocates more funding to the agency they will be required to furlough almost 70% of their staff, causing huge delays in adjudications if it were to occur.

If you have any questions, or wish to discuss the above, please do not hesitate to call or email me. 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.

Premium Processing Resuming

UnknownUSCIS announced last week that it was resuming premium processing as of June 1, 2020.  However, USCIS stated that it would phase in the ability to file premium processing on cases in order to ensure that the office was not inundated with new premium processing cases before it was fully up and running again.  To that end, USCIS announced the following schedule for getting Premium Processing back up and running:

June 1:   Premium Processing for all I-140s will begin

June 8:   All non-H-1B I-129 application filed prior to June 8th that are eligible for premium processing can be upgraded as well as cap-exempt H-1Bs filed prior to June 8th.

June 15:   All statutorily cap-exempt application filed on or after June 8th

June 22:   All I-129 and I-140s eligible for premium processing (i.e. normal premium processing resumes)

So, as of today, I-140s can be upgraded to premium processing (or I-140s just being filed can be filed as premium processing).  Please do remember that not all I-140s are eligible for premium processing. Specifically those filed as a National Interest Waiver, or as an Intra-Company transferee are NOT eligible for premium processing.

In terms of I-129 application, there are more exceptions there as well.  If you are unsure if your application is eligible for premium or if you require assistance in upgrading your application, please do not hesitation on contactingour office.

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.