In our continuing series of reports, Charles (“Charlie”) Oppenheim, Chief of the Visa Control and Reporting Division, U.S. Department of State, shares his most recent analysis of current trends and future projections for the various immigrant preference categories with AILA (the American Immigration Lawyers’ Association).

Below are highlights from the most recent “check-in with Charlie” (August 12, 2016), reflecting his analysis of current trends and future projections for the various immigrant preference categories.

This month, Charlie offers his analysis of current trends and future projections for the various immigrant preference categories through the remainder of this fiscal year (September 2016) and the beginning of the next (October 2016).                                                                                                           

Check-in with DOS’s Charlie Oppenheim: August 12, 2016

EB-2 and EB-3. Presently, the EB-2 Worldwide final action date lags behind EB-3 Worldwide, but this should not create the same EB-3 downgrade phenomenon we have witnessed in recent years in the China EB categories. According to Charlie, members should expect EB-2 Worldwide to become current again in October. Despite the uncharacteristically low demand in EB-3 Worldwide, members should not expect it to become current. Charlie is concerned that there is demand in this category that has not yet materialized.

As predicted last month, the final action date for EB-2 China and EB-3 China will remain the same through the remainder of this fiscal year. In October, EB-2 China is expected to advance to a date in late 2011 or early 2012. EB-3 China’s final action date is expected to reach late 2012 or early 2013. Therefore, it is likely that we will once again see the EB-3 downgrade phenomenon next fiscal year, at least until the increase in EB-3 China demand generated by the downgrades levels out demand between the two categories.

In October, EB-2 India will likely move to a date in early 2007. Slow movements of a few weeks at a time are anticipated for EB-3 India, which is likely to remain at a 2005 date in October. EB-3 India is the last category in which Charlie still has strong visibility (from the summer 2007 adjustment of status filings) into pre-adjudicated demand. As a result, there has not been any erratic movement in the final action date for this category in recent years.

EB-5 China. Charlie is unable to make any predictions at this time as to where EB-5 China dates will fall in the next fiscal year. He expects to have better information by late September to mid-October.

EB-1. It is expected that EB-1 India and EB-1 China, which both had final action cut-off dates imposed late this fiscal year, will become current again in October.

Family-Based Projections. There are some favorable modifications to last month’s predictions for September in the family-based categories. While Charlie thought the final action dates for F-2A and F-4 might require retrogression in September, an increase in returned unused visa numbers in July, and weak demand for these categories has allowed Charlie to hold these dates for the remainder of the fiscal year.

Charlie reports that the infusion of FY 2017 visa numbers will make EB-4 India and EB-4 Mexico current in October. The final action date for EB-4 El Salvador/ Guatemala/Honduras should move to a date sometime in the summer of 2015, and possibly beyond. Given the high applicant demand in this category for El Salvador relative to the other two countries, it is possible that we will see a more advanced final action date for Guatemala and Honduras.

Consistent with Charlie’s predictions last month, F-4 Worldwide advanced slightly. There were also minor advances in all of the family Worldwide categories, and all of the F-2B categories with the exception of F-2B Mexico. F-3 and F-4 Mexico and F-3 and F-4 Philippines also crept slightly ahead to close out the fiscal year.

The family-based categories tend to advance more consistently as the majority of demand in these categories materializes at consular posts. While we expect movements into the next fiscal year to also remain relatively steady, Charlie will continue to comply with the Administration’s Visa Modernization Proposal by advancing the dates as aggressively as possible in the first three quarters of the fiscal year. While doing so helps to ensure that number use is maximized, it also results in few numbers being available for use in the final quarter, which can cause retrogressions, such as those experienced in the F-4 China and India preference categories.

Filing Dates. As we approach the one year anniversary of the new Visa Bulletin format, Charlie did not have any predictions in terms of “filing dates” as he had not yet met with the CIS Ombudsman’s Office at the time of this discussion.

You may access the September 2016 Visa Bulletin here and the August 2016 Visa Bulletin here.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP. Alka is situated in Fox Rothschild’s Roseland, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

In our continuing series of reports, Charles (“Charlie”) Oppenheim, Chief of the Visa Control and Reporting Division, U.S. Department of State, shares his most recent analysis of current trends and future projections for the various immigrant preference categories with AILA (the American Immigration Lawyers’ Association).

Below are highlights from the most recent “check-in with Charlie” (July 20, 2016), reflecting his analysis of current trends and future projections for the various immigrant preference categories.

This month, Charlie examines the final action date movements in the August 2016 Visa Bulletin and his analysis of current trends and future projections for the various immigrant preference categories.

Check-in with DOS’ Charlie Oppenheim: July 20, 2016

Reflections as We Approach the End of the Fiscal Year. The unveiling of the August Visa Bulletin leads us to contemplate possible Final Action Date movement for September, the final month of the fiscal year. In this month’s column we will review the August Bulletin, and consider predictions for September and prospects for recovery in key retrogressed preference categories in Fiscal Year (FY) 2017. Next month, we will cover predictions for Filing Date movement as we enter FY 2017.

EB-4 and Certain Religious Worker (SR) Preference Categories. The January 1, 2010 cut-off date which was imposed earlier this year for EB-4 El Salvador, Guatemala, Honduras, and Mexico will remain through September, the end of the fiscal year. The imposition of a cut-off date for these countries is largely due to high demand for Special Immigrant Juvenile visas. A January 1, 2010 cut-off date will also be imposed on EB-4 India starting in August, consistent with Charlie’s predictions.

Though EB-4 Mexico and EB-4 India will become current again in October, the prospects for a full recovery for EB-4 El Salvador, Guatemala, and Honduras are much less likely. A 2015 cut-off date will likely be established in these categories for October, with date(s) moving forward slowly through the next fiscal year. However, uncertainty surrounding the movement of the EB-4 Final Action dates for these Central American countries remains, given the lack of visibility into the number of adjustment of status filings that were received in April 2015, prior to the establishment of the cut-off date in May.

Family-Based Projections. In September, most of the family-based categories will likely hold or retrogress from where they are in August. Only F-4 Worldwide has the potential to advance in September. Charlie expects a full recovery from retrogressions in all of the family-based categories in October, with the exception of F-4 China and F-4 India which will take some time. Beginning in November 2015, beneficiaries of F-4 China and F-4 India started responding to NVC Agent of Choice letters in larger numbers, which has given Charlie better visibility into the demand in these categories, but ultimately resulted in the retrogression of these cut-off dates.

F-4 China, which previously shared the F-4 Worldwide Final Action date until retrogressing in June to January 1, 2003, will remain at that cut-off date through August. While this category will not advance in September, there should be a full recovery to the prior Final Action date of July 22, 2003 by November.

Similarly, F-4 India also shared the F-4 Worldwide Final Action date until it retrogressed in June. Charlie continues to predict that the Final Action date for F-4 India will remain at January 1, 2001 through September. A full recovery of this category to the Worldwide level will not happen in October. Given the high level of demand, the Final Action date should advance to around November 2002 in October, with a full recovery unlikely to happen prior to June 2017.

Charlie will be watching the F-2A and F-3 preference categories very carefully. Both categories are likely to retrogress temporarily in September, and then return to their respective August 2015 Final Action dates in October.

EB Preference Categories. The Final Action date of January 1, 2010 that was imposed in June for both EB-2 and EB-3 China remains the same in August with no forward movement in either of these categories expected this fiscal year. Although Charlie had hoped for more dramatic forward movement, EB-3 India should advance modestly into a 2005 Final Action date in September. EB-2 India will continue to track one week ahead of the EB-3 India Final Action date in September.

EB-3 Worldwide has been hovering close to “current” for some time, and is expected to do so through at least October.

A February 1, 2014 Final Action date for EB-2 Worldwide was imposed in the August Visa Bulletin, with the hope of holding number use to within the EB-2 annual limit. That date should hold at February 1, 2014 in September and is expected to fully recover to “current” in October. Although Charlie predicts the EB-2 India and EB-2 China cut-off dates will advance in October, they will not fully recover at that time. It is hoped that they will recover fully as soon as possible, with EB-2 China possibly recovering as early as November.

October Final Action dates for the EB-5 Regional Center categories remain uncertain as that category will sunset unless Congress acts prior to the end of the fiscal year. In setting cut-off dates for EB-1 China and EB-1 India, Charlie hoped to avoid having to establish a cut-off date for EB-1 Worldwide. Charlie expects that EB-1 China and EB-1 India will become current again in October, or November at the latest.

You may access the August 2016 Visa Bulletin here and the July 2016 Visa Bulletin here.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP. Alka is situated in Fox Rothschild’s Roseland, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

Below is an article that I wrote which appeared in the Pittsburgh Post-Gazette on Sunday, July 31st. I try to give some context to the current immigration enforcement and reform discussion that we are having as a nation.

http://www.post-gazette.com/opinion/Op-Ed/2016/07/31/The-lack-of-immigration-reform-threatens-to-rob-Pittsburgh-and-the-country-of-talent-and-economic-growth/stories/201607310121

 

The U.S. Department of Justice recently announced significant increases in fines for immigration-related paperwork violations, in an interim final rule slated to take effect this fall. Harsher financial penalties come as part of the federal government’s recently-expanded efforts to ensure that employers comply with strict verification, recordkeeping, and document retention requirements, with regard to the Form I-9 (Employment Eligibility Verification).

Fines for employers who commit procedural or substantive errors when completing I-9s will now be set at a maximum of $2,156 per violation, nearly doubling the current maximum penalty of $1,100 per I-9. Additionally, companies found to employ undocumented workers can now expect to pay fines of up to $4,313 for an initial offense and up to $21,563 for each individual violation thereafter. The increased financial penalties will be assessed after August 1, 2016, for employers whose associated I-9 violations occurred after November 2, 2015.

All employers are required by law to review any employee’s original proof of identity and employment eligibility and complete the Employment Eligibility Verification Form I-9 within three days from the first date of employment. Though a seemingly simple form to complete, the complex requirements of federal immigration laws, intense government scrutiny, and simple human error often lead to considerable financial liability.

Even law-abiding employers who strive to comply with Employment Eligibility Verification rules and do not deliberately hire undocumented workers are subject to government scrutiny and could face steep fines if inspected. Beyond paperwork errors, employers may be fined for failing to retain their I-9s within the mandatory retention period.

Employers are subject to investigation by any number of agencies and investigatory units within the Department of Homeland Security, the Department of Labor, as well as the Justice Department.

Employers can, however, prevent steep financial liability by having counsel conduct internal audits, and by correcting mistakes on forms, where possible. Employers are also wise to establish a standardized I-9 training program and implement best practices for verification, recordkeeping, and retention, thereby greatly reducing the risk—and the prospective expense—of any future liability.


Scott E. Bettridge, a partner in the firm’s Immigration Practice in Miami, co-authored this post.

The Canada Border Services Agency (“CBSA”) issued a message on May 10, 2016 to all Legal Permanent Residents (“LPRs”) of the U.S. traveling to Canada by air.  CBSA advised that changes to entry requirements are now in effect. Below are the highlights:

  • Electronic Travel Authorization (“eTA”) is a new Canadian entry requirement for visa-exempt foreign nationals traveling to Canada by air.  As a U.S. permanent resident, you are expected to have an eTA when flying to or transiting through Canada, effective on March 15, 2016.  You do not need an eTA when you enter by land or sea.
  • Visa-exempt foreign nationals who fly to or transit through Canada are expected to have secured eTA first.  Exceptions to this requirement include U.S. citizens and travelers with a valid Canadian visa (see full list of exemptions).  U.S. Legal Permanent Residents must have an eTA before boarding a flight to Canada as of March 15, 2016.
  • Until September 29, 2016, travelers who do not have an eTA can board their flight, as long as they have a valid travel document, such as a passport and meet other requirements.  The Border Services officers can admit travelers without an eTA into the country, but they will remind travelers of the new requirement.
  • LPRs traveling to Canada can apply for an eTA, which costs $7 Canadian. The application process takes a few minutes and is linked to your passport and valid for five years or until the passport expires, whichever comes first. This means that you can travel to Canada repeatedly within this period without having to reapply for an eTA. You will need to travel with the same passport you used to apply for your eTA.
  • For LPRs enrolled into the NEXUS program, the passport used to apply for the eTA will need to be the same passport used when the LPR enrolled into the NEXUS program.  Otherwise, the LPR cannot continue to use the accelerated service through the NEXUS self-serve kiosks.  If you were issued a new passport since you joined NEXUS or used another document to apply, you must visit a NEXUS Enrolment Centre and have the passport that is linked to the eTA also linked to your NEXUS membership

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP. Alka is situated in Fox Rothschild’s Roseland, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

In our continuing series of reports, Charles (“Charlie”) Oppenheim, Chief of the Visa Control and Reporting Division, U.S. Department of State, shares his most recent analysis of current trends and future projections for the various immigrant preference categories with AILA (the American Immigration Lawyers’ Association).

Below are highlights from the most recent “check-in with Charlie” (June 9, 2016), reflecting his analysis of current trends and future projections for the various immigrant preference categories.

This month, Charlie examines the final action date movements in the July 2016 Visa Bulletin and his analysis of current trends and future projections for the various immigrant preference categories.

EB-4 and Certain Religious Workers (SR) Preference Categories. As previously predicted, and noted in the July Visa Bulletin, a cut-off date of January 1, 2010 will be imposed in July for EB-4 Mexico. This is the same cut-off date imposed earlier this fiscal year for EB-4 El Salvador, Guatemala, and Honduras. There will be no forward movement in these categories prior to the end of the fiscal year. Despite the cut-off date in these categories, it is expected that EB-4 Mexico will become current in October and EB-4 El Salvador, Guatemala, and Honduras should advance to a 2015 cutoff date. A more precise prediction of the cut-off cannot be made until pending demand in September is reviewed. Charlie predicts that a cutoff date for EB-4 India will need to be imposed for August.

Family-Based Projections. FB-4 China, which shared the FB-4 Worldwide final action date until retrogressing in June to January 1, 2003, will remain at that cut-off date through July. Last month, Charlie raised the possibility of advancement in FB-4 China before October. Of course, any forward movement this fiscal year would require a decrease in demand in the FB-1, FB-2, and FB-3 preference categories. Once there is an infusion of new visa numbers in October, it is expected that the category will recover to the prior cut-off date of July 2003 no later than November.

Similar to FB-4 China, FB-4 India recently tracked the FB-4 Worldwide final action date until it retrogressed in June . However, unlike FB-4 China, the final action date for FB-4 India will definitely remain at January 1, 2001, through September. Charlie predicts that FB-4 India will advance to the former July 2003 cutoff date early in the next fiscal year, but expects that recovery to happen more slowly than for FB-4 China. Charlie anticipates that the FB-4 India date will reach late 2002 for October, and may fully recover to July 2003 by the end of the calendar year.

China EB-2 and EB-3. In June, the final action date for both EB-2 and EB-3 China retrogressed to January 1, 2010. Charlie reminds us that there will be no forward movement in either of these categories this fiscal year.

EB-2 Worldwide and India. It is likely that a cut-off date will be imposed for EB-2 Worldwide by September due to sustained high demand. In May alone, 4,300 EB-2 numbers were used worldwide (including PRC and EB-2 India demand). The impetus for this demand is unclear; it is unlikely the result of EB-3 upgrades, since the EB-3 date has essentially been “current” for a long time. In May, Charlie allocated EB-2 numbers to more than 1,400 applicants with priority dates of 2014 and earlier.

Charlie anticipates EB-2 India’s final action date will be one week beyond EB-3 India through the rest of the fiscal year. Based on current usage, there should be sufficient available unused EB-3 numbers worldwide to enable moderate forward movement in India EB-3 in the month of September.

Cutoff Date for China and India EB-1 Expected by End of Fiscal Year. In May alone, Charlie received requests for approximately 4,000 EB-1 numbers worldwide (including China and India). Members should expect to see a cut-off date imposed for China EB-1 and India EB-1 this fiscal year in either August or September. Both categories are expected to become current again in October. A cut-off date will not be imposed for EB-1 Worldwide (i.e., rest of the world, besides India and China) this fiscal year.

 

You may access the July 2016 Visa Bulletin here and the June 2016 Visa Bulletin here.

___________________________

Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP. Alka is situated in Fox Rothschild’s Roseland, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

 

 

I thought I’d take a little different approach to this weeks blog post.  I saw a post about time/distraction management and it struck a chord with me.  We all struggle through our busy days trying to juggle a million different tasks, while trying to being responsive to calls/inquiries/emails/texts/etc. on a moment to moment basis.  Sometimes, we need to find time to focus on more involved, complex tasks, which is always a time management challenge.  I thought these suggestions (some of which I employ myself) were most helpful, so I thought I would share.

While many experts urge busy people to focus on time management to be productive, in today’s world it’s better to focus on distraction management.  Distractions are what really consume our days.  It takes our brains time to shift back and forth between tasks and to refocus on that task. Each time we are distracted we lose precious time. Plus, according to Carnegie Mellon University research, the distractions drain cognitive skills-yes, make us dumber!

Ergo, minimize distractions, increase productivity! So what are some things to try?

  • Get rid of that email pop-up notification in Outlook.
  • Reduce the number of notifications and alerts you receive on your smartphone.
  • Use the “Do Not Disturb” function on your smartphone during times you need to concentrate.
  • Don’t constantly check email. This is often a learned habit used to avoid doing more difficult work. Check it between tasks, not during one.
  • Unsubscribe from email listservs and newsletters that are no longer useful.
  • Create a daily list of the tasks you must get done that day. Be mindful of your goal of not allowing or creating disruptions during each task.
  • When starting a longer task, close your door even if just for 20-30 minutes to signal you are not to be disturbed.
  • Don’t leave Facebook or other social networks open on your Internet browser to reduce temptations to sneak a peek.
  • With these done, spend a week tracking your distractions and try to find several other ways to lessen your distractions and increase your productivity.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP. Alka is situated in Fox Rothschild’s Roseland, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

In our continuing series of reports, Charles (“Charlie”) Oppenheim, Chief of the Visa Control and Reporting Division, U.S. Department of State, shares his most recent analysis of current trends and future projections for the various immigrant preference categories with AILA (the American Immigration Lawyers’ Association).

Below are highlights from the most recent “check-in with Charlie” (May 9, 2016), reflecting his analysis of current trends and future projections for the various immigrant preference categories.

This month, Charlie examines the final action date movements in the June 2016 Visa Bulletin and his analysis of current trends and future projections for the various immigrant preference categories.

Family-Based Projections. In May, the final action dates for China and FB-4 India remained consistent with the FB-4 Worldwide final action date of July 22, 2003. As noted in the May Visa Bulletin and in previous editions of this column, it was anticipated that FB-4 India might retrogress as early as June and FB-4 China might retrogress by late summer.

As expected, FB-4 India will retrogress in June as a result of the high level of demand in this preference category. In addition, because FB-4 India number usage is so close to the annual limit, there is “no hope” that the current cut-off date of January 1, 2001 will advance for the remainder of the fiscal year. Similarly, due to extremely high demand, the final action date for FB-4 China will retrogress in June to January 1, 2003. However, unlike FB-4 India, there is still a possibility that the cut-off date for FB-4 China will advance before October.

Continue to Watch EB-4 and Certain Religious Workers (SR) Preference Categories. It is expected that the final action date of January 1, 2010 that was imposed in May for EB-4 and certain religious workers from El Salvador, Guatemala and Honduras will remain the same for the remainder of this fiscal year. This is necessary to ensure that numbers remain available for applicants from countries which have not yet reached their per-country limit for this category.

Last month we reported that it would be “extremely likely” that EB-4 India and EB-4 Mexico would also become oversubscribed during the summer. At this time, it appears that it will definitely happen, and that it is only a matter of when the retrogression will occur. When it does occur, a January 1, 2010 cut-off date will be applied.

The establishment of a cut-off date for EB-4 India and EB-4 Mexico is impacted by a lack of unused numbers that would otherwise fall down to these categories. Demand for EB-4 Mexico is driven by high levels of demand in Special Immigrant Juvenile (SIJS) filings. By contrast, demand for EB-4 India is driven by a number of factors, including demand for religious worker visas.

China EB-2 and EB-3. As reported in the May Visa Bulletin, the final action date for EB-2 China is September 1, 2012 and for EB-3 China, August 15, 2013. In previous months, we reported that EB-3 China would likely retrogress in June and that number usage would also stop at that time. In June, the final action date for both EB-2 and EB-3 China will retrogress to January 1, 2010. It is expected that this cut-off date will remain in place, thereby ending the downgrade phenomenon, at least through the end of this fiscal year.

EB-2 Worldwide and EB-2 India Demand. As a result of extremely high EB-2 demand, it has been determined that there will no longer be any “otherwise” unused numbers available for use in excess of the normal EB-2 per-country limit. While this has occurred in the past, it has not previously happened this early in the fiscal year. The EB-2 India final action date for May is November 8, 2008. As the combined EB-2 Worldwide and EB-2 India demand is expected to remain high, a retrogression of the EB-2 India final action date to October 1, 2004 was required for June. As noted in the June Visa Bulletin, Charlie predicts that the final action date may nevertheless advance slowly for the remainder of the fiscal year, consistent with the pace of EB-3 India advancement.

EB-2 India demand is partly attributable to EB-3 India upgrades. Visibility into EB upgrade and downgrade requests only happens at the time the I-485 is adjudicated and a visa number is requested. If visibility into demand for employment based visas was possible earlier in the process, retrogressions would not happen so abruptly.

EB-1 Demand and Impact to Other Categories. Demand for EB-1 Worldwide remains very high. As we cautioned last month, should the demand continue at this pace or increase, it is possible that some type of corrective action may be required before the end of the fiscal year.

You may access the June 2016 Visa Bulletin here and the May 2016 Visa Bulletin here.

https://travel.state.gov/content/visas/en/law-and-policy/bulletin/2016/visa-bulletin-for-june-2016.html

https://travel.state.gov/content/visas/en/law-and-policy/bulletin/2016/visa-bulletin-for-may-2016.html

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP. Alka is situated in Fox Rothschild’s Roseland, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

Recently, the American Immigration Council (Council) and the American Immigration Lawyers Association (AILA) teamed up on a lawsuit against the U.S. Department of Homeland Security and U.S. Citizenship and Immigration Services (USCIS) seeking to “obtain the information needed to provide the public with an understanding of the operating procedures and Defendant USCIS follows when administering the H-1B lottery. AILA seeks declaratory, injunctive and other appropriate relief under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, to compel the release of records …”

As stated in the complaint, with an annual limit of 65,000 visas for new hires, and 20,000 additional visas for professionals with an advanced degree from a U.S. university, employer’s demand for H-1B visas has exceeded the statutory cap for more than ten years. As a result, U.S. employers seeking highly skilled foreign professionals have to submit petitions to USCIS on the first five business day of April for the limited pool of H-1B nonimmigrant visa numbers that are available for the coming fiscal year. If USCIS determines at any time during the first five business days of the filing period that it has received more than enough petitions to meet the numerical limits, the agency will use a computer-generated random selection process (or “lottery”) to choose those petitions that will be accepted for processing according to the statutory limits, taking into account a percentage of the petitions selected which will be denied, withdrawn, or otherwise rejected. Petitions not selected will be returned to the petitioning employers.

“When petitions are submitted to USCIS in April, it’s as if they disappear into a ‘black box,’” said Melissa Crow, Legal Director of the American Immigration Council. “This suit is intended to pry open that box and let the American public and those most directly affected see how the lottery system works from start to finish, and to learn whether the system is operating fairly and all the numbers are being used as the law provides.” As stated by Benjamin Johnson, AILA Executive Director, “Despite the Obama Administration’s public commitment to the values of transparency and accountability, frankly, our attempts to see into this process have been resisted. Instead of responding to our requests for information about how the lottery is conducted, how cap-subject petitions are processed, and how the numbers are estimated and tracked, USCIS has kept the process entirely opaque. This litigation is intended to shine a necessary light on an important process in America’s business immigration system. ”

In a continuation of its effort to encourage eligible immigrants to become U.S. citizens, the Obama administration is proposing adjustments to the immigration benefit fee schedule that would raise the cost of some benefits but reduce naturalization fees for certain low-income immigrants.

The Department of Homeland Security (DHS) released its proposed changes to the U.S. Citizenship and Immigration Services (USCIS) Fee Schedule on May 4, 2016, affecting its fees for services.  The proposed rule has been published in the Federal Register (81 FR 26904, 5/4/16) and is open for comment. Comments are due by July 5, 2016. The proposed changes are likely to go into effect this fall.

According to USCIS, it conducted a comprehensive fee review, after refining its cost accounting process, and determined that current fees do not recover the full costs of the services it provides.  Accordingly, it has stated that adjustment to the fee schedule is necessary to fully recover its costs for services and to maintain adequate service levels.  DHS proposes to increase USCIS fees by a weighted average of 21 percent and add one new fee.  In addition, DHS proposes to clarify that persons filing a benefit request may be required to appear for biometrics services or an interview and pay the biometrics services fee, and make a number of other changes.  USCIS last adjusted its fee schedule in 2010.

This chart summarizes the proposed changes.  The range of fee changes varies, for example, increasing by $45 for an application for naturalization and by $195 for an application for a fiancé visa. The rules also include a new fee of $3,035 to recover the full cost of processing the Employment Based Immigrant Visa, Fifth Preference (EB-5) Annual Certification of Regional Center, Form I-924A.  In addition, the DHS proposal would clarify that people who apply for a benefit may be required to appear for biometrics services or an interview and to pay the biometrics services fee, among other changes

Largely exempt from the increases, however, are low income immigrants who wish to become U.S. citizens.  Under the proposed rule, “DHS would charge a reduced fee of $320 for naturalization applicants with family income greater than 150 percent and not more than 200 percent of the Federal Poverty Guidelines.”

“DHS is proposing this change to increase access to United States citizenship,” the proposed rule explains.  The allowance effectively cuts in half the current cost of naturalization — $680, including the $85 biometric fee for these individuals while seeking an additional $45 increase in the cost of naturalization applications for those immigrants who can afford it.

Rep. Luis V. Gutiérrez (D-IL), who has been promoting naturalization and voter registration across the country as a means for immigrants to “Stand Up to Hate,” cheered the rule.  “Right now, a lot of immigrants face a difficult choice: pay $700 or so for the chance to take all the tests and apply for citizenship, or pay $450 to renew a green-card for five years,” Gutiérrez said in a statement.

“Now, the math is much better,” he continued. “You can apply for citizenship and a fee waiver and become an American citizen – with all the rights, duties and honor of citizenship – for a more attainable price or maybe even for free.  The new calculation is going to mean that millions of those who are already eligible can finally take the step and apply for citizenship.”

Applicants can apply for a fee waiver if their income is below or 150 percent of the poverty line, they are receiving a means-tested benefit, or they are experiencing “financial hardship.”

In recent years the Obama administration has put an emphasis on encouraging the estimated 8.8 million eligible legal permanent residents in the U.S. to naturalize and become citizens. Immigration activists, like Gutiérrez, have also embarked on campaigns to help immigrants naturalize and register to vote in a bid to influence the upcoming 2016 election.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP. Alka is situated in Fox Rothschild’s Roseland, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.