A recent federal district court decision from the Middle District of North Carolina has blocked the U.S. Department of Homeland Security from enforcing its 2018 Memorandum on F, J, and M Nonimmigrant Unlawful Presence nationwide. In Guilford College et al. v. Chad Wolf, U.S. Department of Homeland Security et al., Federal District Judge, Loretta C. Biggs found that the policy violated the Administrative Procedures Act (APA) and the Immigration and Nationality Act (INA) and permanently enjoined (blocked) the Department of Homeland Security from enforcing this new policy.

As previously addressed in prior blog postings, F, J or M nonimmigrants granted admission as D/S, Duration of Status, who failed to maintain their status would start to accrue unlawful presence under the terms of the memorandum and would no longer be deemed in Duration of Status.

The Court gives the example of engaging in an unauthorized activity to be one as seemingly minor as moving into a different dormitory without notifying the authorities of the new address, and through this example and statutory language and interpretation, shows that the agency actions openly conflict with statutory text.

Judge Biggs held that the new policy violated the plain language of the INA stating, “The memorandum improperly dissolves the distinction between the “expiration of the period of stay authorized” and the violation of lawful status”.

Thus, for now, international students can rely on their admission in Duration of Status to allow them to pursue their studies without concern over the government changing the definition of unlawful presence midcourse.

 

As of February 24, 2020, all applications for Adjustment of Status will be subject to the enhanced Public Charge Rule after a rule by the U.S. Supreme Court on January 27, 2020.  This rule, originally scheduled to take effect on October 15, 2019, was enjoined due to multiple federal court injunctions, which have now been lifted in all states, except Illinois.

The Inadmissibility on Public Charge Grounds Final Rule implemented by the Trump administration expands greatly on how the government proposes to enforce a determination that a foreign national who is seeking a U.S. immigration benefit is or is likely to become a “Public Charge”, which means an individual who is likely to become primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or institutionalization for long-term care at government expense.  For additional information, please see our previous post on this topic.

In response to the ruling, on February 5, U.S. Citizenship and Immigration Services (USCIS) issued policy guidance, effective February 24, 2020.  Among other things, the guidance defines the term “public charge,” lists the categories of exempt applicants, identifies the types of public benefits considered in inadmissibility determinations, and more.  Additionally, USCIS published revised forms consistent with the final rule, which must be used for applications file on and after Feb. 24, 2020 (except in Illinois, where the rule remains enjoined by a federal court):  With regard to applicants from Illinois, USCIS released a webpage providing information on how it plans to adjudicate applications for adjustment of status, extension of stay, and change of status for applicants and petitioners in Illinois (including information on the effects of moving in and out of the state).

USCIS will not consider the application for, certification or approval to receive, or receipt of certain previously excluded non-cash public benefits (such as SNAP, most forms of Medicaid, and public housing) before February 24, 2020.  Similarly, USCIS will not consider as a heavily weighted negative factor receipt of previously included public benefits (such as SSI and TANF) before February 24, 2020.  (Note that Refugees, Asylees, Survivors of Trafficking, Survivors of Domestic Violence (T or U Visas), VAWA self-petitioners, or Special Immigrant juveniles are NOT subject to the new rule when applying for status or permanent residency.)

Policy Highlights
  • Defines the term “public charge” for purposes of inadmissibility determinations under INA 212(a)(4).
  • Lists the categories of applicants that are exempt from, or may obtain a waiver of, the public charge inadmissibility ground.
  • Identifies the types of public benefits that are considered in public charge inadmissibility determinations, as well as in applications and petitions for extension of stay and change of status.
  • Identifies the factors that USCIS considers and explains that officers review the totality of the applicant’s circumstances when determining public charge inadmissibility.
  • Explains that a sufficient Affidavit of Support Under Section 213A of the INA, when required, is but one factor in the totality of the circumstances, and does not, by itself, mean an alien is not inadmissible based on the public charge ground.
  • Explains the public charge bond process for adjustment of status applications filed with USCIS.
  • Explains the public benefits condition that applies to nonimmigrants seeking extension of stay and change of status.
  • Explains that the public charge ground of inadmissibility does not apply in naturalization proceedings except that, for the purposes of determining whether a naturalization applicant was lawfully admitted for permanent residence under INA 318, the officer’s review includes whether the alien was inadmissible based on the public charge ground.

The rule will require immigrants to attach a new form, I-944, Declaration of Self-Sufficiency, when applying for a green card in addition to the many other forms already required as part of an adjustment application.  The new eighteen (18) page I-944 form requests a wide array of information including Personal & Household Assets, Resources, and Financial Status, Credit Score Report, Bad Credit Explanation, bankruptcy history, Health Insurance, Premium Tax Credits Obamacare, and Public Benefits Used by Individual.  There is no filing fee associated with the form, however, there may be costs to applicants, including obtaining a credit history from one of the three vendors.  USCIS has advised that it will take  approximately 4.5 hours to fill out the form, although it remains to be seen how long will actually be required.

Fox Rothschild will continue to monitor and report on activity regarding the Public Charge Rule.  As always, please refer to ImmigrationView for the latest information on topics of importance in U.S. immigration.
For questions or more information about this topic, please contact Mark Harley at (412) 391-2418 or mharley@foxrothschild.com, Alka Bahal at (973) 994-7800 or abahal@foxrothschild.com or any member of the firm’s Immigration Practice.

Today, Jan. 31, 2020, USCIS published the long awaited new version of the Form I-9, Employment Eligibility Verification for immediate use.  The Department of Homeland Security (“DHS”) published a notice today in the Federal Register announcing the official release of the new version of the form, as approved by Office of Management and Budget on Oct. 21, 2019.  This edition of the form replaces all other forms and should be used immediately for all new hires and reverifications.  The previous edition of the Form (with Rev. 07/17/2017 N in the lower left corner) remains valid for 60 days.  Thereafter, only the new edition of the form is acceptable.

The new edition of the form is available in fillable PDF format, print format and in Spanish on USCIS’ I-9 Central website.  (Note that the Spanish form may only be executed by employers in Puerto Rico; Employers in the 50 states, Washington, D.C., and other U.S. territories may use the Spanish version of the Form as a translation guide only but must complete the English version of the Form.)  The associated instructions and the Form I-9 Supplement, Preparer and/or Translator Certification, have both also been updated.

Employers should begin using the updated form as of Jan. 31, 2020, however, use of the new edition is not mandated until April 30, 2020 to provide employers with sufficient time to adjust their practices.  Employers can confirm that they are using the current and correct edition of the form by checking the form date in the lower left corner, which should read 10/21/2019, and the expiration date in the upper right corner, which should read 10/31/2022.

This new edition contains minor changes to the form and its instructions:

Change the Form (Fillable PDF Version only):  Revised the Country of Issuance field in Section 1 and the Issuing Authority field (when selecting a foreign passport) in Section 2 to add Eswatini and Macedonia, North per those countries’ recent name changes.

Changes in the Instructions:

  • Clarified who can act as an authorized representative on behalf of an employer
  • Updated USCIS website addresses
  • Provided clarification on acceptable documents
  • Updated the process for requesting paper Forms I-9
  • Updated the DHS Privacy Notice

All U.S. employers are required to complete a Form I-9 for every employee hired in order to verify that the individual is authorized for employment in the United States under the Immigration Reform and Control Act of 1986 (IRCA).  Beginning April 30, 2020, employers must use the new edition of the Form for all new hires and for re-verifying current employees with expiring employment authorization documentation.  Employers should not complete new Forms for existing employees who do not require re-verification.

A best practice would be for employers to begin using the new edition of the form immediately, but employers may continue using the prior edition of the form until April 30, 2020.  After that date, only the form with the 10/21/2019 date (located on the lower left corner of the form) may be used.

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Alka Bahal is a Partner and the Co-Chair of the Immigration Practice of Fox Rothschild LLP, specializing in corporate immigration law and compliance.  Alka is situated in Fox Rothschild’s Morristown, 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.

Ali Brodie is a Partner and the Co-Chair of the Immigration and EB-5 Immigrant Investor Practice Groups of Fox Rothschild LLP and has extensive experience in corporate immigration law and compliance.  Based in Fox Rothschild’s Los Angeles, California and Denver, Colorado offices, Ali’s practice spans the United States and reaches Consulates worldwide.  You can reach Ali at (303) 446-3854 or at abrodie@foxrothschild.com.

Catherine Wadhwani is a Partner and Co-Chair of the Immigration Practice of Fox Rothschild LLP.  For nearly 25 years, Catherine’s practice has focused on business immigration law and compliance, primarily in the health care, general corporate and academia.  Her practice covers the United States and Consulates worldwide.  Catherine is based in our Pittsburgh, Pennsylvania office.  You can reach Catherine at 412-391-1334 or cwadhwani@foxrothschild.com.

Learn more about Fox Rothschild’s Corporate Immigration Practice here and what else we can do for you here.

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” (January 22, 2020), reflecting his analysis of current trends and future projections for the various immigrant preference categories.

This month, Charlie’s comments on the first quarter of this fiscal year are limited due to insufficient data, but we look forward to more specific predictions on demand trends and date movement in the coming months.

Check-in with DOS’s Charlie Oppenheim:  January 22, 2020

Family-based Preference Categories

All F2A categories remain current in February. However, per the January 2020 Visa Bulletin, AILA members should prepare for a final action date to be imposed within the next few months across all F2A categories.

As previewed in the January 2020 visa bulletin and evident in the February Bulletin, the F4 “Rest of World” Final Action Dates will retrogress due to a dramatic increase in demand for this category, with F4 “Rest of World”retrogressing seven months to July 1, 2006.

Employment-based Preference Categories

EB-1:  In February, the final action date for EB-1 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, Philippines, and Vietnam) advances two months to December 1, 2018. Based on currently available information, it remains possible–yet too early to confirm–that this category could become current in the summer of 2020.  The final action dates for EB-1 China and EB-1 India continue to hold at May 22, 2017, and January 1, 2015, respectively in February.

EB-2:  EB-2 Worldwide is current for February 2020.  Charlie notes that demand for EB-2 Worldwide numbers continues to trend in such a way that a final action date may be imposed at some point during the second half of FY2020.  EB-2 China advances two weeks in February to July 15, 2015, and EB-2 India advances one day to May 19, 2009.

EB-3:  Charlie notes that EB-3 Worldwide and EB-3 Other Workers Worldwide will become subject to a final action date in March 2020.  Charlie will determine what that date will be upon receipt of data from USCIS in February 2020.  EB-3 China advances one month to January 1, 2016, in February 2020, slightly widening the final action date spread between EB-3 China’s and EB-2 China’s final action dates, placing EB-3 China 5.5 months ahead of EB-2 China.  Evidence of significant downgrades from EB-2 to EB-3 have not yet materialized, but Charlie continues to watch these categories closely.  EB-3 India advances one week to January 8, 2009, in February 2020, narrowing the gap with EB-2 India, final action date of May 19, 2009, to about four months.  The final action date for EB-3 Philippines advances 2.5 months in February 2020, which exceeds the “up to one month” advancement projected in the January 2020 Visa Bulletin.  According to Charlie, the reason for this more aggressive advancement was to allow for additional number usage before EB-3 Worldwide becomes subject to a final action date in March 2020.  Approximately 36 percent of EB-3 Philippines demand is processed at USCIS, with 64 percent processed at the U.S. Consulate in Manila.

EB-4:  The final action dates for EB-4 Mexico and EB-4 El Salvador, Guatemala, and Honduras hold at September 1, 2017, and July 1, 2016, respectively in February 2020.  Given current demand trends, Charlie expects to impose a final action date for EB-4 India as early as July 2020.

EB-5:  In February 2020, EB-5 China advances one week to December 1, 2014.  As applicants are not becoming documentarily qualified as quickly as Charlie might expect, in the future this category may advance more rapidly than previously anticipated.  EB-5 India advances 4 months to September 1, 2018, in February 2020, and EB-5 Vietnam advances one week to December 15, 2016.

You may access the January 2020 Visa Bulletin here and the February 2020 Visa Bulletin here.

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Alka Bahal is a Partner and the Co-Chair of the Immigration Practice of Fox Rothschild LLP, specializing in corporate immigration law and compliance.  Alka is situated in Fox Rothschild’s Morristown, 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.

Ready or not, H-1B Cap Registration Season is upon us.  And things are a little different this Cap Season. That’s because USCIS formally announced via a January 9, 2020 Federal Register notice that it will change the lottery system and implement its previously proposed Electronic H-1B Registration Process.

Beginning with FY2021 H-1B cap season, rather than filing complete H-1B petitions,  the “season” will kick off with an electronic registration process for employers.  If electronic registrations exceed the H-1B cap of 65,000 and the 20,000 advanced degree exemption, USCIS will then conduct the FY2021 H-1B cap random lottery using the electronic registrations.

Of course this is the system’s first year. There are further details, and will be refinements, but here are some basic points from the announcement:

Who?  Prospective FY2021 H-1B Cap-Subject Petitioners (or their Authorized Representatives), including those eligible for the advanced degree exemption

What?  FY2021 H-1B Cap Electronic Registration

When?  March 1 – ~March 20, 2020 (Initial FY2021 H-1B Cap Electronic Registration Period—requires employer action earlier than in prior years)

  • No later than March 31, 2020 (USCIS will notify registrants with selected registrations)
  • Selection notifications will indicate the time period for filing petitions; No fewer than 90 days from the date of selection, beginning as early as April 1.

How much?  $10 Non-Refundable USCIS Registration Fee per submission (to be borne by the petitioner)

How many?  A prospective petitioner may submit one electronic submission per individual per fiscal year; no duplicates or all registrations filed by that prospective petitioner relating to that beneficiary for that fiscal year will become invalid.

Selected? Those whose registrations are selected may file an FY2021 cap-subject petition—but only for the person “named in the registration and within the filing period indicated on the eligibility notice”.

Not Selected? Registrations that aren’t selected will be kept in reserve for the remainder of the fiscal year in case USCIS needs to select more entries in order to use all 65,000 spots in the regular cap and meet the 20,000 advanced degree exemption.

If you’re a cap-subject, prospective H-1B petitioner now is the time to decide whether you want to register to sponsor any foreign national professionals to begin working for you in H-1B status as of the beginning of the 2021 fiscal year (i.e., October 1, 2020).  Data should be collected to prepare for registration as soon as possible. And as noted, USCIS will provide only a limited amount of time for lottery winners to file their petitions.  Especially during this first year with the new procedure, you should consider that certain details of the prospective petition be reviewed and finalized, etc. before or during the registration period rather than waiting for the registration results.  This is a new deadline that you don’t want to miss if you need the potential H-1B worker.

Note that continued work authorization for F-1 students through the cap-gap protection will not attach unless the registration is selected in the lottery and the petitioner files the H-1B petition. In particular, these petitions should be filed at the earliest.

For more information, please feel free to contact the undersigned or any member of our Immigration Group.

Catherine Wadhwani is a Partner and Co-Chair of the Immigration Practice of Fox Rothschild LLP, focusing in business immigration law and compliance. You can reach Catherine at 412-391-1334 or cwadhwani@foxrothschild.com.

From the Public Engagement Division of USCIS:  U.S. Citizenship and Immigration Services announced on 12/6/19 the requirement for employers seeking to file H-1B cap-subject petitions, including those eligible for the advanced degree exemption, to first electronically register and pay the associated $10 H-1B registration fee before filing a petition for the fiscal year 2021 H-1B cap.

USCIS will open an initial registration period from March 1 through March 20, 2020.

  • During this initial registration period, prospective petitioners or their authorized representatives must electronically submit a separate registration naming each alien for whom they seek to file an H-1B cap-subject petition.
    • If a sufficient number of registrations are received, we will randomly select the number of registrations projected as needed to reach the H-1B numerical allocations after the initial registration period closes and no later than March 31, 2020.
    • Prospective petitioners with selected registrations will be eligible to file a cap-subject petition only for the alien named in the registration.

Once the H-1B registration system has been implemented, and when registration is required, the agency will not consider a cap-subject petition properly filed unless it is based on a valid registration selection for the same beneficiary, and the appropriate fiscal year. Additionally, although petitioners can register multiple aliens during a single online submission, duplicate registrations for the same beneficiary in the same fiscal year will be discarded.

During the past few months, USCIS conducted usability testing for the H-1B registration system.  We incorporated feedback from those sessions into redesigns of the system.  After completing the current development phase, USCIS will conduct further outreach and training prior to the initial implementation of the registration system to allow the public the opportunity to familiarize themselves with the electronic registration process.  USCIS will provide guidance on how to use the registration system and prepare registrations before opening the registration system for the initial registration period.

DHS intends to publish a notice in the Federal Register in the coming weeks to formally announce implementation of the H-1B registration process.

Please see here for the formal published announcement on USCIS’ website.

Please contact your attorney at Fox Rothschild sooner rather than later if you plan to file an H-1B during next year’s cap season.  As this registration process is entirely new, we recommend planning well in advance to maximize opportunities for success.  Given that there is only a 20 calendar day window for registrations, a  brand new system and procedure, it remains to be seen how the technology will withstand the  anticipated onslaught of applicants.

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Alka Bahal is a Partner and the Co-Chair of the Immigration Practice of Fox Rothschild LLP, specializing in corporate immigration law and compliance.  Alka is situated in Fox Rothschild’s Morristown, 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.

On November 14, 2019, the Department of Homeland Security published a notice of proposed rulemaking in the Federal Register to adjust the U.S. Citizenship and Immigration Services (USCIS) Immigration Examinations Fee Account (IEFA) fee schedule.  The public comment period is open until December 16, 2019.

Unlike most government agencies, USCIS is fee-funded.  According to the USCIS, fees collected and deposited into the IEFA fund nearly 96% of USCIS’ budget.  Federal law requires USCIS to conduct biennial fee reviews and recommend necessary fee adjustments to ensure recovery of the full cost of administering the nation’s immigration laws, adjudicating applications and petitions, and providing the necessary infrastructure to support those activities.

“USCIS is required to examine incoming and outgoing expenditures, just like a business, and make adjustments based on that analysis.  This proposed adjustment in fees would ensure more applicants cover the true cost of their applications and minimizes subsidies from an already over-extended system,” said Ken Cuccinelli, acting director of USCIS.  “Furthermore, the adjudication of immigration applications and petitions requires in-depth screening, incurring costs that must be covered by the agency, and this proposal accounts for our operational needs and better aligns our fee schedule with the costs of processing each request.”

USCIS indicates the proposed fee rule accounts for increased costs to adjudicate immigration benefit requests, detect and deter immigration fraud, and thoroughly vet applicants, petitioners, and beneficiaries and proposes to increase fees by a weighted average increase of 21%.  According to DHS, this is necessary to ensure full cost recovery because the current fee schedule would leave the agency underfunded by approximately $1.3 billion per year.  USCIS last updated its fee structure in FY 2017, by a weighted average increase of 21%.

Also included in the proposed rule are proposals to amend regulations to remove the $30 charge for dishonored payments and to change the 15 calendar days for premium processing to 15 business days.

The public is invited to participate in this rulemaking by submitting written data, views, or arguments on all aspects of this proposed rule. The 30-day public comment period will conclude on 12/16/2019.  After the 30-day comment period, the DHS will address the comments received and publish a final rule in the Federal Register.

Below is a sampling of proposed fee changes from Proposed Rule 84 FR 62280, as published in the Federal Register.

Table 19—Proposed Fees by proposed rule:

U.S. Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements

Immigration benefit request Current fee Proposed fee Delta ($) Percent change
I-90 Application to Replace Permanent Resident Card $455 $415 −$40 −9%
I-102 Application for Replacement/Initial Nonimmigrant Arrival-Departure Document 445 490 45 10
I-129 Petition for a Nonimmigrant worker 460 N/A N/A N/A
I-129H1 I-129 H-1B—Named Beneficiaries 460 560 100 22
I-129H2A I-129 H-2A—Named Beneficiaries 460 860 400 87
I-129H2B I-129 H-2B—Named Beneficiaries 460 725 265 58
I-129L Petition for L Nonimmigrant Worker 460 815 355 77
I-129O Petition for O Nonimmigrant Worker 460 715 255 55
I-129CW, I-129E&TN, and I-129MISCV Petition for a CNMI-Only Nonimmigrant Transitional Worker; Application for Nonimmigrant Worker: E and TN Classification; and Petition for Nonimmigrant Worker: H-3, P, Q, or R Classification. 460 705 245 53
I-129H2A I-129 H-2A—Unnamed Beneficiaries 460 425 −35 −8
I-129H2B I-129 H-2B—Unnamed Beneficiaries 460 395 −65 −14
I-129F Petition for Alien Fiancé(e) 535 520 −15 −3
I-130 Petition for Alien Relative 535 555 20 4
I-131 Application for Travel Document 575 585 10 2
I-131 Travel Document for an individual age 16 or older 135 145 10 7
I-131 I-131 Refugee Travel Document for a child under the age of 16 105 115 10 10
I-131A Application for Carrier Documentation 575 1,010 435 76
I-140 Immigrant Petition for Alien Worker 700 545 −155 −22
I-191 Application for Relief Under Former Section 212(c) of the Immigration and Nationality Act (INA) 930 800 −130 −14
I-192 Application for Advance Permission to Enter as Nonimmigrant 183 585/930 1,415 830/485 142/52
I-193 Application for Waiver of Passport and/or Visa 585 2,790 2,205 377
I-212 Application for Permission to Reapply for Admission into the U.S. After Deportation or Removal 930 1,040 110 12
I-290B Notice of Appeal or Motion 675 705 30 4
I-360 Petition for Amerasian Widow(er) or Special Immigrant 435 455 20 5
I-485 Application to Register Permanent Residence or Adjust Status 184 1,140/750 1,120 −20/370 −2/49
I-526 Immigrant Petition by Alien Entrepreneur 3,675 4,015 340 9
I-539 Application to Extend/Change Nonimmigrant Status 370 400 30 8
I-589 Application for Asylum and for Withholding of Removal 0 50 50 N/A
I-600/600A Petition to Classify Orphan as an Immediate Relative/Application for Advance Processing of an Orphan Petition 775 810 35 5
I-600A/I-600 Supp. 3 Request for Action on Approved Form I-600A/I-600 N/A 405 N/A N/A
I-601 Application for Waiver of Ground of Excludability 930 985 55 6
I-601A Application for Provisional Unlawful Presence Waiver 630 960 330 52
I-612 Application for Waiver of the Foreign Residence Requirement (Under Section 212(e) of the INA, as Amended) 930 525 −405 −44
I-687 Application for Status as a Temporary Resident under Section 245A of the Immigration and Nationality Act 1,130 1,130 0 0
I-690 Application for Waiver of Grounds of Inadmissibility 715 770 55 8
I-694 Notice of Appeal of Decision 890 725 −165 −19
I-698 Application to Adjust Status From Temporary to Permanent Resident (Under Section 245A of the INA) 1,670 1,615 −55 −3
I-751 Petition to Remove Conditions on Residence 595 760 165 28
I-765 Application for Employment Authorization 410 490 80 20
I-800/800A Petition to Classify Convention Adoptee as an Immediate Relative/Application for Determination of Suitability to Adopt a Child from a Convention Country 775 810 35 5
I-800A Supp. 3 Request for Action on Approved Form I-800A 385 405 20 5
I-817 Application for Family Unity Benefits 600 590 −10 −2
I-821D Consideration of Deferred Action for Childhood Arrivals (Renewal) 0 275 275 N/A
I-824 Application for Action on an Approved Application or Petition 465 500 35 8
I-829 Petition by Entrepreneur to Remove Conditions on Permanent Resident Status 3,750 3,900 150 4
I-881 Application for Suspension of Deportation or Special Rule Cancellation of Removal 185 285/570 1,800 1,515/1,230 532/216
I-910 Application for Civil Surgeon Designation 785 650 −135 −17
I-924 Application for Regional Center Designation Under the Immigrant Investor Program 17,795 17,795 0 0
I-924A Annual Certification of Regional Center 3,035 4,470 1,435 47
I-929 Petition for Qualifying Family Member of a U-1 Nonimmigrant 230 1,515 1,285 559
I-941 Application for Entrepreneur Parole 1,200 1,200 0 0
N-300 Application to File Declaration of Intention 270 1,320 1,050 389
N-336 Request for a Hearing on a Decision in Naturalization Proceedings 700 1,755 1,055 151
N-400 Application for Naturalization 640/320 1,170 530 83
N-470 Application to Preserve Residence for Naturalization Purposes 355 1,600 1,245 266
N-565 Application for Replacement Naturalization/Citizenship Document 555 545 −10 −2
N-600 Application for Certificate of Citizenship 1,170 1,015 −155 −13
N-600K Application for Citizenship and Issuance of Certificate Under Section 322 1,170 960 −210 −18
USCIS Immigrant Fee 220 200 −20 −9
G-1041 Genealogy Index Search Request 65 240 175 269
G-1041A Genealogy Records Request 65 385 320 492
Biometric Services 85 30 −55 −65

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Alka Bahal is a Partner and the Co-Chair of the Immigration Practice of Fox Rothschild LLP, specializing in corporate immigration law and compliance.  Alka is situated in Fox Rothschild’s Morristown, 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.

To update my September 5, 2019 post, USCIS has announced a final rule that requires a $10 non-refundable registration fee for each cap-subject H-1B submitted by petitioning employers.  USCIS announced that this registration fee will modernize operations and allow the agency to more efficiently process H-1B applications.  The rule goes into effect on December 9, 2019 and the registration fee will be required in order to file H-1B cap-subject petitions, including advanced degree exemption applications.

Note that H-1B applications that are NOT cap-subject will NOT have to pay the registration fee.

Employers will be required to electronically register with USCIS during a soon to be announced registration period.  We will continue to provide up to date information on Immigration View as USCIS releases information.

Immigration and Customs Enforcement (ICE) recently announced changes to student’s access to the Student and Exchange Visitor Program (SEVP).    Instead of allowing  students  access to their portal accounts indefinitely, in the future student’s access will be limited after their optional practical training (OPT) authorization ends.  The government will soon only allow access to the SEVP Portal for up to six months after the students OPT ends.   Therefore, It is important for students to make a copy of their portal record.

Two system upgrades will initiate this change.  The first change, the SEVP Portal Release 1.10, will limit the students’ access to six months after their OPT End Date.

The second system upgrade will be SEVP Portal Release 1.11, which will add an additional email for all students that will be sent when a student’s OPT ends to inform them their portal access closes in six months. Students will continue to receive emails from the SEVP Portal 30 days in advance of their portal access closing and also on the day their access ends.

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 16, 2019), reflecting his analysis of current trends and future projections for the various immigrant preference categories.

This month, Charlie’s comments on the first quarter of this fiscal year are limited due to insufficient data, but we look forward to more specific predictions on demand trends and date movement in the coming months.

Check-in with DOS’ Charlie Oppenheim:  August 16, 2019

UPDATE:  Following determination of the dates listed in the September 2019 visa bulletin, the EB-3 category has become unavailable and will remain so through the end of this fiscal year. This includes not only EB-3 China and EB-3 India, but the entire category, including EB-3 Worldwide, EB-3 El Salvador, Guatemala and Honduras, EB-3 Mexico, EB-3 Philippines and EB-3 Vietnam.  Charlie had identified this possibility on page 8 of the September visa bulletin when he stated that “(i)t is likely that corrective action will also be required for other preferences prior to the end of the fiscal year.”  Additionally, Charlie has cautioned that, similar to EB-3, an immediate cut-off in visa usage could very well occur in the EB-1 and EB-2 categories at any time before the end of the fiscal year if the level of demand results in those annual limits being reached prior to the end of the fiscal year.

The fact that demand has resulted in various annual limits having been reached is not a surprise to Charlie and is his goal each year.  What is unexpected is that it is happening much sooner than expected. Prior to FY-2018 if such action were required it had normally occurred in September, and the FY-2018 issues could be attributed to the changes in USCIS processing of employment cases.

At a macro level, the fact that there may be a need to limit/cut-off future use of numbers is a positive situation to the extent that it means that all of the numbers available under the applicable annual limits will have been used. However, for individual applicants in which the ability to immediately file for Adjustment of Status is critical to remaining in the U.S., the retrogression may have significant negative impact.

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Family-based Preference Categories

As has been the case for the past few months, the F2A Final Action Date will remain current across categories for September 2019. Fairly sizeable USCIS demand in the FB Mexico preference categories continues.  The continued lack of significant demand in the FB Philippines preference categories has resulted in artificially rapid movement in those final action dates. This continues to be done to maximize number use under the various annual limits.  Apart from Mexico, there seems to be lack of interest in the family-sponsored preference categories based on the failure of applicants to act on their case in timely manner.  As we move into the next fiscal year, expect movements in the family-sponsored preference categories that are consistent with what we have seen in FY2019; until the demand patterns sufficiently improve.

Employment-based Preference Categories

EB-1:  As we enter FY2020, expect to see the EB-1 categories continue to be separated into three different Final Action Dates-one for EB-1 Worldwide (including EB-1 El Salvador, Guatemala and Honduras, EB-1 Mexico, EB-1 Philippines, and EB-1 Vietnam), two others for EB-1 China and EB-1 India respectively.  Charlie does not expect any of the EB-1 categories to become current at any time in the foreseeable future.  Charlie is hesitant to predict what the Final Action Dates will be in the EB-1 categories for October.  While he hopes the EB-1 Worldwide and EB-1 China dates will revert to where they were in July 2019, it is possible they will not fully recover.  However, regarding EB-1 India, which is now unavailable, Charlie is confident that it will not recover in October and may not do so for the foreseeable future.

In September 2019, EB-1 Worldwide (including EB-1 El Salvador, Guatemala and Honduras, EB-1 Mexico, EB-1 Philippines, and EB-1 Vietnam) advances 15 months, from July 1, 2016 to October 1, 2017. The reason these categories were able to advance is that the heavy surge in USCIS demand for that began in mid-May through early July 2019 did not persist. Not only did this demand not persist, but the return of unused EB-1 numbers from consular posts abroad provided additional room to allow the advancement of these categories.

In contrast, EB-1 India has become unavailable due to continued high demand, which resulted in full use of its numbers for FY19. The pent-up demand that will continue to accrue for the 6 weeks that this category remains unavailable will further delay the category’s ability to recover.  EB-1 China demand remains strong, resulting in a retrogression of 2.5 years in the September visa bulletin to January 1, 2014 in order to limit any use of numbers for the remainder of the year.

EB-2:  EB-2 Worldwide (including EB-2 El Salvador, Guatemala and Honduras, EB-2 Mexico, EB-2 Philippines,and EB-2 Vietnam) advances one year to January 1, 2018, while EB-2 India inches forward 6 days to May 8, 2009.  EB-2 China holds at January 1, 2017 for September 2019. Like EB-1 Worldwide, the movement for EB-2 Worldwide is due to the lessened demand and additional room made available after consular posts returned unused numbers.  Unlike the other employment-based preference categories, the demand trends for EB-2 are such that Charlie is more confident that the Final Action Dates for this category (i.e., EB-2 Worldwide, including EB-2 El Salvador, Guatemala and Honduras, EB-2 Mexico, EB-2 Philippines, and EB-2 Vietnam) will be able to recover to current in either October or November 2019.

EB-3:  Charlie is unable to say when the Final Action Dates for EB-3 Worldwide, EB-3 El Salvador, Guatemala, Honduras, EB-3 Mexico, EB-3 Philippines, and EB-3 Vietnam, will once again become current.  While it is possible that this could occur in October 2019, it might also take longer.  Charlie hopes that there can be rapid recovery for EB-3 India, which also retrogressed earlier, over a period of several months. However, a timeline for recovery is not guaranteed.

Already scheduled USCIS interviews may continue in USCIS’ discretion for all categories that have either retrogressed or become “unavailable”. If the application is approvable, rather than receiving a visa number immediately, USCIS’ request for a visa number will be placed in Charlie’s pending demand file and will be authorized for use once the Final Action Date advances beyond the applicant’s priority date. Having cases in the pending demand file provides Charlie with much needed visibility to demand which allows him to move the Final Action Dates in a more calculated manner without the volatility which has been experienced.  For September 2019, EB-3 China Other Workers holds at November 22, 2007.

EB-4:  The entire EB-4 category is “Unavailable” for September, and that status has already been imposed during August 2019.  Charlie discussed demand resulting from an increase in decisions for Special Immigrant Juvenile (SIJ) cases in June 2019.  The result of these decisions being a significant and unexpected increase in demand for June and July 2019.  Charlie mentioned that had this unexpected increase in demand not happened, it would have been possible to allow most EB-4 categories to be listed as “Current” for the month of September.

Diversity Visa Lottery

All categories will be current for September.  To the extent that the winners are eligible and had promptly submitted their documentation and timely responded to any inquiries from the Kentucky Consular Center (KCC) and/or the post in order to be scheduled for interview, they should be able to receive their immigrant visas by the end of September.  Any such cases not finalized and approved by close of business (COB) September 30, 2019 will no longer be entitled to status or eligible to receive DV immigrant visas.  Since 1999, 5,000 DV numbers were offset to support the NACARA program. As there are very few remaining NACARA matters, going into 2020 the vast majority of these previously diverted 5,000 numbers will once again be available for the DV program usage.

You may access the August 2019 Visa Bulletin here and the September 2019 Visa Bulletin here.

 

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Alka Bahal is a Partner and the Co-Chair of the Immigration Practice of Fox Rothschild LLP, specializing in corporate immigration law and compliance.  Alka is situated in Fox Rothschild’s Morristown, 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.