Intracompany Transferees (L-1 and Permanent Residence)

Today, December 23, 2016, USCIS posted a large number of new form versions. The forms all have an effective date of today, December 23, 2016, and the website indicates that no other versions of the forms are acceptable, with the exception of Form I-129.  It appears USCIS is continuing to accept prior version of Form I-129. No prior notice of these changes was given, and there was no alert sent to stakeholders today.

Because USCIS elected to deviate from its normal procedures and did not provide notice to stakeholders or provide any grace period during which prior form versions could be submitted, it will pose some challenges to form vendors who will not have time to reprogram the case management software systems and applicants/petitioners who may remain unaware. 

USCIS has indicated to The American Immigration Lawyer’s Association (AILA) that ,while it strongly encourages people to use the new version of the forms, it is aware that there may be older editions of the forms that have already been completed and are in the queue to be mailed and/or filed. USCIS said that it will be flexible and will apply discretion when receipting forms, rather than rejecting them outright.

Affected forms include the following: I-90, I-102, I-129, I-129CW, I-129F, I-130, I-131, I-131A, I-140, I-191, I-192, I-212, I-290B, I-360, I-485, I-485 Supplement A, I-525, I-539, I-600, I-600A, I-601, I-601A, I-612, I-690, I-694, I-698, I-751, I-765, I-800, I-800A, I-817, I-824, I-910, I-924, I-924A, I-929, I-942, I-942P, N-300, N-336, N-400, N-470, N-600, and N-600K.

Please also note that regardless of the form edition submitted, applications and petitions postmarked or filed on or after December 23, 2016, must include the new fees or USCIS will reject the submission.

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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.

On October 24, 2016, the United States Citizenship and Immigration Service (USCIS) published a final rule confirming an increase to the processing fees for most of the applications and petitions it handles. This is a result of USCIS’ comprehensive review of the fee schedule for the fiscal year 2016/2017 the first USCIS fee increase since November 2010. The new fees will go into effect on December 23, 2016, which means that all applications or petitions postmarked on or after this date must include the new fees, or they will not be accepted by USCIS for processing.

According to the Department of Homeland Security, USCIS’ operational funding comes almost entirely from the user fees, and the current fees do not cover the full cost of services provided by the agency; the average fee increase of 21% is necessary to recover costs and maintain adequate level of services to the immigration benefits seekers.

While some applications see a relatively slight increase of $30 or $45, the cost of others, such as the Application for Adjustment of Status (I-485), Application for Naturalization (N-400), and Petition for a Nonimmigrant Worker (I-129) will go up by more than $100, which undoubtedly may affect certain applicants and petitioners, such as households with limited incomes or small employers. As a relief measure, simultaneously with the overall increase of the cost of services provided by USCIS, the agency now offers a reduced filing fee for the naturalization applicants (N-400) whose family income falls between 150% and 200% of the Federal Poverty Guidelines, which is adjusted annually by the U.S. Department of Health and Human Services to determine eligibility for certain federal programs. An additional benefit of the new rule is that USCIS will no longer automatically reject an immigration or naturalization benefit paid with a dishonored check or missing the required biometrics fee. Instead, applicants will be provided an opportunity to correct the deficient payment (i.e., USCIS will attempt to resubmit the insufficient check to the applicant’s bank once again) or by paying the required biometrics fee during their biometrics appointments or immigration interview. The new rule will not affect charge free services provided to refugees and asylum applicants, as well as other customers eligible for fee waivers or exemptions.

This chart lists some of the key new USCIS’ fees effective December 23, 2016. Applications and petitions postmarked or filed on or after December 23, 2016, must include these new fees or USCIS will reject the submission.  You can find the complete new fee schedule here.

Immigration Benefit Request New Fee ($) Old Fee ($)
I–90 Application to Replace Permanent Resident Card 455 365
I–102 Application for Replacement/Initial Nonimmigrant Arrival-Departure Document 445 330
I–129/129CW Petition for a Nonimmigrant worker 460 325
I–129F Petition for Alien Fiancé(e) 535 340
I-130 Petition for Alien Relative 535 420
I-131/I-131A Application for Travel Document 575 360
I–140 Immigrant Petition for Alien Worker 700 580
I–290B Notice of Appeal or Motion 675 630
I–360 Petition for Amerasian Widow(er) or Special Immigrant 435 405
I–485 Application to Register Permanent Residence or Adjust Status 1,140 985
I-485 Application to Register Permanent Residence or Adjust Status (certain applicants under the age of 14 years) 750 635
I–526 Immigrant Petition by Alien Entrepreneur 3,675 1,500
I–539 Application to Extend/Change Nonimmigrant Status 370 290
I–600/600A Petition to Classify Orphan as an Immediate Relative/Application for Advance Petition Processing of Orphan Petition 775 720
I–751 Petition to Remove Conditions on Residence 595 505
I–765 Application for Employment Authorization 410 380
I–824 Application for Action on an Approved Application or Petition 465 405
I–829 Petition by Entrepreneur to Remove Conditions 3,750 3,750
I–924 Application for Regional Center Designation Under the Immigrant Investor Program 17,795 6,230
I–924A Annual Certification of Regional Center 3,035 0
N–400 Application for Naturalization* 640 595
N–470 Application to Preserve Residence for Naturalization Purposes 355 330
N–565 Application for Replacement Naturalization/Citizenship Document 555 345
N–600/N–600K Application for Certificate of Citizenship 1,170 600/5503
USCIS Immigrant Fee 220 165
Biometric Services Fee 85 85

*Certain low-income naturalization applicants may pay a filing fee of $320 plus the $85 biometric services fee. For eligibility details and filing instructions, see Form I-942, Request for Reduced Fee and Form N-400, Application for Naturalization.

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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 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.

A number of employers have reported receiving suspicious letters being sent to L-1A executives.  The letters use incorrect grammar, and claim to be signed by Lori Scialabba, Deputy Director of USCIS.  Upon learning of these suspicious letters, The American Immigration Lawyer’s Association (AILA) reached out to U.S. Citizenship and Immigration Services (USCIS), which confirmed that USCIS did not send the letters.  If you receive a similar letter that appears to be a scam (see sample below), please send a copy to Public.Engagement@uscis.dhs.gov, with the subject line “L-1A Executive Letter Scam.”  If you are unsure of the authenticity of any correspondence you receive from USCIS, contact your immigration attorney at Fox Rothschild for assistance.

L-1A Executive Letter Scam

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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.

On December 18, 2015, President Obama signed The Consolidated Appropriations Act, 2016 (Public Law 114-113) into law, which increased fees for certain H-1B and L-1 petitioners. This law effectively reinstates PL 111-230, which sunset on Sept. 30, 2014, but increases the applicable fees.  According to the new law, H-1B visa petitioners who employ 50 or more employees in the United States, where more than 50 percent of those employees are in H-1B or L (including L-1A and L-1B) nonimmigrant status, must pay an additional fee of $4,000 for the first H-1B petition it files for an employee and $4,500 for the first L-1A and L-1B petition it files.  These new fees apply to all filings postmarked on or after December 18, 2015.

The fee only apply to certain H-1B and L-1/B Petitions, as follows:

  • Initially to grant status to a nonimmigrant described in subparagraph (H)(i)(b) or (L) of section 101(a)(15) of the Immigration and Nationality Act; or
  • To obtain authorization for a nonimmigrant in such status to change employers.

This fee DOES NOT apply to extension requests filed by the same petitioner for the same employee.

This fee is in addition to the form filing fee fee, Fraud Prevention and Detection Fee, American Competitiveness and Workforce Improvement Act of 1998 fee (when required), and the Premium Processing fee, if elected.

On January 13, 2015, USCIS sent out the web alert notifying the stakeholder that USCIS was “in the process of revising Form I-129, Petition for a Nonimmigrant Worker, and Form I-129S, Nonimmigrant Petition Based on Blanket L Petition, to reflect the provisions of Public Law 114-113. Petitioners should continue to complete Item Numbers 1.d. and 1.d.1 of Section 1 of the H-1B and H-1B1 Data Collection and Filing Fee Exemption Supplement (Page 19 of Form I-129) and Item Numbers 4.a. and 4.b. of the L Classification Supplement (Page 22 of Form I-129).”

Petitioners and the attorneys should be on alert that USCIS may begin rejecting petitions received on or after Feb. 11, 2016 that do not complete Item Numbers 1.d. and 1.d.1 of Section 1 of the H-1B and H-1B1 Data Collection and Filing Fee Exemption Supplement and Item Numbers 4.a. and 4.b. of the L Classification Supplement, or include the additional Public Law 114-113 fee, if applicable.  The additional fee required under PL 114-113 will remain in effect until September 30, 2025.

H-1B and L-1 employers who were subject to Public Law 111-230 and required to pay an additional filing fee of either $2,000 (H-1B) or $2,250 (L-1) do not need to pay these fees for petitions filed on or after Oct. 1, 2015. This additional fee only applied to certain companies with large numbers of H1B and/or L-1 workers and expired on Sept. 30, 2015 because the law that mandated them, Public Law 111-347, enacted on Jan. 2, 2011 (amending the original law, Public Law 111-230, enacted on Aug. 13, 2010), extended the fees only through Sept. 30, 2015.

The additional fees imposed under this law dramatically increased the cost of filing H-1B and L-1 petitions for those companies with more than 50 employees in the United States, where at least 50 percent of the employees were in H1B or L-1 status.

All other H-1B and L-1 fees, including the Base fee, Fraud Prevention and Detection Fee, and American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) Fee, when applicable, are still required.  Petitions with incorrect fees may be rejected.  Petitioners are reminded that USCIS prefers separate checks for each filing fee.

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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.

If you’re waiting for your employment card or greencard to be issued, your wait may be slightly longer than usual by a few weeks. 

AILA (the American Immigration Lawyers Association) provided notice that there have been reports of delayed issuance of employment cards (EADs) and of US Permanent Residence cards.  The delay is not in the adjudication period, but rather in the amount of time between the date of an approval and the date when USCIS issues the EAD or greencard to the beneficiary. 

The delay is said to result from maintenance measures at one of the card-production facilities, which in turn necessitated the temporary transfer of card production processes to a different facility.  The timings are expected to return to normal sometime in the second half of September.

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Ms. Wadhwani is a partner in the Immigration Practice Group at Fox Rothschild LLP.  She may be reached at cwadhwani@foxrothschild.com.

 

The US Department of State (State Department or DOS) computer systems are not expected to be online again before next week after experiencing “technological systems issues” (a hardware failure) on June 9th. This information came from the State Department yesterday, June 17th, in an update following their initial announcement regarding the problem last Friday, June 12, 2015.

This has caused DOS’s Bureau of Consular Affairs to experience issues affecting overseas passport and visa systems.  This systems issue is without restriction to particular countries, documents or visa types.  Indeed, the effect seems to reach everyone from the nonimmigrant visa applicant, to the US citizen in need of a passport abroad.

Assistance from the State Department is available to nonimmigrant visa applicants who need to travel for urgent humanitarian reasons and DOS has indicated that it is always able to issue an emergency passport to a US citizen who is overseas and has an urgent need to travel.

Yet, one should be prepared that visa appointments and issuance of some visas will be delayed.  A June 15th update from the State Department said that some visa applicants will “be contacted directly to reschedule their appointments”.

Affected parties will want to seek the guidance of immigration counsel to assess potential impacts on employment start dates and such questions as whether in-country processing is available and should be used for a change or extension of nonimmigrant status instead of processing abroad, among other possible issues.

DOS stated that the “failure is preventing the Department from processing and transmitting biometric data checks at visa-issuing embassies and consulates.”  This affects the Department’s ability to meet its legal  requirements to screen  visa applicants before issuing visas for travel.  The State Department offered its apologies to those affected and indicated that it has more than 100 private and public sector computer experts working “around the clock” to resolve the problems as quickly as possible while of course keeping in mind its responsibility to screen visa applicants as part of its critical border security responsibilities.

DOS stated that it will continue to provide regular updates on their website, travel.state.gov.

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Catherine Wadhwani is a Partner in the Immigration Practice Group at Fox Rothschild LLP.  She may be reached at cwadhwani@foxrothschild.com.

 

In the spring of 2013, Customs and Border Protection changed its procedures and implemented an automated process for generating I-94 admission records electronically. As such, foreign visitors to the U.S. arriving via air or sea no longer need to complete paper Customs and Border Protection Form I-94 Arrival/Departure Record or Form I-94W Nonimmigrant Visa Waiver Arrival/Departure Record (for those using visa waiver/ESTA).

This not, however, relieve foreign nationals from their obligation to present documents evidencing their status in the U.S.   Proof of status may be needed by employers, schools/universities or government agencies.  Accordingly, foreign visitors MUST access their CBP arrival/departure record information online to retrieve a paper print out.

We recommend that all foreign travelers access their electronic I-94 records by visiting www.cbp.gov/I94 and printing a hard copy of the record as soon as possible upon your arrival into the U.S. This is now the only mechanism by which foreign nationals can retrieve I-94 record information, if no paper I-94 card was issued into the passport upon arrival into the U.S.

It is important that foreign nationals retrieve and review their I-94 record as soon as possible after entry to verify that the record reflect the correct visa status and expiration date.   The I-94 record controls the term and length of admission to the U.S. so accuracy in the record is critical to every foreign national’s status in the United States.

In generating the electronic I-94 record, CBP converts travelers’ arrival/departure information automatically from their electronic travel records. This means that, by and large, the information imported into the I-94 records system is information entered by hand by airline personnel (not government officials).  As such, it is imperative that you are precise when providing your information to the airline and vigilant with regard to managing flights (if you fail to cancel a booked flight without enough notice, it could cause an incorrect record to be generated indicating a departure, which will then have to be corrected.)

CBP continues to issue a paper form I-94 at land border ports of entry.

Information from CBP on the I-94 Process:

Upon arrival, a CBP officer stamps the travel document of each arriving non-immigrant traveler with the admission date, the class of admission, and the date that the traveler is admitted until. If a traveler would like a paper Form I-94, one can be requested during the inspection process. All requests will be accommodated in a secondary setting.

Upon exiting the U.S., travelers previously issued a paper Form I-94 should surrender it to the commercial carrier or to CBP upon departure. Otherwise, CBP will record the departure electronically via manifest information provided by the carrier or by CBP.

This automation streamlines the entry process for travelers, facilitates security and reduces federal costs. CBP estimates that the automated process will save the agency $15.5 million a year.

For more information and for answers to frequently asked questions, see the I-94 Fact Sheet.

The CBP INFO Center offers questions and answers for I-94.

 

Happy travels!

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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.

 

There was a time, FY 2006, when 92% of all L-1B Specialized Knowledge visa petitions were approved. 

 In FY 2014, the L-1B approval rate is down to 65%. 

 A study published by the National Foundation for American Policy cites the chilling USCIS statistics as to the adjudication of L-1B applications over the course of time—material changes in the numbers are reported, with no regulatory change.

 The L-1 visa status is for intra-company transferees, individuals who are being transferred from a company’s affiliate, branch, subsidiary or parent overseas to the US to perform executive, managerial or “specialized knowledge” work in the US.  The L-1A is for transferred executives or managers; the L-1B is for those with “specialized knowledge”.  The NFAP report focuses on L-1B visa petitions, but that does not mean that L-1A applications have not suffered from similar trends.  

 Based on data from the US Citizenship and Immigration Service (USCIS), the report’s revelations include:

 * USCIS L-1B denial rates are higher for specialized knowledge employees who are already in the US and seeking to extend their status (41% in FY14) than for  initial L-1B petitions (32 %).

* The denial rate for Indian nationals was 56% for FY2012-14, as compared to Canadian nationals who were denied at a rate of only 4% during the same time period.

*The rate of issuance of Requests for Evidence (RFEs) in FY 2014 was 45%, as compared with only 2% in FY 2004.

 As to the RFEs, AILA’s Bob Deasy is quoted as follows:  “What is most concerning is that RFE and denial templates and rationales are developed behind the scenes in a policy vacuum; moreover, hyper-exacting evidentiary and documentary demands made by USCIS undermine the principle of ‘totality of the evidence’ and the preponderance of the evidence standard.

 The report concludes: ”The significant increase in denial rates and requests for evidence in recent years illustrates that USCIS adjudicators have made it difficult for companies to transfer their own employees within a company to work in America.  In a highly competitive global marketplace, the consequence is that companies become more likely to move out of the United States-or to invest in America in the first place-to avoid the difficulties of the U.S. immigration system.”      

 Transfer with caution!

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Robert S. Whitehill is the Chair of the Immigration Practice Group at Fox Rothschild LLP.  He may be reached at rwhitehill@foxrothschild.com.