Proposed H-1B Registration Fee Rule Pending Review at OMB
On May 22, 2019, Department of Homeland Security (DHS) published its Spring 2019 Fall Unified Agenda of Regulatory and Deregulatory Actions, which provides the public with an overview of anticipated federal regulatory activity. The regulations featured in the Unified Agenda and the timelines stated are aspirational and are not strictly adhered to by DHS.
Included in the agenda is a proposed H-1B Registration Fee, entitled "Fee for Registration Requirement for Petitioners Seeking To File H-1B Petitions on Behalf of Cap Subject Aliens." The proposed rule is described as follows:
The Department of Homeland Security (DHS) will propose to amend its regulations to require a fee for H-1B registrations required by 8 CFR 214.2(h)(8)(iii)(A)(1).
It is our understanding that USCIS will propose a nominal fee of approximately $10-20 for each registration that is submitted for an H-1B cap-subject petition. This small fee is in response to comments received on the Registration Requirement for Petitioner Seeking to File H-1B Petitions on Behalf of Cap-Subject Aliens Rule that took effect on April 1, 2019.
Given that the proposed H-1B Registration Fee rule was delivered to the OMB for review shortly after it was announced on the Spring Unified Agenda, we expect that this proposed rule will be published this summer and anticipate that USCIS will seek to finalize before the FY2021 H-1B cap filing period begins.
Check-in with Department of State’s Charlie Oppenheim regarding the July 2019 Visa Bulletin
General Trends and Observations: In the July 2019 Visa Bulletin, Charlie modifies previous projections for EB-1, EB-2 and EB-3 Worldwide, based on new data received from USCIS. This data reflects a rapid increase in actual demand across these categories that has materialized over the past month, and projections of continued higher levels of demand during the summer than had been experienced through mid-May.
EB-1:
The Final Action Date for EB-1 Worldwide remains the same at April 22, 2018. Furthermore, Charlie predicts that there will be retrogression in this category as early as August 2019. If demand trends allow, the goal is that the Final Action Date in this category will return to the current level (i.e., April 22, 2018) in October 2019.
The Final Action Date for EB-1 India remains the same at January 1, 2015. No further forward movement will occur in this category during FY2019. If possible, Charlie's goal is for EB-1 India to return to a Final Action Date of February 22, 2017 in October 2019.
EB-1 China will advance approximately two months to May 8, 2017 in July. No additional forward movement is expected in this category for the remainder of FY2019. This preference may also become subject to the corrective action that Charlie mentions above for EB-1 Worldwide. The reason why EB-1 China was able to advance in July is that, unlike India, China has otherwise unused numbers in the EB-4 category that "fall up" to EB-1 to allow additional number usage. In contrast, there is sufficient EB-4 India number usage which restricts the ability to have unused numbers "fall up" to EB-1 India.
Charlie expects that going forward EB-1 Worldwide, EB-1 China, and EB-1 India will have distinct Final Action Dates. He also expects that the Final Action Dates for EB-1 China and EB-1 India will differ, with both lagging behind the Final Action Date for EB-1 Worldwide.
EB-2:
The June 2019 pace of demand continues to be higher than earlier in FY2019. This is in combination with USCIS's projected high summer usage.
Based on this data, whereas Charlie previously believed EB-2 Worldwide might remain current through FY2019, this no longer remains the case. Charlie now anticipates that this category will have a Final Action Date imposed during FY19, and possibly as early as August 2019. At this time, he is unable to predict how far back the date imposed might be. As Charlie knows how many numbers remain available and how many USCIS predicts will materialize, he will continue to watch the demand in this category very closely. While it is possible that the Final Action Date for EB-2 Worldwide will hold in August 2019 and be limited to September 2019, AILA members are cautioned to file any current cases through the month of July 2019, as it is unclear whether these priority dates will still be current in August 2019. Charlie's goal is, if possible, to return the Final Action Date for this category to current in October 2019.
In July, EB-2 China advances three months to November 1, 2016. Charlie predicts that this category may share a Final Action Date with the EB-2 Worldwide category, if corrective action is required for EB-2 Worldwide in August 2019.
EB-2 India advances 5 days to April 24, 2009 in July. Charlie predicts that this category will continue to advance at a pace of up to one week until the limit is reached.
EB-3:
As with EB-2, Charlie is starting to see heavy demand in the EB-3 category, in addition to USCIS projections for additional demand. This demand is causing similar changes in the projections for this category.
Whereas Charlie had been predicting that EB-3 Worldwide seemed likely to remain current through FY2019, that is no longer the case. Charlie has now modified his prediction and expects retrogression at some point during this fiscal year, perhaps as early as August 2019.
EB-3 China advances 3.5 months to January 1, 2016 in July, and EB-3 China Other Workers advances about two months to November 22, 2007. Charlie continues to predict advancement of up to several months for the EB-3 category.
The Final Action Date for EB-3 India continues to hold at July 1, 2009, with little if any forward movement predicted in the immediate future. Last year, action on all of the pre-adjudicated EB-3 India numbers from the 2007 Adjustment of Status filings were finalized. Charlie's only visibility to the demand in this category comes from new filings, which are coming in at a steady pace. Part of the reason that this category was allowed to advance is that Charlie assumed that the rest of the world numbers would not be used, as had been the case for the past five fiscal years. However, this year there are no extra EB-3 numbers available from other countries to transfer to EB-3 India. Therefore, in order to limit future use of numbers, any required corrective action for EB-3 Worldwide will also impact the Final Action Date for EB-3 India.
If you have questions about planning, please feel free to reach out and schedule a consultation with one of the attorneys (info@iandoli.com).
July Visa Bulletin
Each month, the U.S. Department of State publishes the Visa Bulletin, listing all "preference" categories and states whether or not a backlog exists for each one. For July 2019, there continues to be a worldwide backlog for all applicants for the EB-1 "Priority Worker" preference category. As in previous months, the final action dates remain steady. This means that only those who filed Form I-140 on or before the date given in the Visa Bulletin are able to file for or be granted permanent resident status. The listed date for all countries other than China and India in the EB-1 category is April 22, 2018. China and India are backlogged to May 8, 2017 and January 1, 2015, respectively, meaning that only those applicants whose I-140 was filed on or before that date are able to file Form I-485 to become permanent residents, or if their I-485 applications are already pending, to be approved.
While, in the EB-2 preference category, there is currently no backlog for the worldwide numbers (except for China and India). China EB-2 numbers are backlogged to November 1, 2016 and India EB-2 is backlogged to April 24, 2009.
These backlogs may require employers or immigrants to extend H-1B, O-1, and other nonimmigrant categories until such time that visa numbers do become available, so it is strongly advised to plan accordingly and to allow enough time so that no gap exists which could affect the ability of the applicant to work in the United States and/or travel abroad. We will be checking each month to monitor the Visa Bulletin and will provide updates.
Increased Fees for International Students, Scholars, Exchange Visitors, and SEVP-Certified Schools
The Department of Homeland Security (DHS) has finalized changes to fees charged by the Student and Exchange Visitor Program (SEVP) to international students, exchange visitors and SEVP-certified schools. The new fees took effect June 24, 2019.
Fee increases include:
The I-901 SEVIS Fee for F and M international students increased from $200 to $350.
DHS maintained the $35 I-901 SEVIS Fee for J exchange visitors in the au pair, camp counselor, and summer work travel program participant categories, but increased the full I-901 SEVIS Fee for other J exchange visitors from $180 to $220.
The SEVP school certification petition fee for initial certification increased from $1,700 to $3,000.
New fees include:
A $1,250 fee for SEVP-certified schools filing a petition for recertification.
A $675 fee when schools file the Form I-290B, “Notice of Appeal or Motion.”
DHS maintained the $655 fee for an initial school site visit but will also charge this fee when a SEVP-certified school changes its physical location or adds a new physical location or campus to its Form I-17, “Petition for Approval of School for Attendance by Nonimmigrant Student.”
Regulation requires all prospective international students, scholars, and exchange visitors to pay the I-901 SEVIS Fee before the U.S. Department of State issues a visa. Students and exchange visitors who paid the I-901 SEVIS Fee prior to the fee implementation date, but before they obtain a visa or enter the United States, will not need to pay the difference between the new fee and the old fee. Students and exchange visitors will continue to pay the I-901 SEVIS Fee on FMJfee.com.
Schools will continue to pay all fees related to the Form I-17 at Pay.gov. Should a school file an initial certification or recertification petition, petition update or Form I-290B, and it is not adjudicated before the fee implementation date, the school will not be required to pay the new or increased fee retroactively.
Citizenship and Adjustment of Status Interviews May Be Conducted at Different Locations to Improve Processing Times
USCIS announced at the end of June that it will implement a national strategy to decrease differences in processing times based on location for Form N-400, Application for Naturalization, and Form I-485, Application to Register Permanent Residence or Adjust Status.
Since the end of the Fiscal Year (FY) 2017, filings were up 15.6% from FY 2016, and FY 2016 filings were up 25.5% from FY 2015. Because the increased filing volumes did not affect the USCIS field offices equally, the processing times among field offices differed vastly. As a result, caseloads will now be shifted between field offices to decrease processing times.
This means an applicant may be scheduled for an interview at a field office outside of their normal jurisdiction, geographic location. Applicants may also receive other types of notices (such as a Request for Evidence) from a field office outside of their normal jurisdiction. Luckily, these caseload changes will not affect where applicants attend their biometrics appointments. In the event the applicant is not able to travel to the field office, they may reschedule the appointment, but this will likely result in further delays in processing the naturalization or adjustment of status petition.
USCIS Expands Digital Delivery of FOIA Requests
In May 2018, US Citizenship and Immigration Services (USICS) announced the initial rollout of FOIA Immigration Records System FIRST, which allowed requestors to create a USCIS online account to receive requested documents digitally.
In keeping with the transition to online services, USICS announced at the end of June the expansion of FIRST. USCIS online account holders can submit requests online for their own records, and soon will be able to submit requests for non-A-File materials. Later this year, users will be able to make requests on behalf of another person.
Iandoli Desai & Cronin will continue to provide updates as the FIRST system continues to expand.
Travel to Cuba Update
On June 4, 2019 the Associated Press reported that the current administration imposed major new travel restrictions on visits to Cuba by U.S. citizens, including a ban on many forms of educational and recreational travel.
The Treasury Department said in a statement that the U.S. will no longer allow the group educational and cultural trips known as “people to people” travel to the island. Those trips have been used by thousands of American citizens to visit the island even before the U.S. restored full diplomatic relations with the communist government in December 2014.
Treasury said it would also deny permission for private and corporate aircraft and boats. However, commercial airline flights appear to be unaffected and travel for university groups, academic research, journalism and professional meetings will continue to be allowed.
“It kills the people-to-people category, which is the most common way for the average American to travel to Cuba,” said Collin Laverty, head of Cuba Educational Travel, one of the largest Cuba travel companies in the U.S. ...
... The new restrictions had been previewed by national security adviser John Bolton in an April speech in Miami to veterans of the failed 1961 Bay of Pigs invasion but details of the changed were public until Tuesday. Treasury said the sanctions would take effect on Wednesday after they are published in the Federal Register."
Treasury/Commerce Press Release here. OFAC Q&A here. OFAC final rule here.
Dream and Promise Act passes the House
By a vote of 237 to 187, seven Republicans joined 230 Democrats, on June 3, in passing the Dream and Promise Act (H.R. 6) in the U.S. House of Representatives.
“This legislation includes a permanent path to U.S. citizenship for immigrant youth, including recipients of Deferred Action for Childhood Arrivals (DACA), and individuals with temporary protected status (TPS) or deferred enforced departure (DED). This bill is much broader than past versions of the Dream Act debated in previous sessions of Congress because of the inclusion of TPS and DED, and there is an elimination of upper age limits to ensure protections go beyond immigrant youth to include more people who've been in the country for decades.“
Check-in with Department of State’s Charlie Oppenheim regarding the June 2019 Visa Bulletin
Check-in with Department of State’s Charlie Oppenheim regarding the June 2019 Visa Bulletin
General Trends and Observations: Employment-based (EB) adjustment of status applications filed on or after March 6, 2017 require an in-person interview at the local USCIS District Field Offices. As of 2017, only 14,000 to 15,000 applications were processed at USCIS District Offices. At this time, the majority of adjustment of status applications are now at the local USCIS offices. Initial concern that this policy would lead to longer processing times resulted in an increase in consular processing. Although the consular processing of employment-based immigrant visas continues to be elevated, Charlie believes that this trend may subside as people become more comfortable with the USCIS adjustment of status interview process.
Based on the number use through the first half of FY2018, Charlie was concerned that number usage for the year might be 10-15,000 lower than the annual limit due to lower than normal number use by USCIS Offices. However, beginning in mid-April 2018, USCIS doubled its number use in several employment preferences, which in turn necessitated imposition of a final action date for
EB-1:
EB-1 Worldwide demand remains steady. The Final Action Date is likely to hold as Charlie continues to monitor demand trends. If there is any movement in this category, it is not expected to move more than 6 weeks. Charlie does not anticipate that EB-1 Worldwide will return to "Current" in the foreseeable future.
Charlie also indicated that EB-1 India will not advance again this fiscal year. It should return to a Final Action Date of February 22, 2017 in October 2019.
EB-1 China is expected to advance to May 8, 2017 in the July 2019 bulletin.
EB-2:
EB-2 Worldwide is expected to remain current through FY19. Some downgrades are contributing to changes in demand for this category.
EB-2 China will advance to November 1, 2016 in the July 2019 bulletin. This category continues to advance rapidly due to low demand. Advancements in this category could slow in the future if demand increases.
EB-2 India will continue to advance very slowly, in daily movements, or up to one week at the most. Charlie noted that there are 14,000 Indians with pending adjustment of status applications filed in 2012 in the queue for numbers in this category. Lower Worldwide EB-2 demand may allow for the advancement of this date during the summer. This situation is being closely monitored.
EB-3:
Charlie anticipates that EB-3 Worldwide should remain current through FY19. There is always a possibility that it would be necessary to impose a final action date later in the fiscal year, but only if demand increases. Currently, that does not appear likely.
EB-3 China should advance to January 1, 2016 in July 2019. Demand in this category is starting to increase. However, if demand in EB-2 China remains steady, it may be possible to shift some of those numbers to EB-3 China.
The Final Action Date for EB-3 India will hold in July 2019. Earlier in the year, Charlie hoped he would have more overflow from unused Worldwide EB-3 numbers to shift to EB-3 India, but that has not happened to the extent expected. Since Charlie lacks visibility of this demand, he cannot speculate on how long the wait might be for this category, or when it will move forward.
If you have questions about planning, please feel free to reach out and schedule a consultation with one of the attorneys (info@iandoli.com).
June Visa Bulletin
Each month, the U.S. Department of State publishes the Visa Bulletin, listing all "preference" categories and states whether or not a backlog exists for applicants in those categories or from those countries for submitting their green card applications. For June 2019, there continues to be a worldwide backlog for all applicants for the EB-1 "Priority Worker" preference category. As in previous months, the final action dates remain steady. This means that only those who filed Form I-140 on or before the date given in the Visa Bulletin are able to file for or be granted permanent resident status. The listed date for all countries other than China and India in the EB-1 category is April 22, 2018. China and India are backlogged to February 22, 2017 and January 1, 2015, respectively, meaning that only those applicants whose I-140 priority dates are on or before that date may file Form I-485 to seek permanent resident status, or if their I-485 applications are already pending, to be approved. DOS predicts that there will be little movement in first quarter of 2019 for EB-1 China, EB-1 India and EB-1 Worldwide. Based on the information provided by USCIS, it appears that there is sufficient EB-1 demand to reach the annual limits this year, which would prevent EB-1 Worldwide from returning to “current” status on October 1, 2019, the start of the government’s new fiscal year.
While, in the EB-2 preference category, there is currently no backlog for the worldwide numbers (except for China and India). China EB-2 numbers are backlogged to August 1, 2016 and India EB-2 is backlogged to April 19, 2009. EB-2 India and EB-3 India according to the Final Action Date Chart are almost identical which is a significant turn of events as traditionally the EB-3 category has a much longer backlog. Some employers may want to consider “downgrading” their Indian employees from EB-2 to EB-3 in the near future if EB-3 continues to move more quickly.
These backlogs may require employers or immigrants to extend H-1B, O-1, and other nonimmigrant categories until such time that visa numbers do become available, so it is strongly advised to plan accordingly and to allow enough time so that no gap exists which could affect the ability of the applicant to work in the United States and/or travel abroad. We will be checking each month to monitor the Visa Bulletin and will provide updates.