USCIS Premium Processing Fee Increase Effective December 2, 2019
US Citizenship and Immigration Services (USCIS) announced beginning on December 2, 2019, the premium processing fee will increase to $1,440 from the current fee of $1,410 for Form I-129, Petition for a Nonimmigrant Worker, and Form I-140, Immigrant Petition for Alien Worker. Premium processing is an optional service currently authorized for certain petitioners filing Forms I-129 or I-140. The premium processing system allows petitioners to request 15-day processing of these forms if they pay an extra fee.
According to USCIS, this increase reflects the full amount of inflation from the implementation of the premium processing fee in June 2001 through August 2019 based on the Consumer Price Index for all Urban Consumers (CPI-U). USCIS last increased the fee in 2018.
TPS extended for Syria
On September 23, 2019, USCIS published a notice in the Federal Register of the extension of the designation of Syria for Temporary Protected Status (TPS) for 18 months, from October 1, 2019, through March 31, 2021. The reregistration period runs from September 23, 2019, through November 22, 2019.
USCIS will issue new Employment Authorization Documents (EAD) with a March 31, 2021, expiration date to eligible beneficiaries under Syria’s TPS designation who timely re-register and apply for an EAD. Given the timeframe for processing TPS re-registration applications, USCIS recognizes that not all re-registrants will receive a new EAD before their current EAD expires on September 30, 2019. Accordingly, USCIS has automatically extended the validity of those EADs for 180 days, through March 28, 2020. This automatic extension also covers individuals who have an EAD with an expiration date of March 31, 2018, and who applied for a new EAD during the last re-registration period but have not yet received their new EAD.
The Department of State (DOS) released instructions on how to apply for the 2021 Diversity Immigrant Visa Program
The DOS annually administers the statutorily-mandated Diversity Immigrant Visa Program. The Immigration and Nationality Act (INA) provides for a class of immigrants known as “diversity immigrants” from countries with historically low rates of immigration to the United States. For Fiscal Year 2021, 55,000 Diversity Visas (DVs) will be available. There is no cost to register for the DV program and it is safe for non-immigrant only visa holders to apply (i.e., F, J, etc.).
Applicants who are selected in the program (selectees) must meet simple but strict eligibility requirements to qualify for a diversity visa. The DOS determines selectees through a randomized computer drawing. The DOS distributes diversity visas among six geographic regions, and no single country may receive more than seven percent of the available DVs in any one year.
For DV-2021, natives of the following countries are not eligible to apply, because more than 50,000 natives of these countries immigrated to the United States in the previous five years: Bangladesh, Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, El Salvador, Guatemala, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam. Persons born in Hong Kong SAR, Macau SAR, and Taiwan are eligible.
Applicants must submit entries for the DV-2021 program electronically at dvlottery.state.gov between noon, Eastern Daylight Time (EDT) (GMT-4), Wednesday, October 2, 2019, and noon, Eastern Standard Time (EST) (GMT-5), Tuesday, November 5, 2019. Do not wait until the last week of the registration period to enter, as heavy demand may result in website delays. No late entries or paper entries will be accepted. The law allows only one entry per person during each registration period. The DOS uses sophisticated technology to detect multiple entries. Individuals with more than one entry will be disqualified. Please visit the DOS website for instructions.
New Travel Resource Page from Study in the States
Department of Homeland Security (DHS) through its Study in the States website has updated its resources about the steps an F-1 student should take before traveling outside of the United States. Students who travel internationally, for annual vacation or during a school break, should take the appropriate steps before any travel to ensure a smooth reentry into the United States which includes:
Meet with Designated School Official (DSO)
When meeting with the DSO, F-1 students should ensure that their record in the Student and Exchange Visitor Information System (SEVIS) is up-to-date and in Active status.
F-1 students should make sure their Form I-20, “Certificate of Eligibility for Nonimmigrant Student Status” is signed by the DSO within the last year, and that travel outside the country is not for more than 5 months. F-1 students should also make sure that they have the school’s most up-to-date contact information, including both a daytime telephone number at the school and a 24-hour emergency phone number.
If the F-1 student has a pending practical training application, it is not recommended that the F-1 student leave the United States. United States Citizenship and Immigration Services (USCIS) may send a request for evidence while the F-1 student is travelling.
If USCIS approves the F-1 student’s practical training application, the F-1 student will receive an Employment Authorization Document (EAD), which USCIS will only send to a U.S. address. The F-1 student is expected to have the EAD in hand to re-enter the United States. Visit the Travel page on ICE.gov/SEVP for more information about traveling with pending applications.
What to Bring to U.S. Ports of Entry
When entering the United States, the F-1 student will arrive at a port of entry and meet with U.S. Customs and Border Protection (CBP) officers for primary and sometimes a secondary inspection.
The CBP officer may ask questions about the reason for travel and to inspect important documents like:
Student visa
Form 1-20
Passport
The passport must be valid for at least six months after the date of reentry for certain countries.
Be sure to hand-carry all of these items and do not put them in checked baggage.
Form I-515A
If the F-1 student arrives at a U.S. port of entry without the signed required documents, has not paid the I-901 SEVIS Fee on the current Form I-20 or has a SEVIS status issue, a CBP officer may issue the F-1 student a Form I-515A, “Notice to Student or Exchange Visitor.” The Form I-515A admits the F-1 student to the United States for 30 days while the F-1 student obtains and submits the proper documentation to SEVP.
Reminder: I-9s for H-1Bs effective October 1, 2019
If your company filed for an H-1B worker in the annual H-1B lottery and the petition was approved, these new H-1B statuses should have effective start dates of October 1, 2019. As such, the employee “status” may be changing from one status to that of H-1B. Employers must either: 1) execute an I-9 for a new employee; or 2) update/reverify the current I-9 to capture this change of status.
If you have questions about I-9 compliance, please feel free to schedule a consultation with our I-9 team (info@iandoli.com).
Check-in with Department of State’s Charlie Oppenheim regarding the October 2019 Visa Bulletin
In October, we typically see full recovery, or essentially full recovery, of the Final Action Dates from the previous year. Until several years ago, stakeholders could normally anticipate that low levels of demand would allow for thousands of unused numbers from EB-4 and EB-5 to become available for use in the EB-1 category. Not only have those numbers not been available in recent years, the high demand for numbers has required the application of Final Action Dates for all countries, and the dates for China and India have actually retrogressed during the past year. Going into the upcoming fiscal year, there is no expectation that there will be any extra unused numbers available to EB-1 India and EB-1 China in the foreseeable future. Charlie anticipates that both EB-1 India and EB-1 China will be subject to their minimum statutory limits of (approximately) 2,803 visa numbers for at least the first half of fiscal year (FY) 2020.
EB-1
Charlie would like to remind immigration practitioners that for planning purposes they should not expect any of the EB-1 categories to become current at any time in the foreseeable future. Charlie further predicts that there will not be any movement for EB-1 India until January 2020 at the earliest. There are currently approximately 16,000 EB-1 India applicants that were interviewed, adjudicated, and are simply waiting for a visa to become available. Potential upgrades from EB-2 India could make EB-1 India backlogs worse. EB-1 India is expected to remain severely backlogged for years, but it is too early to predict what the date movement may be in the coming years.
Potential EB-1 movement:
Worldwide:
Up to 3 months
China:
Up to 3 months
India:
Little if any forward movement
EB-2
EB-2 India will continue to have limited forward movement for the foreseeable future. This is also true to a lesser extent for EB-2 China, which reflects a change from years past where there was generally a full recovery from early year retrogression. Due to an overall increase in EB-2 China, Charlie does not expect a full recovery in FY2020. EB-3 China does not appear to have the same level of demand at this time. With the inversion of the EB-2 and EB-3 dates, it is possible the EB-2 downgrades will impact movement of the EB-3 China date later in FY2020.
At this point, demand is within the amount of available numbers to satisfy the needs for EB-2 and EB-3 worldwide. Should increasing levels of demand begin to materialize it may necessitate setting a Final Action Date for either EB-2 and/or EB-3 worldwide at some point during the second half of the fiscal year.
Potential EB-2 movement:
Worldwide:
CURRENT
China:
Up to 2 months
India:
Up to 1 week
EB-3
EB-3 has returned to "current" status for worldwide. There has been a partial recovery of the dates for EB-3 India, EB-3 China, and the EB-3 Philippines categories. There may be irregularity in movement for these categories as Charlie does not have as much visibility into pending demand. EB-3 India will have little if any forward movement until possibly January 2020.
As discussed above, at this point, demand is keeping pace with available numbers to satisfy the needs for EB-2 and EB-3 worldwide. In the coming months, increased demand may materialize which would necessitate setting a priority date for EB-2 and/or EB-3 worldwide.
Demand has been steadily increasing for EB-3 Other Workers. Of particular note is the tremendous increase in demand for EB-3 Other Workers from Mexico. The Final Action Date is typically the same for EB-3 and EB-3 Other Workers, however, separate dates may need to be imposed for some categories later in FY2020.
Potential EB-3 movement:
Worldwide:
CURRENT
China:
Little if any forward movement
India:
Little if any forward movement
Mexico:
Will remain at the Worldwide date
Philippines:
Up to several months
October 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. The October 2019 visa bulletin marks the start of the new fiscal year. A two-chart system, “Final Action Dates” and “Dates for Filing Applications,” in the Visa Bulletin was introduced back in 2015 but rarely has the “Dates for Filing Applications” chart been permitted for Employment Based filings, until this October.
This month however, Employment Based petitions should use the Dates of Filing chart in establishing eligibility to file the I-485 Adjustment of Status petitions. Since last month’s retrogression of all preference categories, there has been significant advancement in many, but not all, preference categories. This means that those who filed the Form I-140 on or before the date given in the Visa Bulletin are able to file for or be granted permanent resident status.
While the EB-1 preference category for all countries other than China and India remains backlogged, there was considerable advancement moving to July 1, 2019, meaning that 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. China and India remain backlogged to September 1, 2017 and March 15, 2017, respectively.
The EB-2 preference category has returned to being “current” for all countries other than China and India which means that individuals in these categories may immediately file I-485 applications. China and India remain backlogged to August 1, 2016 and July 1, 2009, respectively.
Because of the difference in dates on the two charts, I-485 applications filed now may be pending for lengthy periods of time; however, the opportunity to file the I-485 applications is available now.
If you have questions about planning, please feel free to reach out and schedule a consultation with one of the attorneys (info@iandoli.com).
New Expedited Removal Policy
Created in 1996 under President Bill Clinton, expedited removal is a process by which low-level immigration officers can quickly deport certain noncitizens who are undocumented or have committed fraud or misrepresentation. Since 2004, immigration officials have used expedited removal to deport individuals who arrive at our border, as well as individuals who entered without authorization if they are apprehended within two weeks of arrival and within 100 miles of the Canadian or Mexican border.
On July 23, 2019, Department of Homeland Security (DHS) announced that it is significantly expanding expedited removal, starting “on or about” September 1, 2019, to apply throughout the United States to individuals who have been in the United States for less than two years. The July 23 announcement expands the use of expedited removal to cover the whole country and to apply to noncitizens who have been in the United States for under two years. Thus, DHS will now apply expedited removal to all noncitizens who are inadmissible under relevant regulations and who have not been continuously physically present in the United States for at least two years, no matter where in the country Immigration and Customs Enforcement (ICE) or Customs and Border Protection (CBP) encounters them. This significant expansion will mean that DHS officers in the interior of the country will be able to bypass immigration court and put noncitizens directly on a fast track to removal.
In addition to the implementation date, the ICE guidance has several important details on how expanded expedited removal will be implemented:
Limited Anticipated Use of Expedite Removal:
The memo notes that ICE anticipates that the expansion of expedited removal will be "primarily used by ICE in the Criminal Alien Program and worksite enforcement contexts."Individuals Must Be Given Opportunity to Provide Evidence:
The memo clearly states that individuals "shall" be given a "brief but reasonable opportunity" to obtain evidence of their physical presence or communicate with someone to obtain such evidence if they are not able to provide that evidence at the time of their encounter with ICE.Affirmative Burden:
The memo states that the noncitizen "bears the affirmative burden to show to the satisfaction of the encountering immigration officer that he or she has been physically present in the United States continuously for the two-year period immediately preceding the date of the determination of inadmissibility by providing evidence establishing the place, date, and manner of entry into the United States and continuity of presence since that time." Note that the guidance instructs officers that the noncitizen has the burden to establish continuous presence by providing evidence on the circumstances of entry and the continuity of presence since that time. The relevant statute, however, dictates that a person is not subject to expedited removal if they were admitted to the United States or can establish physical presence for at least two years.Physical Presence Records:
The memo provides a non-exhaustive list of evidence that can be used to show the necessary physical presence requirement, including but not limited to: bankbooks, leases, deeds, licenses, bills, receipts, letters, birth records, church records, school records, employment records, evidence of prior law enforcement encounters or tax payments, and/or the person's oral statements.Discretionary Factors:
The memo specifies factors that discretionary officers could use when deciding whether to put someone into §240 removal proceedings instead of expedited removal proceedings. Those factors include: whether the case presents mental competency issues, whether the person is the sole caregiver of a US Citizen child, whether the person would be eligible for relief in §240 removal proceedings, the duration of the person's physical presence in the U.S., the extent of the person's ties to the country, and whether ICE will seek to charge additional inadmissibility grounds (for example, due to the person's criminal history).
New Public Charge Rules effective October 15, 2019
On August 14, 2019, Department of Homeland Security (DHS) published a final rule governing the public charge grounds of inadmissibility. Unless currently pending litigation halts implementation of the rule, it will go into effect on October 15, 2019.
The American Immigration Lawyers Association (AILA) provided the following summary:
The DHS final rule dramatically changes the standard by which the Department determines whether an applicant for adjustment of status or admission is "likely at any time to become a public charge" and therefore inadmissible to the United States (note that some noncitizens, such as asylees and refugees, are exempt from public charge determinations).
Under the final rule, USCIS removes the consideration of whether an individual is primarily dependent on public benefits, redefining public charge as a noncitizen who receives a specified public benefit for more than 12 months in the aggregate within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months).
The final rule defines a public benefit as:
1. Any federal, state, local, or tribal cash assistance for income maintenance, including:
a. Supplemental Security Income (SSI)
b. Temporary Assistance for Needy Families (TANF)
c. Federal, state, or local cash benefits programs for income maintenance (often called "General Assistance" in the State context, but which also exist under other names);
2. Supplemental Nutrition Assistance Program (SNAP);
3. Section 8 Housing Assistance under the Housing Choice Voucher Program as administered by HUD;
4. Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation) under Section 8 of the U.S. Housing Act of 1937;
5. Medicaid, with certain exceptions, such as benefits received by individuals under the age of 21 and pregnant women (or for a period of 60 days after the last day of pregnancy); and
6. Public housing under section 9 of the U.S. Housing Act of 1937
A sufficient affidavit of support will not be outcome-determinative as to whether an individual is likely at any time in the future to become a public charge. Rather, to make that assessment, USCIS adjudicators will apply a complex totality of circumstances test that weighs the alien's age; health; family status; education and skills; and assets, resources, and financial status, taking into account a broad range of positive and negative factors. USCIS notes in the final rule that it interprets "likely at any time" to mean that it is "more likely than not" that the individual at any time in the future will receive one or more public benefits as defined by the rule.
One heavily weighted negative factor is an applicant's receipt of specified public benefits for 12 or more months in the aggregate within any 36-month period, beginning no earlier than the 36 months prior to the application for adjustment of status or adjustment. Critically, however, DHS will not regard as a negative factor the receipt of specified benefits prior to the rule's effective date, with the exception of cash assistance and long-term institutionalization benefits that DHS already considers relevant to the public charge determination under current policy.
Iandoli Desai and Cronin, P.C. will continue to monitor the ongoing litigation regarding the public charge change and will provide updates as they become available.
USCIS Resumes Non-Military Deferred Action Requests
Following the public and legislative outcry of US Citizenship and Immigration Service’s (USCIS) abrupt announcement in August that it would stop accepting and adjudicating applications for deferred action for non-military applicants, USCIS has now reversed course.
As reported in previous newsletters, non-military "deferred action" is a form of temporary relief from deportation for immigrants facing special and often life-threatening circumstances. The August shift in the long-standing policy put lives in danger, including the lives of children facing serious medical conditions like cancer, epilepsy, cystic fibrosis, and HIV. USCIS' actions threatened such individuals with deportation and loss of access to essential treatment.
However, on September 19, 2019, the Department of Homeland Security alerted members of the Oversight & Reform Committee that at the discretion of Acting Secretary McAleenan it would resume “consideration of non-military deferred action requests on a discretionary, case-by-case basis, except as otherwise required by an applicable statute, regulation, or court order.”
From the first reports of this change in policy, the national American Immigration Lawyers Association (AILA), including Iandoli Desai & Cronin’s own Madeline Cronin, has played a role in shedding important light on this issue and those impacted, taking action by encouraging members of Congress to hold USCIS accountable, and sharing stories of the change’s implications on their clients. These collective efforts have been crucial to the reversal of this policy.