TPS Statuses Extended By Court Injunction

Nationals of El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan holding TPS will have their legal status extended while the preliminary injunctions of Ramos, et al. v. Nielsen and  Saget, et al., v. Trump, et al. are in effect. 

Temporary protected status, or TPS, is given to nationals of countries that the Secretary of Homeland Security deems unsafe for return due to reasons such as war or epidemic. These ongoing lawsuits challenge the termination of TPS for the aforementioned countries and have resulted in a temporary extension for TPS expiration dates. 

EADs with code A-12 or C-19 are extended through January 4, 2021, as are I-94s and I-797s issued under TPS. 

The extension applies only to EADs with an expiration date of one of the following:

07/22/2017 | 11/02/2017 |
01/05/2018 | 01/22/2018 | 03/09/2018 | 06/24/2018 | 07/05/2018 | 11/02/2018 |
01/05/2019 | 04/02/2019 | 06/24/2019 | 07/22/2019 | 09/09/2019 |
01/02/2020 | 01/05/2020 | 03/24/2020 |

Forms I-94 and I-797 from certain dates of validity will have their expiration date extended to January 4th, 2021. The Federal Register notice lists them as follows:

The TPS holder must remain eligible for his/her status during this extended period. Applicants must have filed for re-registration of TPS during the most recent DHS-announced period or have their re-registration pending. 

The extension is temporary and the court cases ongoing. Should TPS go on to be eliminated for these countries, it would take place at least a certain number of days after appellate mandate to the district court.  For Honduras, Nepal, Nicaragua, Haiti and Sudan, termination would be at least 120 days from any court decision. Elimination of TPS for El Salvador would take place at least 365 days from issuance of a court mandate. This is to provide some time for affected TPS holders to take action before they lose status. 

For now, TPS nationals of the affected countries should stay updated on the latest changes. They can work with an experienced immigration attorney to see what their options are, depending on which direction the cases go. 

EB-5 Modernization Update to take Effect November 21st

USCIS is set to move forward with the EB-5 Immigrant Investor Program Modernization rule that was announced on July 24, 2019. The EB-5 visa's purpose is to allow foreign investors that invest in the U.S. economy and create jobs to adjust their status. The changes will affect I-526 investor petitions filed on or after November 21st, 2019 and are meant to account for inflation and current unemployment.

Minimum investment values have increased. The minimum investment for a targeted employment area (TEA) is now $900,000 USD, while the non-TEA investment minimum is $1.8 million USD. The old values were $500,000 USD and $1 million USD, respectively.

The changes are mostly to do with the definition of targeted employment areas (TEA). TEA are regions that would benefit greatly from economic investment. They are either rural or high unemployment areas. The definition of "rural" is clarified in the new rule as an area that is both 1) not a Metropolitan Statistical Area (MSA) and 2) not within the boundary of a city or town that has 20,000 or more in population, according to the most recent decennial census. 

"High unemployment area" has been redefined, as well. States will no longer have the ability to designate areas within their boundaries as high unemployment. Hence, letters from the State government doing so are no longer accepted as evidence that an area is a TEA. Instead, applicants wanting to invest in a TEA must provide unemployment data for the relevant MSA, county, or town/city. A case-specific area can also be accepted as a TEA if sufficient levels of unemployment are demonstrated. This is done by calculating the average unemployment rate of the area's and adjacent area's census tracts and demonstrating that it meets the threshold of 150% of the average national unemployment rate. Accepted unemployment data can come from U.S. Census Bureau or the Bureau of Labor Statistics.

The new rule includes a section on priority dates. The priority date from a previously approved EB-5 petition can be carried over to any EB-5 petition filed on or after November 21st, 2019. Petitions filed before November 21st, 2019 will be subject to the old investment standards and definition of TEA. 

Immigration Filing Fee Increases Proposed - Naturalization Fee Upped to $1,170

The Department of Homeland Security (DHS) has proposed fee changes for almost every immigration application, and a majority of them are increases. The most substantial increase is the naturalization filing fee, which almost doubles from $640 to $1,170.

DHS states that if USCIS continues to operate at current fee levels, it would experience an average annual shortfall of $1,262.3 million. 

Some filing fee calculations will change, namely those for Form I-485 Application to Adjust Status. Currently, the filing fee for forms I-765 and I-131 are waived if they are filed together with an I-485 application, with only a one-time filing fee of $1,225. DHS is proposing to remove the bundle fee waiver and applicants must pay for the filing fees separately for each and every I-765 or I-131 application that they file.  While the application fee for I-485 is slightly reduced to $1120, the I-765  and I-131 filing fees will increase to $490 and $585 respectively.

Another I-485 fee change is that children under 14 years-old would no longer have a reduced fee.

Form I-129 Petition for Nonimmigrant Worker would also undergo substantial changes with this proposal. DHS has created new I-129 petitions, each for a different worker classification and each with its own fee. The table below shows this information. Every worker category would see a filing fee increase from the current I-129 filing fee of $460.

Filing fees for many applications would increase, some by a huge margin. The following table illustrates these proposed changes for some of the most common applications:

Proposed Filing Fee Changes

  

	Immigration benefit request	Current fee ($)	New fee ($)
N-400	Naturalization	640	1,170
N-600	Application for Certificate of Citizenship	1,170	1,015
N-600K	Application for Citizenship and Issuance of Certificate Under Section 322	1,170	960
I-90	Replace Permanent Residence Card	455	415
I-102	Replacement/Initial Nonimmigrant Arrival-Departure Document	445	490
I-212	Permission to Reapply for Admission into the U.S. After Deportation or Removal	930	1,040
I-290B	Notice of Appeal or Motion	675	705
I-131	Travel Document	575	585
I-765	Employment Authorization	410	490
I-485, I-765, & I-131	Application to Register Permanent Residency or Adjust Status, Employment Authorization, & Travel Document	1,225	2,195
I-539	Extend/Change Nonimmigrant Status	370	400
I-751	Remove Conditions on Residence	595	760
I-129H1	I-129 H-1B - Named Beneficiaries	460	560
I-129H2A	I-129 H-2A - Named Beneficiaries	460	860
	I-129 H-2A - Unnamed Beneficiaries	460	425
I-129H2B	I-129 H-2B - Named Beneficiaries	460	725
	I-129 H-2B - Unnamed Beneficiaries	460	395
I-129L	Petition for L Nonimmigrant Worker	460	815
I-129O	Petition for O Nonimmigrant Worker	460	715
I-129CW, I129E&TN, I129MISC	CNMI-Only Nonimmigrant Transitional Worker;  Application for Nonimmigrant Worker: E and TN Classification; Petition for Nonimmigrant Worker: H-3, P, Q, or R Classification.	460	705
I-129F	Petition for Alien Fiancé(e)	535	520
I-130	Petition for Alien Relative	535	555
I-140	Immigrant Petition for Alien Worker	700	545
I-601	Waiver of Ground of Excludability	930	985
I-601A	Application for Provisional Unlawful Presence Waiver	630	960
I-526	Immigrant Petition by Alien Entrepreneur	3,675	4,015
I-824	Application for Action on an Approved Application or Petition	465	500
I-829	Petition by Entrepreneur to Remove Conditions on Permanent Resident Status	3,750	3,900
-	Biometrics Services	85	30

Note that biometrics services fees would reduce from $85 to $30. I-140 petitions fees would reduce from $700 to $545. 

DHS will accept comments from the public for 30 days after publishing the proposal in the Federal Register. A final rule incorporating this feedback will release afterwards.  To avoid paying the proposed increased fees, applicants should file their petitions as soon as possible. For example, if you are eligible for naturalization, do not wait to submit your N-400 application.

Proposal to Eliminate Asylum EAD 30/90 Days Processing Time Frame

Asylum seekers typically are dealing with very difficult circumstances, which asylum law tries to address with certain rules. Under current law, USCIS must adjudicate an asylum seeker's I-765 application within 30 days. DHS has proposed to remove this 30-day time frame.

The I-765 application is very important for an asylum seeker. It is for an Employment Authorization Document (EAD), which would allow them to work in the United States. Asylum cases take a long time to process, especially given the current backlog of cases. Not receiving an EAD within a month would make it hard for the asylum seeker to support themselves while their case is pending.

DHS cites security and resource allocation reasons for this proposal. The growing backlog of asylum cases has made it harder to keep up with the 30 day EAD adjudication time frame. DHS explains that having a longer time frame to make a decision allows for more thorough security and fraud investigations. 

Another change included in this proposal is the removal of the 90 day submission requirement for EAD renewal applications. This change is meant to reduce confusion regarding EAD renewals and to align with regulations of other EAD categories. The 2017 AC21 rule already allows for an automatic 180-day extension of certain types of EADs if a renewal application is filed before the expiration date. DHS cites that this is enough to cover gaps in work authorization, and that the 90 day requirement is unnecessary.  This is one less burden for asylum seekers. 

The proposal was published on September 9, 2019 in the federal register. DHS will take comments and suggestions and alter the proposal as necessary.

DUIs Will Affect Eligibility for Naturalization and Other Benefits

Certain forms of immigration benefits or relief, including naturalization and cancellation of removal, will only be granted to those that demonstrate "good moral character".

Cancellation of removal is available to those undergoing deportation who have shown good moral character in the 10 years leading up to the decision, among other requirements. The Attorney General can grant the applicant relief and confer permanent resident status to him/her.

Recently, an Attorney General decision, Matter of Castillo-Perez, held that having 2 or more DUI convictions presumes lack of good moral character for cancellation of removal.  Although an applicant can rebut this presumption with strong evidence showing that the DUIs are "aberrations" of their otherwise good moral character, it is unclear from the decision what such contrary evidence can be.

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The term "good moral character" is somewhat abstract. The statute INA 101(f) lists some behaviors and conditions that would preclude a finding of good moral character. Someone who is a habitual drunkard or whose income is from illegal gambling lacks good moral character. Someone who has been convicted of a serious criminal offense during the relevant period, who gave false testimony to gain immigration benefits, or who participated in things like genocide, torture, and killing does not have good moral character. Notably, someone who has been jailed for a total of at least 180 days during the relevant period is also determined not to have good moral character. Outside of these conditions, however, law officials have discretion to judge a person's good moral character. 

The Attorney General's decision introduces another level of complexity to what constitutes "good moral character". The decision counts all state and federal convictions of DUI against the applicant. Yet, the definition of DUI differs with jurisdiction. All 50 states have their own definition, some relatively lax and some harsh. New Jersey, for example, does not classify a DUI as an indictable offense but as a traffic violation. Statutes in different jurisdictions also have different elements and defenses regarding DUI offenses.  Consequently, the decision in Matter of Castillo-Perez covers a broad range of behaviors that have different levels of culpability.

Although the relief sought in the case is cancellation of removal, its impact will be felt in other applications, especially naturalization applications, which require applicants to have at least 5 years of good moral character.

It is noteworthy to know that the courts have held that simple DUIs are not "crimes involving moral turpitude," and they do not bar a foreigner from applying for a U.S. visa or render a person deportable from the U.S. The Attorney General clearly intends to further tighten the requirements for immigration benefits by this decision.

It is uncertain how future decisions involving DUIs and good moral character will play out. For now, if you have one or more DUI convictions, you should first consult with a qualified immigration attorney before submitting an immigration petition.  

H-1B Visa Fraud and "Benching"

It is important to be truthful in any immigration visa or petition. Lying to gain immigration benefits is a serious crime and has severe consequences. The much-sought H-1B specialty occupation visa, filed by companies petitioning for foreign workers, has particularly strict requirements.

This is especially so for companies, mostly IT consulting firms, that assign employees to different projects at client sites. They must provide extra evidence in the form of an itinerary and various project documents. The project has to be real and ongoing and the sponsored employee must work on it and be paid. Failure to show this in a petition will result in denial. Attempts to defraud the system are heavily punished, as evidenced by the recent sentencing of a CEO of two Washington IT companies.

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The Washington CEO was sentenced to 87 months in prison for crimes relating to an extensive H-1B visa fraud scheme. The companies would hire and sponsor employees to work on fake projects, then "bench" the employee with no pay or job until they could be assigned to actual clients. This tactic was dubbed "bench-and-switch". The projects presented in the petitions were nonexistent and forged documents were provided as evidence.  Homeland Security Investigations, the Diplomatic Security Service, and IRS-Criminal Investigation investigated the IT companies. It was found that over 250 foreign workers were granted employment visas and brought into the country this way.

These companies were clearly trying to defraud the immigration system. Companies petitioning for foreign workers should ensure they follow the rules and requirements of the H-1B visa program. The Trump Administration has been particularly harsh in reviewing H-1B petitions.  Note that "benching" sponsored employees is illegal. The employee must work on the project their visa was approved for.  

If you are a petitioner and unsure whether you are correctly following H-1B regulations, it is recommended that you seek professional legal advice to avoid legal liabilities. 

Premium Processing Fee Raised to $1440

U.S. Citizenship and Immigration Services announced today that the fee for premium processing services (I-907) will be increased to $1,440 from $1,410 starting on Nov. 29, 2019.  The new fee will apply to premium processing service forr Form I-129, Petition for a Nonimmigrant Worker, and Form I-140, Immigrant Petition for Alien Worker. Premium processing service is commonly requested in conjunction with H-1B, L-1A, and other employment visa petitions.

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Premium processing is an optional service available to applicants if they want to have a decision within 15 days.  The fee is additional to all other filing fees.  

Mandatory Health Insurance Requirement for Immigrants Effective November 3, 2019

Anyone who applies for an immigrant visa on or after November 3rd, 2019 must show to the consular officer that they will have health insurance within 30 days of entry or that they have the resources to pay for foreseeable medical costs. Those unable to meet this requirement will have their visa denied.

This is a change prompted by the Presidential Proclamation on Health Care by President Trump. Although it is possible that a court may stop the enforcement of this rule at the last minute, as of now intending immigrants should be prepared to meet this new visa requirement. 

Accepted healthcare programs include employer-sponsored plans, visitor health insurance or short-term plans of at least 364 days or until the beginning of extended travel out of the U.S., unsubsidized health plans from the market, and a family member's health plan. Others include U.S. military health plans, catastrophic plans, medical plans under Medicare, and anything else that qualifies according to the Secretary of Health and Human Services. The program must begin within 30 days of entry.

Applicants can also show that they have financial resources that can cover reasonably forseeable medical costs. Specifics as to how much are not given. It is likely an amount that takes into account the applicant's health and is judged at the discretion of the consular officer.

It is highly recommended that immigrant visa applicants prepare beforehand for this part of the interview. Applicants should find a health insurance plan and verify that it qualifies or prepare evidence to demonstrate their sufficient financial resources.  If U.S. plans are not available, on should look into visitor health insurance that covers at least 364 days.

Visa Bulletin Predictions - October 2019 and beyond

Every month after the release of the monthly visa bulletin, DOS Visa Office Chief Mr. Charlie Oppenheim provides his insights on the trends, movements, predictions, etc. regarding the usage of immigrant visa numbers. The following are his most important insights following up on the publication of the October 2019 visa bulletin.

F2A remains current in November and demand continues to remain low. Charlie expects that a final action date will not be needed in the near future. Family preference categories for the Philippines will continue to advance rapidly.

EB-1 Worldwide has very low demand compared to past years. EB-1 Philippines and Vietnam advanced 5 weeks as predicted, while EB-1 China advanced 3 months as predicted.

EB-1 India has not advanced and will not until at least February. Charlie says that 17% of the EB-1 India numbers set aside for Q1 have already been given out. EB-1 China and India would only advance significantly if EB-1 worldwide demand were below annual limits.

EB-1 worldwide will likely return to being current after April of this fiscal year.

Charlie notes that there has been noticeable increase in EB-3 upgrades to EB-2 for India.

EB-3 has had much more worldwide demand this year, much to Charlie's surprise. EB-3 Worldwide is expected to remain current through January.

Charlie predicts that the 8 month difference in final action date for EB-3 and EB-2 China will result in downgrades to EB-3. There has already been a spike in downgrade requests. The result of this is that EB-3 has not advanced in November. These downgrades will allow EB-2 to advance at the expense of delaying movement in EB-3.

All countries except Mexico, El Salvador, Guatemala and Honduras are current under EB-4 category
EB-4 India should remain current for now, although it is projected to need a final action date in as early as Q2 this fiscal year.

Charlie is set to give a presentation in Seattle about EB-5 status on October 29, 2019. Hence, projections for that category will come at a later date.

DHS Memo reinforces that OPT jobs must be related to studies

Many foreign students participate in the Student and Exchange Visitor Program (SEVP). As part of the program, students are authorized to work under Optional Practical Training (OPT) in a field related to their studies.

The Department of Homeland Security (DHS) recently published a memo regarding the OPT program clarifying the employment process.

First and foremost, employment must match the student's field of study.  OPT employment must also be approved by the Designated School Official (DSO). However, students are not required to have a job offer before starting the process of gaining DSO approval and applying for the related Employment Authorization Document (EAD). This may seem counter-intuitive, but it prevents complications, e.g. students and employers waiting for approval to start work only to receive a denial. 

Some jobs may initially seem unrelated to the student's field. DHS gives the example of a musician working at a restaurant. The connection is clear once we learn that the job is to perform music in the restaurant.

The way DHS ensures that the OPT employment is related to the student's field is by requiring a brief written explanation from the student. It is to be provided to the SEVIS website by the student or through his/her DSO. The explanation must include: job title, employer name, major area of study, if the job is full-time or a specified average number of hours per week, and the explanation of the job's regular duties and how they relate to the student's studies.

The process is similar for post-completion OPT and the extension OPT for STEM students. The DSO has the role of approving OPT employment and informing the student to only take on jobs directly related to their studies.  STEM OPT applicants must provide their DSO with a completed and signed Form I-983 Training Plan for STEM OPT students.

Failure to comply with these rules can render a student out of status and affect any future applications.

Presidential Candidates Position on Immigration

Twelve candidates participated in the fourth Democratic Party presidential debate last Thursday in Ohio.  While it is still too early to know who the final party nominee will be, according to the polls the top five forerunners are: Joe Biden, Pete Buttigieg, Bernie Sanders, Elizabeth Warren and Andrew

Yang. What are these candidates' positions on immigration?

All five candidates have expressed a need for change in border policy and ICE methods, condemning Trump's zero tolerance policy that has separated and detained families. Warren and also Sanders in particular have voiced the need to restructure ICE, while Yang says he would instead direct ICE to focus on those engaging in criminal activity. Buttigieg has spoken of a need to evaluate ICE practice to end and prevent problems like the current family separation crisis.

The lead candidates also believe that a path to citizenship should be available even to the undocumented. They also believe that DACA should be reinstated. Biden and Buttigieg have stated that those under DACA, or DREAMers, should qualify as Americans.  Warren and Sanders believe that three and ten year bars should be repealed. Sanders wants to expand DACA and provide immediate legal status for those eligible under the program. Warren supports DACA and wants to expand it to cover more young people through measures such as eliminating the application age requirement. She also says a fair path to citizenship should be available for DACA, TPS, and DED holders. Yang specified that he supports a shorter path to citizenship for TPS and DED immigrants, who are here legally, than for illegal immigrants.

There is overall support toward refugees and putting more resources toward border security. All five candidates except Yang agreed they want to raise the refugee cap to at least 110,000 a year. Warren wants to raise the refugee cap to 125,000 in the first year, then to 175,000 by the fourth year.  Buttigieg wants to increase resources toward mitigating immigration and asylum backlogs. Yang supports raising the cap as well, stating that by how much is to be determined by specific circumstances. He also wants increased resources toward processing the asylum backlog and securing the border. Sanders has stated that he supports expanding the asylum process and aiming deportation at dangerous individuals.

In general, their policies are supportive of immigrants and putting resources toward securing the border without building new barriers. Biden has not given much specifics on his immigration policy, while Warren's proposals are the most strongly pro-immigration. Yang and Buttigieg are more moderate in their support for refugees and changing ICE's methods of border control. Sanders strongly supports ICE restructuring and social programs such as a government health program for undocumented immigrants.  Further details should be released from the remaining candidates once we get closer to the Democratic Party primaries.

November 2019 Visa Bulletin: Employment Advances; F2A Remains Current

There are some positive movements in both family-based and employment-based categories in the November visa bulletin.  

EB-1 and EB-2 China advance 3 months and 2.5 months respectively. 

EB-1 India stays the same. The rest of the EB-1 categories advance 40 days to 06/01/2018. 

EB-3 Philippines advances 109 days to 02/01/2018. 

EB-4 Mexico moves advances 82 days to 07/22/2017. 

Family 1st Philippines advances 2.5 months while the rest of the countries move forward for 1.5 months. 

Family 2A remains CURRENT for all countries. Spouses and minor children of green card holders may continue to apply for adjustment of status in November. 

AD: Dates for Final Action (Green Card Approval)              FD: Dates for Filing Applications Only

Family		Other Countries	China	India	Mexico	Philippines
F1	AD	03/01/2013	03/01/2013	03/01/2013	08/08/1997	09/15/2008
	FD	09/01/2013	09/01/2013	09/01/2013	11/15/1999	03/15/2009
F2A	AD	C	C	C	C	C
	FD	09/01/2019	09/01/2019	09/01/2019	09/01/2019	09/01/2019
F2B	AD	07/08/2014	07/08/2014	07/08/2014	08/22/1998	10/01/2008
	FD	01/08/2015	01/08/2015	01/08/2015	04/22/1999	04/01/2009
F3	AD	10/15/2007	10/15/2007	10/15/2007	02/22/1996	06/01/1998
	FD	04/15/2008	04/15/2008	04/15/2008	07/15/2000	12/01/1998
F4	AD	01/01/2007	01/01/2007	10/15/2004	12/15/1997	09/01/1998
	FD	07/01/2007	07/01/2007	06/15/2005	01/01/1999	03/01/1999

1st: Unmarried Sons and Daughters of Citizens (about 23,400 per year).

2A: The 2 "A" preference is for Spouses and Children (under 21 & unmarried) of LPR's.

2B: The 2 "B" Preference is for Unmarried Sons and Daughters (21 or older) of LPR's.

3rd: Married Sons and Daughters of Citizens (about 23,400 per year)

4th: Brothers and Sisters of Adult Citizens. (about 65,000 per year)

  

Employment		Other Countries	China	El Salvador Guatemala Honduras	India	Mexico	Philippines	Vietnam
EB1	AD	06/01/2018	02/01/2017	06/01/2018	01/01/2015	06/01/2018	06/01/2018	06/01/2018
	FD	07/01/2019	09/01/2017	07/01/2019	03/15/2017	07/01/2019	07/01/2019	07/01/2019
EB2	AD	C	03/15/2015	C	05/13/2009	C	C	C
	FD	C	08/01/2016	C	07/01/2009	C	C	C
EB3	AD	C	11/01/2015	C	01/01/2009	C	02/01/2018	C
	FD	C	03/01/2017	C	02/01/2010	C	C	C
Other Workers	AD	C	02/01/2008	C	01/01/2009	C	02/01/2018	C
	FD	C	08/01/2008	C	02/01/2010	C	C	C
EB4	AD	C	C	07/01/2016	C	07/22/2017	C	C
	FD	C	C	08/15/2016	C	C	C	C
EB5	AD	C	11/01/2014	C	12/08/2017	C	C	11/15/2016
	FD	C	01/01/2015	C	C	C	C	C

1st: Priority Workers (Extraordinary ability aliens, multinational companies executives/managers, outstanding 

prof./researchers)

2nd: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability.

3rd: Skilled Workers, Professionals, and Other Workers (Unskilled.)

4th: "Special Immigrants" (Religious & others)    

5th: Employment Creation (Investors)