A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration lawyer. We serve clients in all U.S. states and overseas countries. (All information is not legal advice and is subject to change without prior notice.)

Contact: 732-632-9888, http://www.1visa1.com/

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Friday, October 16, 2020

Premium Processing Fee Increased to $2500 Effective 10/19/2020




USCIS announcement:  The I-907 premium processing service fee will be increased from $1,440 to $2,500 for applications postmarked on or after October 19, 2020.  The new fees apply to all eligible applications except for I-129 petitions requesting H-2B worker or R-1 religious nonimmigrant status. The fee increase for H-2B and R-1 petitions will be from $1,440 to $1,500. 


Updated I-907

USCIS also released a new edition of the I-907 application for premium processing services dated 09/30/2020.  Starting on Dec. 16, 2020, USCIS will only accept the 09/30/20 edition of I-907.  


Monday, October 12, 2020

New Rules Restricting H-1B Program and Hiking Prevailing Wages



The Trump Administration issued new directives to restrict the H-1B visa program and substantially increase the prevailing wages that employers must pay foreign workers.  

Two new Interim Final Rules (IFRs) affecting hiring of foreign workers were published on October 8, 2020:   

(1) “Strengthening the H-1B Nonimmigrant Visa Classification Program” rule by the DHS/USCIS will take effect 60 days after the date of publication, and

(2)   “Restructuring of H-1B/H-1B1/E-3 and PERM Wage Levels” rule by the DOL took effect immediately upon publication. 


Restrictions on H-1B Visa Program

The H-1B rule essentially attempts to regulate the same issues that were previously raised by USCIS in many Requests for Evidence and case decisions, some of them have already been decided by court decisions.  They include:

  • The required degree must be in a specific specialty or specialization:  There must be a direct relationship between the subject area of the required degree and the duties of the position.  Accordingly, generalized or broad degree types such as engineering, liberal arts, business, etc., without further specialization are not sufficient to support an H-1B petition.
  • The required degree in a specific specialty must "always", not "normally" or "usually",  be a minimum requirement for entry in the occupation in the United States.
  • Third-party worksite is defined as "worksite, other than the beneficiary's residence in the United States, that is not owned or leased, and not operated, by the petitioner."  If an H-1B worker is placed to work at a third-party worksite, the H-1B petition can only be approved for a maximum of one year.
  • Employer may not only show that it has the right to control H-1B employees but also must actually exercise that right to control.  
  • Employer will be required to provide contracts, work workers, letters, etc., from clients and third parties to prove any third-party worksite engagement. 

Substantial Increases in Foreign Worker Wages

The new rule by DOL substantially increases the wage requirements for H-1B and E-3 "specialty occupation" programs as well as permanent resident (green card) applications.  These wage requirements are governed by the "prevailing wages" set by the Labor Department based on their salary surveys in each employment location.  

Currently there are 4 levels of prevailing wages set by the DOL.  The new rule increases level 1 wage from 17th percentile to 45th percentile; level 2 wage from 34th percentile to 62nd percentile; level 3 wage from 50th percentile to 78th percentile; and level 4 wage from 67th percentile to 95th percentile.  

For example, the level 1 wage of a software developer in the New York and Newark metropolitan area has been increased from $78,811  to $116,251.  Such increases will be financially prohibitive for many employers. 

DOL has indicated that it will not reopen previously issued and approved prevailing wages in LCA or labor applications.  However, all new H-1B and EB-2 and EB-3 green card applications are already subject to the new wage increases. 


Conclusion

The review process of these regulations was shortened to almost non-existent with little or no time for public comments before implementation.  The IFR on prevailing rule took effect almost instantly upon publication.  Lawsuits will almost certainly be filed to enjoin the enforcement of these rules.  In the meantime, plans of many employers and foreign workers will surely be disrupted. Stay tuned for further development of these important issues. 


Tuesday, September 29, 2020

USCIS Fee Increases Halted By Court

A California federal court issued a preliminary injunction on the large- scale fee increases of immigration applications scheduled to take place on 10/2/2020. 

Friday, September 25, 2020

October Visa Bulletin: EB3 India Filing Date Advances 5 Years

 


(UPDATE:   USCIS has decided to use Filing Date Chart for Employment-Based categories.  Hence, downgrading from EB-2 to EB-3 will be extremely beneficial for many Indian and Chinese applicants. )

Finally the October 2020 Visa Bulletin has been released last night.  

As expected, there is little or no movement at all with the Family-Based visa categories.

For Employment-Based categories, there are substantial movements in the Filing Dates Chart.  

  • EB-1:  China and India advanced 2 years and 2 months
  • EB-2: China advances 2 months; India 1 year and 9 months
  • EB-3:  China advances 1 year 1 month; India almost 5 years; Worldwide, Mexico, Philippines all current
Interestingly, the Final Action Date Charts have movements but not as substantial.  
  • EB-1:  China advances 3 months; India 3 months
  • EB-2 China advances 1.5 months; India 2 months
  • EB-3: China advances 4.5 months; India 3.5 months; Worldwide, Mexico, Philippines all current
  • EB-4: Unavailable for Religious Workers for all countries
  • EB-5 (Regional Centers): Unavailable for Religious Workers for all countries

It appears that although visa numbers are plentiful, the State Department does not want to advance the Final Action Dates as much. Instead, it allows USCIS to control the number of green card applications to accept.  If USCIS decided to accept more I-485 adjustment applications, it would choose to use the Filing Date Chart.  

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


      Family
Other Countries
      China
India
Mexico
Philippines
F1
AD
09/15/2014
09/15/2014
09/15/2014
01/08/1998
12/15/2011
FD
07/22/2015
07/22/2015
07/22/2015
02/22/2000
10/08/2012
F2A
AD
      C
      C
      C
      C
      C
FD
08/01/2020
08/01/2020
08/01/2020
08/01/2020
08/01/2020
F2B
AD
07/08/2015
07/08/2015
07/08/2015
04/08/1999
08/01/2011
FD
05/01/2016
05/01/2016
05/01/2016
12/01/1999
04/01/2012
F3
AD
06/15/2008
06/15/2008
06/15/2008
08/01/1996
02/15/2002
FD
06/01/2009
06/01/2009
06/01/2009
08/15/2000
12/22/2002
F4
AD
09/22/2006
09/22/2006
03/08/2005
06/22/1998
01/01/2002
FD
09/15/2007
09/15/2007
11/22/2005
04/22/1999
09/01/2002

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
C
06/01/2018
C
06/01/2018
C
C
C
FD
C
09/01/2020
C
09/01/2020
C
C
C
EB2
AD
C
03/01/2016
C
09/01/2009
C
C
C
FD
C
10/01/2016
C
05/15/2011
C
C
C
EB3
AD
C
07/01/2017
C
01/15/2010
C
C
C
FD
C
06/01/2018
C
01/01/2015
C
C
C
Other Workers
AD
C
12/01/2008
C
01/15/2010
C
C
C
FD
C
10/01/2008
C
01/01/2015
C
C
C
EB4
AD
C
C
08/01/2017
C
09/01/2018
C
C
FD
C
C
02/01/2018
C
C
C
C
EB5
AD
C
08/15/2015
C
C
C
C
C
FD
C
12/15/2015
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)


(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule legal consultation.) 

Thursday, September 24, 2020

Filing Date Chart Adopted for I-485 Adjustments in October 2020


UPDATE:   USCIS has decided to use Filing Date Chart for Employment-Based categories for filing I-485 applications in October 2020.  Hence, downgrading from EB-2 to EB-3 will be extremely beneficial for many Indian and Chinese applicants.
  

They will be able to file I-140 and I-485 concurrently with I-765 (EAD) and I-131 (travel document) applications. 

See also our analysis of the October 2020 Visa Bulletin.

October 2020 Visa Bulletin Highlights: India EB-3 Filing Date Advance 5 Years!



(UPDATE:   USCIS has decided to use Filing Date Chart for Employment-Based categories.  Hence, downgrading from EB-2 to EB-3 will be extremely beneficial for many Indian and Chinese applicants. )

Finally the October 2020 Visa Bulletin has been released last night.  

As expected, there is little or no movement at all with the Family-Based visa categories.

For Employment-Based categories, there are substantial movements in the Filing Dates Chart.  

  • EB-1:  China and India advanced 2 years and 2 months
  • EB-2: China advances 2 months; India 1 year and 9 months
  • EB-3:  China advances 1 year 1 month; India almost 5 years; Worldwide, Mexico, Philippines all current
Interestingly, the Final Action Date Charts have movements but not as substantial.  
  • EB-1:  China advances 3 months; India 3 months
  • EB-2 China advances 1.5 months; India 2 months
  • EB-3: China advances 4.5 months; India 3.5 months; Worldwide, Mexico, Philippines all current
  • EB-4: Unavailable for Religious Workers for all countries
  • EB-5 (Regional Centers): Unavailable for Religious Workers for all countries

It appears that although visa numbers are plentiful, the State Department does not want to advance the Final Action Dates as much. Instead, it allows USCIS to control the number of green card applications to accept.  If USCIS decided to accept more I-485 adjustment applications, it would choose to use the Filing Date Chart.  

Or, USCIS may choose to follow the Final Action Chart to curtail the number of adjustment applications due to  limitation of agency resources.  Anyhow, we should know the answer very soon. 

UPDATE:   USCIS has decided to use Filing Date Chart for Employment-Based categories.  Hence, downgrading from EB-2 to EB-3 will be extremely beneficial for many Indian and Chinese applicants. 

Tuesday, September 22, 2020

Public Charge Rule is Back!


USCIS announced today that it will resume implementation of the Inadmissibility on Public Charge Final Rule nationwide immediately.  A federal court issued a nationwide injunction against the enforcement of the Final Rule on 07/29/2020.  The Third Circuit Court of Appeals reviewed the injunction order on two different occasions.  On 09/11/2020, the Third Circuit issued a full stay of the nationwide injunction and authorized DHS to implement the Final Rule immediately. 

On 09/22/2020, USCIS announced that it will resume implementation of the Public Charge Final Rule as follows:

  • USCIS will apply the public charge final rule to all applications and petitions postmarked or submitted electronically on or after Feb. 24, 2020, including pending applications and petitions. 
  • For applications or petitions submitted by commercial courier (for example, UPS, FedEx, or DHL), the date on the courier receipt is treated as the postmark date.
  • USCIS will not re-adjudicate any applications and petitions that were approved between 07/29/2020 and 09/22/2020 (even though the I-944 form was not submitted.).
  • USCIS will accept I-485 applications filed before 10/13/2020 without all required forms and evidence.  Requests for evidence will be issued for the missing documents.  
  • After 10/13/2020, USCIS will reject I-485 applications filed without all required forms (e.g., I-864, I-944) and evidence at the time of filing.
  • Similarly, USCIS will issue RFEs for missing evidence for I-129, I-129CW, I-539 and I-539A applications, presumably based on the same schedule above. 


The Department of State, which controls overseas visa applications, will likely follow suit soon by resuming the implementation of the Public Charge Rule.  

Visa Bulletin Predictions - October 2020 - Major EB Advancements Expected


As we are getting close to the new fiscal year, the October visa bulletin is expected to be published very soon. The ongoing pandemic makes it difficult for AILA to get DOS Visa Office Chief Mr. Charlie Oppenheim's insight about the upcoming visa bulletin. But AILA does provide some pointers by analyzing the conversations they had with Charlie and the visa bulletins for the same period in the past few years. 

Being the first month of the fiscal year, October will bring a new batch of available visa numbers by law. However, substantial advancement is not expected in Family-Based categories due to the temporary closure of the overseas visa offices during the pandemic. Movement of the Employment-Based 5th preference category (EB-5) will also likely be limited for the same reason. 

For the other Employment-Based categories, as anticipated by Charlie in July, the available visa numbers could be significantly increased with the unused Family-Based numbers from fiscal year 2020. The law allows that unused visa numbers from the previous fiscal year be used in the following year.  Charlie expected in July that the FY2021 Employment-Based numbers to be "at least 250,000", which is significant.

For FY2021, usage of the Family-Based immigrant visas is expected to remain low due to ongoing pandemic and the travel and visa bans imposed by the Trump administration. Although many consular offices are starting to reopen, they are mostly only accepting appointments for emergencies and special situations but have not yet resumed the regular visa services. 

There is a possibility that all Employment-Based categories in October 2020 will immediately become current, just like the summer of 2007.  But that possibility is dampened by the diminished agency processing capacity, caused by budgetary challenges and possible furlough of USCIS workers.  In other words, USCIS may not have the resources to handle a large influx of cases within a short period of time. 

There are also some pending bills for recapturing unused Family-Based visas back to the Family-Based categories in FY2021. But they are not likely to be passed any time soon. 

USCIS has also scheduled major fee increases and form revisions to take effect on October 2, 2020.  However, new versions of the forms have not been published yet and lawsuits have already been filed to challenge the fee increases in court.    

In sum, we are expecting to see significant forward advancements in the Final Action Dates of Employment-Based visa categories for October.  Applicants should be prepared to file their I-485 Application to Adjust Status very soon by conferring with their attorneys and collecting the required documents such as birth certificates and status documents. 

The October visa bulletin should be released in the next few days. Keeping abreast of the latest developments is very important for immigrant visa applicants during this unpredictable time.


(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule legal consultation.) 

Friday, September 11, 2020

State Department Guidance On DV-2020 Applications


The U.S. Department of State provided some guidance regarding the Diversity Visa 2020 application process on 09/09/2020 after a D.C. federal court held that Diversity Visa 2020 winners should have their visa applications processed as soon as possible before September 30th.

The State Department stated that DV-2020 applications may be processed in embassies and consular posts according to the local health conditions and resources. However, if a local consular office is not able to process cases due to local health conditions and resource constraints, an applicant may request his/her case be transferred to another embassy or consulate by contacting that new post directly. 
The State Department will prioritize the processing of applications as follows:

  • Individuals who were named plaintiffs in Gomez v. Trump and its companion cases;
  • Applicants who had already been interviewed who seek reissuance or to overcome a prior refusal;
  • Applicants who were scheduled for appointments in March, April, or May and whose appointments were cancelled due to the COVID-19 pandemic and worldwide suspension of routine visa processing;
  • For posts that have additional capacity to process applications and are not exhausted by the three categories above, applicants whose cases are pending with the Department’s Kentucky Consular Center.


Although DV-2020 applicants may be issued an immigrant visa under the court order, DV visa recipients are still subject to Presidential Trump's Proclamation 10014.  Hence, they would not be able to enter the U.S. until after the expiration date (12/31/2020) of the Proclamation, unless they meet one of the exceptions.  
If a DV-2020 applicant’s visa expires before the expiration date of 12/31/2020 of Proclamation 10014, they will be unable to enter on that visa.  More importantly, those applicants would not be issued a new visa after 09/30/2020 under the law. 
DV Applicants Present in the U.S. 
If you are a DV-2020 winner that were in the U.S. or held a valid immigrant visa, on April 23, 2020, you are exempt from PP 10014. Applicants who held DV visas on April 23 but were unable to travel and have since had their visas expired, may be reissued a DV visa before the September 30, 2020 deadline.
Travel Restrictions May Also Bar DV Applicants Entry
Further, DV applicants subject to President Trump's COVID Proclamation on travel restrictions (Brazil, Ireland, U.K., Schengen Zone countries, Iran, and China) may be interviewed and processed, but applicants who have been physically present in the affected region during the preceding 14-day period will not be issued an immigrant visa, unless excepted.

Wednesday, September 9, 2020

USCIS Fees to Increase on October 2, 2020 - Naturalization Will Cost $1,170!




The finalized USCIS fee increases will be effective on October 2, 2020.  Applications postmarked on or after October 2, 2020 must be accompanied by the new fees.  In addition to fee increases, new editions of several application forms, as well as some important policy changes, will also take effect on October 2, 2020. 


Some of the major changes under the new rule include:

1) Higher Fees and New Forms for Employment-based Non-immigrant Petitions Including H-1B, L-1, etc.

Under the final rule, USCIS separates the Form I-129 into several forms for different visa classifications, with different fees. For example, an employer who is filing for an H-1B employee will need to submit the form I-129H1 with the new fee of $555, instead of the uniformed base fee of $460. For multinational managers and executives (L-1A ) or professional employees with specialized knowledge (L-1B), employers need to file the I-129L form and pay the new fee of $805.


2) Premium Processing Time Frame Extended to 15 Business Days

The current Premium Processing service guarantees 15 calendar days adjudication to those petitioners and applicants who pay for an additional fee of $1440. The final rule is extending this time frame from 15 calendar days to 15 business days. While the premium processing time will be longer, the filing fee remains the same.  In addition, USCIS is also considering adding premium processing service for more applications.


3)  Adjustment of Status Application:   a) No More Fee Exemption for Concurrent I-765 and I-131; b) Full Payment for Children Under 14 

The final rule removes the "bundled" fee exemption for I-765 (EAD) and I-131 (Advance Parole) that are filed concurrently with an I-485 application. This change also covers the EAD/AP renewals while the I-485 is pending. The filing fees have also been increased to $550 and $560 for I-765 and I-131 respectively. For the I-485 form, the filing fee will decrease to $1130.

In addition, there will be no more discount for derivative children under 14, even if their I-485 is filed concurrently with a parent. They must pay the full payment of $1130.

4) Changes to Biometric Fees 

The final rule eliminates the separate biometric fees for most of the forms including forms I-539 and I-485. However, it establishes a biometric fee of $30 for TPS applicants and re-registrants. It also requires a separate $30 biometric services fee for Form I-765 filed by pending asylum applicants and by foreign nationals applying for status as a long-term resident of the Commonwealth of the Northern Mariana Islands (CNMI). For DACA applicants, USCIS will maintain the biometric fee of $85.

5) Online Filing Makes a Difference 

For forms that can be filed online such as I-90, N-400, N-600, and I-539 (under certain circumstances),  a $10 fee reduction will apply to online filings.


The changes in USCIS fees and fee structures are quite significant.  Petitioners and applicants should confirm carefully they are using the correct application forms and paying the correct filing fees before sending out their applications. Failure to pay the correct fees or follow the new policy changes will result in rejection of applications.


FINAL RULE FEE CHANGES

Immigration benefit request
Current fee ($)
New fee ($)
N-400
Naturalization
640
1,170 (paper filing)
1,160 (online filing)
N-600
Application for Certificate of Citizenship
1,170
1,000 (paper filing)
990 (online filing)
N-600K
Application for Citizenship and Issuance of Certificate Under Section 322
1,170
935
I-90
Replace Permanent Residence Card
455
415 (paper filing)
405 (online filing)
I-102
Replacement/Initial Nonimmigrant Arrival-Departure Document
445
485
I-212
Permission to Reapply for Admission
into the U.S. After Deportation or Removal
930
1,050
I-290B
Notice of Appeal or Motion
675
700
I-131
Travel Document
575
590
I-765
Employment Authorization
410
550 (non-DACA)
410 (DACA only)
I-485, I-765, & I-131
Application to Register Permanent Residency or   Adjust Status, Employment Authorization, & Travel Document
1,225
2,270
I-539
Extend/Change Nonimmigrant Status
370
400 (paper filing)
390 (online filing)
I-751
Remove Conditions on Residence
595
760
I-129H1
I-129 H-1B - Named Beneficiaries
460
555
I-129H2A
I-129 H-2A - Named Beneficiaries
460
850
I-129 H-2A - Unnamed Beneficiaries
460
415
I-129H2B
I-129 H-2B - Named Beneficiaries
460
715
I-129 H-2B - Unnamed Beneficiaries
460
385
I-129L
Petition for L Nonimmigrant Worker
460
805
I-129O
Petition for O Nonimmigrant Worker
460
705
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
695
I-129F
Petition for Alien Fiancé(e)
535
510
I-130
Petition for Alien Relative
535
560 (paper filing)
550 (online filing)
I-140
Immigrant Petition for Alien Worker
700
555
I-601
Waiver of Ground of Excludability
930
1,010
I-601A
Application for Provisional Unlawful Presence Waiver
630
960
I-526
Immigrant Petition by Alien Entrepreneur
3,675
4,010
I-824
Application for Action on
an Approved Application or
Petition
465
495
I-829
Petition by Entrepreneur to Remove Conditions on Permanent Resident Status
3,750
3,900
-
Biometrics Services

85
30 (TPS, I-765 for pending asylee and long-term CNMI resident program applicants)
85 (DACA applicants)




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