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.

Visas Can Be Issued; Entry Not Allowed Unless Exempted from Trump's Proclamation

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.

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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Court Exempts DV-2020 Winners from Visa Ban

The Trump Administration's visa ban has prevented immigrants from entering the U.S. through the rest of the year. Worse, many embassies and consulates remain closed while others have been directed to halt visa processing and issuance. Processing has been at a standstill for many cases, leaving qualified immigrant visa applicants at a loss.

Among the most affected are Diversity Visa (DV) lottery winners and their families, who will lose the opportunity to get a visa entirely if they do not receive it by September 30. By law, DV visas may not be issued to applicants after September 30 for the following fiscal year. 

However, due to the suspension of visa services by the State Department, there was no mechanism for DV-2020 applicants to apply for a visa based on their winning to immigrate to the U.S. 

The applicants challenged the DOS in the U.S. District Court for the District of Columbia. Federal Judge Amit Mehta, who sided with Trump on the "Muslim Ban", ruled that the DOS' refusal to process Diversity Lottery visas was unlawful. The judge said that the State Department cannot "effectively extinguish" the visa lottery "by simply sitting on its hands letting all pending diversity visa applications time out".

Judge Mehta ordered that the Diversity Lottery winners have their visa applications processed as soon as possible before September 30th. The State Department must also give a September 25th update on how many diversity visas were issued. During the September 25th briefing, it will be decided if leftover diversity lottery numbers will be reserved for next year.

Diversity Lottery winners should contact their local consulate immediately and request for an emergency appointment. This decision comes as good news as the Trump Administration has implemented a series of strict policies regarding immigration and visa issuance. Hopefully, it will lead to more relief for foreign nationals during these tough times.

Where is my EAD Card?

Many foreign nationals find themselves without proof of employment eligibility since June of this year.  For those who are still waiting for their EADs to arrive in the mail, they may present the I-797 approval notices to their employers as proof of employment eligibility for the time being.

In June 2020, USCIS announced that it had ended its contract with an outside company for production of lawful permanent resident (LPR) cards (aka "green cards") and also employment authorization documents (EADs).   Consequently, the agency has not been able to produce green cards and EAD cards fast enough for applicants. As of July 2020, there was a backlog of more than 115,000 green cards and EAD cards, according to a DHS spokesperson. 

To address this issue, USCIS announced on August 19, 2020 that it is allowing employers to accept the official approval notice of an application for EAD, Form I-797, Notice of Action, as proof of an employee's employment eligibility.  The approval notice must be dated between December 1, 2019 and August 20, 2020.  

Generally, an employer must obtain both proof of identity and proof of employment eligibility from an employee to complete the Form I-9, Employment Eligibility Verification.  Some documents such as the  green card and EAD card can serve as evidence of both an employee's identity and employment eligibility.   

Under the new policy, the EAD approval notice can only be presented as proof of employment eligibility, the employer must still request for documents establishing the identity of new employees.  For existing employees, proof of identity document should have been provided already.  

It should be noted that this exception is not listed in the Form I-9 instructions or the regulation.  Some employers may not be aware of it and careful explanation must be provided.

This limited exception is only a temporary measure valid through December 1, 2020.  For employees who have previously presented a Form I-797 approval notice instead of an EAD, they must provide a valid document to prove their employment eligibility by December 1, 2020.  Such documents can be an EAD card or other valid documents.  

USCIS has agreed, as settlement in a federal lawsuit, to produce and mail all backlogged EAD cards to applicants by October 1, 2020.  

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Proposal to Overhaul the Immigration Biometrics System

Immigrants will have to provide more than their fingerprints very soon under a new plan of the Trump Administration.  The Department of Homeland Security will soon be publishing a proposal to change how biometrics are taken and used for immigration purposes.

Biometrics are an important step in applying for many immigration benefits. Typically sometime after receiving an application, USCIS schedules a time and place for the applicant to go to an application support center and have their fingerprints and picture taken. The captured information is then used in background checks.

The new proposal would allow the use of new collection methods through voice, iris, and facial recognition technology. 

The way biometrics information is used would also change significantly. Its use would expand beyond background checks and into processes such as identity verification and secure document production.

How exactly, and thus how it will affect applicants, is not yet known.  What is clear is that more of immigrants' biometric information and data will be collected by the government. 

For example, DNA tests will also be incorporated as part of the proposed change. They can be used as evidence to establish that a claimed genetic relationship exists or does not exist. For many years, DNA tests have already been used as scientific evidence in building cases such as family petitions, especially when there is sparse other evidence.  The proposal will likely expand their usage and application. 

From what has been announced so far, it seems like biometrics collection and use will be receiving practical upgrades through technology and improved administration processing. The Notice of Proposed Rulemaking should be published soon, meaning more details will be accessible shortly.

Good News for K-1 Fiancé Visa Applicants

K visa cases should be given high priority, according to an August 31, 2020 announcement by the U.S. State Department.  

Many overseas visa applicants encountered delay after the outbreak of COVID-19 and the subsequent closure of U.S. consulates in many countries.  As the pandemic has been slowly under control, the State Department is also gradually reopening U.S. embassies and consulates worldwide.  As of August 28, the overseas consulates are authorized to give high priority to the K fiancee visa cases, which include K-1 fiancé visa and K-2 dependent visas.  

Specifically, consuls are authorized to revalidate approvals of Form I-129F petition in four month increments. The I-129F petition is normally approved for four months only.  With revalidation, U.S. citizen spouses do not need to file a new I-129F petition after the expiration of the initial approval.

However, the announcement does not indicate whether K-1 visa applicants are exempt from President Trump's visa and travel ban.  President Trump's proclamation specifically exempts spouses and children of U.S. citizens (not fiancé) from the travel and visa ban.  Hence, even with revalidated I-129F petitions, K-1 applicants still have to wait until the travel ban is over unless they qualify for other exemptions. 

Also, not all overseas consulate offices are open for business and not all visa services are offered by the reopened offices.  Hence, applicants should contact their local American Consulate or Embassy to find out what visa services are being offered.

Ripple Effect of Findream on Foreign Students

On June 26, 2020, the owner of Findream LLC and Sinocontech LLC, Weiyun "Kelly" Huang, was sentenced to 37 months in federal prison for conspiracy to commit visa fraud. These two companies provided bogus employment verification records for foreign students to extend their stay in the U.S. on F-1 and H-1B status. ICE reported that there were at least 2,686 international students involved in this matter.

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The sentencing of Kelly Huang is not the end of the story. It has created a ripple effect on all foreign nationals that have ever received an offer letter and/or employment verification document from Findream or Sinocontech for the purpose of bridging their OPT or STEM OPT unemployment period. 

These foreign nationals, many in F-1 or H-1B status, are also worried about whether any further actions will be taken by the DHS. As of now, there is no indication that DHS will be rounding up  these non-immigrant visa holders as they did in the UNNJ (University of North New Jersey) operation. Still, the Findream/Sinocontech issue has surfaced on a few different occasions, showing that it is not going away any time soon. 

The most common situation is the Request For Evidence (RFE). Foreign nationals who have a connection with these two sham companies have been cornered by RFEs during their change of status, H-1B extension/transfer, or even adjustment of status applications. These RFEs focus on the applicant's failure to maintain his/her status. Some of them even bring up the issue of misrepresentation. If an applicant has ever procured immigration benefits by misrepresentation, he/she is subject to a ground of admissibility. Their ability to enter the U.S. or apply for a Green Card will be impaired. Applicants in the U.S. may even be placed in removal proceedings.

There are also reports of Chinese students that were sponsored by Findream for OPT employment being stopped and removed by Customs and Border Protection (CBP) officers upon their return from overseas travel. Some students or workers do not even make it to a U.S. airport, having been informed that their visa had been revoked before they could board the plane. 

There are different ways to deal with this issue depending on the individual situation and plans. If an international student or foreign worker has strong evidence to prove that he/she did not have the intention to defraud the government, he/she may try to contest any fraud charge. There is a waiver available to those who can establish that their deportation will result in extreme hardship to their U.S. citizen or legal resident spouse or parent. Some others may choose to depart the U.S. to avoid an adverse finding by DHS and accrual of unlawful presence. However, given the current pandemic situation and travel bans, it may not be easy for students to go back to their home country.

Before making any decisions, we suggest that international students and foreign workers first consult with an experienced immigration lawyer to explore their options.  One person's solution may not work for another. 

Non-immigrant Visa Interviews Can Be Waived for Up to 24 Months

The U.S. State Department has just announced today (08/25/2020) that U.S. Visa Officers may waive the in-person interview requirements for applicants applying for a non-immigrant visa (NIV) in the same classification, if the applicants' previous visa expired within the last 24 months. Before the announcement, only those applicants whose NIV expired within the last 12 months were eligible for an interview waiver. 

For example, if Johnny has a B-2 visa in his passport that expired in September 2018, he may not have to be interviewed again if he applies for a new B-2 visa now.   

The new policy, which will be in effect until 12/31/2020, aims at reducing personal contacts between the Visa Officers and applicants in the era of COVID-19.  

Visa services may not be available in all locations.  Applicants are reminded to contact their local embassy or consulate to find out what visa services are available to them. 

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

September 2020 Visa Bulletin

Family Preferences

F1 and F2B:  Other Countries, China, and India advance 1 month.
F1 Philippines advances 3.5 months. F2B and F4 Philippines advance 4 months. 
F2A remains current for all countries. Spouses and minor children of green card holders may continue to apply for adjustment of status in September.

Employment Preferences

EB1 China and India advance 21 days. EB5 China and Vietnam advance 7 and 10 days respectively. Other categories remain the same.

To find out how to use the Visa Bulletin, please click here.

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	03/01/2018	C	03/01/2018	C	C	C
	FD	C	07/01/2018	C	07/01/2018	C	C	C
EB2	AD	C	01/15/2016	C	07/08/2009	C	C	C
	FD	C	08/01/2016	C	08/15/2009	C	C	C
EB3	AD	04/01/2019	02/15/2017	04/01/2019	10/01/2009	04/01/2019	04/01/2019	04/01/2019
	FD	04/01/2020	05/01/2017	04/01/2020	02/01/2010	04/01/2020	04/01/2020	04/01/2020
Other Workers	AD	04/01/2019	08/01/2008	04/01/2019	10/01/2009	04/01/2019	04/01/2019	04/01/2019
	FD	04/01/2020	10/01/2008	04/01/2020	02/01/2010	04/01/2020	04/01/2020	04/01/2020
EB4	AD	C	C	04/01/2017	C	06/15/2018	C	C
	FD	C	C	10/01/2017	C	C	C	C
EB5	AD	C	08/15/2015	C	C	C	C	08/01/2017
	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.)