On November 14th, USCIS published its biennial fee review and fee adjustment schedule in the Federal Register. The proposed rule, which would result in an overall average fee increase of 21 percent, add new fees, and make other changes, including shifting $207 million from USCIS to Immigration and Customs Enforcement (ICE), has a 30-day comment period. With over 90,000 words, the proposed rule is 3.5 times longer than comparable prior proposed rules which have been allotted the full 60 days for public comment. USCIS has not provided justification for selecting the shorter comment period despite the complexity and wide scope of the rule. Among the changes, the proposed rule would:
If finalized, the proposed rule would result in historic changes. For the first time in history, the cost of becoming a citizen would exceed $1,000. Furthermore, the U.S. would join a list of only three other countries in the world that charges applicants a fee to apply for asylum.
Fees for certain nonimmigrant-worker petitions also generally exceed the 21 percent weighted average increase with the plan of splitting of Form I-129 into different forms with different fees:
|Visa Type||Current Fee||Proposed Fee||Percentage Change|
Additionally, the rule would be harmful to businesses by relaxing the premium processing deadline from 15 calendar days to 15 business days, resulting in slower adjudications at a higher price when businesses are facing workforce shortages.
Unlike most government agencies, USCIS is fee funded. The average increase of 21 percent is the same as the last fee increase in 2016. Without the fee increase, USCIS claims it would be underfunded by approximately $1.3 billion per year, but at the same time, this increase is being used to funnel over $200 million to ICE removal operations. Nonetheless, the agency is effectively proposing to force applicants and petitioners to pay more for less. With crisis-level case processing delays, and misguided policies that intentionally create barriers to benefits, USCIS is asking the public to continue to subsidize its own inefficiencies. For example, a historic 60% RFE rate on H-1B filings which is roughly triple the prior trend, and the denial of 1-131 applications because of the applicant travel. In some areas, this is kind of like having firefighters start the actual fires they fight and then ask for more funding because they have more work to do. USCIS consistently and appropriately interpreting the law would significantly reduce their workload and overall costs and mitigate the need for such a large fee increase.
The 30-day public comment period will end on December 16th. We encourage affected applicants and petitioners to submit a comment. Thereafter, the agency will publish the final rule and the changes will go into effect.
We will continue to monitor the development of this proposed rule and timely notify employers and employees of the changes once they are finalized.
Beginning on December 2nd, to adjust for inflation, USCIS has increased the premium processing fee from $1,410 to $1,440. USCIS last increased the fee in 2018. The premium processing service allows for filers to request 15-day processing of certain employment-based immigration benefits.
On November 7th, United States Citizenship and Immigration Services (“USCIS”) announced it will require a $10 non-refundable fee for each H-1B registration, once it implements the electronic registration system. USCIS is scheduled to implement the registration process for the FY 2021 H-1B cap selection process. Upon implementation, petitioners seeking to file H-1B cap-subject petitions will first need to electronically register with USCIS during a designated registration period, unless registration has been suspended. Once a registration is selected in the lottery, USCIS will send an electronic notification specifying a timeframe in which an H-1B cap-subject petition must be filed. The agency will announce an implementation timeline and initial registration period in the Federal Register at a later time.
We will continue to provide updates as USCIS finalizes the registration process for the coming Cap Season.
On November 2nd, a federal judge in Portland, Oregon issued a temporary restraining order (TRO) blocking the administration’s implementation of a new rule requiring immigrants to prove that they will have health insurance or can pay for medical care before they can get visas. The new requirement would make it more difficult for individuals to immigrate to the U.S. The TRO will remain in effect for 28 days while the court considers whether to issue a preliminary injunction that would block the enforcement as the issue is being litigated.
On November 11th, Poland began its participation in the U.S. Visa Waiver Program (“VWP”). Under the VWP, citizens or nationals of the 39 participating countries, most of which are in Europe, are able to enter the U.S. without a visa for tourism or business purposes for up to 90 days. To enter the U.S., Travelers must have authorization through the Electronic System for Travel Authorization (ESTA) prior to boarding a U.S. bound air or sea carrier. In return, U.S. citizens and nationals are able to travel to participating countries for a similar length of time without needing a visa for business or tourism purposes. Countries in the VWP must maintain high and consistent security standards and are required to sign information sharing agreements with the U.S.
Effective November 12th, the Department of State (“DOS”) has updated its visa reciprocity schedule and limited E-1 and E-2 visas to 25 months and the L-1 and L-2 visas to 17 months for French citizens. Prior to the change, E and L visas were entitled to the maximum validity period of 60 months. Foreign nationals must have an unexpired visa to enter the U.S. The change will result in more visa applications for frequent travelers; however, the change does not impact a foreign national’s period of authorized stay. A foreign national may continue to remain in the United States with an expired visa and a valid I-94. According to the US Embassy in Paris, the changes were made to reciprocate the terms set for US citizens in France.
USCIS has announced that it will be disposing E-Verify records that are more than 10 years old, which are those dated on or before December 31, 2019, on January 2, 2020. E-Verify employers have until December 31, 2019 to download case information from the Historical Records Report if they want to retain the information. The Historical Records Report contains information about each E-Verify case that will be purged.
E-Verify requires employers to record or print and file the E-Verify case verification number for each corresponding form I-94. Employers may retain the Historic Records Report with the corresponding I-9s.
Please contact a member of our legal team if you have questions concerning E-Verify or need assistance retrieving the Historical Records Report.
The December 2019 visa bulletin made progress in some categories while others remain unchanged compared to Novmember 2019 in terms of dates for filing for employment-based visa applications. EB-1 Worldwide is current. EB-1 China remains at September 01, 2017; EB-1 India remains at March 15, 2017, and EB-1 Philippines is current. EB-2 Worldwide remains current. EB-2 China remains at August 01, 2016 while India remains at July 01, 2009; EB-2 Philippines remains current. EB-3 Worldwide remains current. EB-3 China remains at March 01, 2017. EB-3 India remains at February 01, 2010, and EB-3 Philippines remains current. As a reminder, after each Visa Bulletin is published you should check with USCIS.gov to see which chart they are accepting for that specific month.
Join us on December 18th for a free immigration webinar. HR Immigration Updates Webinar – there’s a lot going on behind the scenes and its important you get an update on what’s happened and what to expect. To get ready for 2020, David Brown will be hosting a webinar on Wednesday December 18th at 11am PST/2pm EST to update clients on what to expect for the H-1B lottery in 2020, discuss current immigration bills that will impact the visa backlog, and cover executive orders/processing changes and anticipated filing fee hikes. If you want a clear and concise update on the changes impacting your employees, this update will contain the most relevant and up-to-date information. After an initial 50 minute presentation David will remain on the video feed to answer any questions from the audience.
** This newsletter/memo is provided for informational and discussion purposes only. It does not act as a substitute for direct legal contact on an individual basis **