Seismic Shift in Immigration Field Happened in Less than Two Weeks
In case you missed our Breaking News updates, we witnessed the following in recent weeks:
- On September 24th, the Department of State (DOS) issued its October 2020 Visa Bulletin. This Bulletin significantly advanced the Dates for Filing for EB-3 India (and to a lesser extent EB-3 China), as a result thousands of previously backlogged foreign nationals can file I-140s and AOS cases in the month of October;
- On September 29th, Federal District Judge Jeffrey White enjoined the Department of Homeland Security (DHS) from increasing filing fees and introducing new forms – both new fees and forms were to go into effect three days later on October 2nd;
- On September 30th, President Trump signed the continuing funding resolution which impacts premium processing and USCIS funding – see our update below;
- On October 1st, Federal District Judge Jeffrey White enjoined the Federal Government from applying the June 22nd Presidential Proclamation preventing the entry of certain non-immigrants (H-1/H-2/L-1/J-1) against the named Plaintiffs – we are still awaiting DOS guidance on how they will comply;
- On October 8th, the Federal Register published an Interim Final Rule from the Department of Labor (DOL) that recalculates the prevailing wages that are commonly used in H-1B and PERM related applications – the increases are dramatic and without notice and went into effect immediately for all new LCA filings and all currently pending and new prevailing wage requests; and
- On October 8th, the Federal Register published an Interim Final Rule from DHS that dramatically reinterprets key elements of the H-1B regulations and will make it more costly to hire H-1Bs who work at a third party location (3rd party location petitions will only be valid for a maximum of one-year.)
While we have responded and adjusted to significant change brought to our field the past several years under this current administration, the shifting ground in our practice we witnessed in that short two weeks is truly unprecedented. Each of these changes was major news in our field, collectively they created significant confusion and uncertainty, and we are fielding more emails than we have ever seen. We are also busier this month because of the limited filing window (we found out on September 24th we could file certain I-140 and AOS cases under the new visa bulletin that ends October 30th), and the significant movement in priority dates we suddenly have hundreds of additional applications that must be filed before the cut-off in two weeks! We are doing our best to respond to all of these issues and we will get your case filed on time.
We must at the same time ask for your patience and assistance in working through these changes. Thankfully, we expect that our court system will strike down the most harmful new policy changes, but until that happens, we will do our best to work through any impact on a case by case basis. One question we are getting is “how will X change impact me” or “my H-1B needs to be extended next June, will I have problems” and for those with future issues we ask for your patience. First, while we love to be proactive and plan ahead, we do not think some of the issues we are dealing with now will be issues next year (specifically because we think the courts will strike many harmful provisions). Second, and just as important, we are under a significant time constraint to ensure we timely file urgent cases that impact virtually all of our client employers. So, our immediate priority is filing time sensitive cases and dealing with immediate impacts as a result of these changes. We will of course ultimately answer your questions and ensure we see all of our clients through this disruptive period. To better understand these changes, join our webinar next Wednesday (details below) and know that David, our Managing Partner, will stay on late the answer additional questions, and we will afterwards issue a Q&A to the most common questions we are receiving from these changes.
Thank you in advance for your understanding and working with us to ensure we meet all filing priorities while also getting everyone the information they need to make HR and personal decisions.
Temporary Spending Bill Alters Premium Processing
On September 30, President Trump signed an appropriations bill to fund the federal government until December 11, 2020. The bill includes a provision titled “Emergency Stopgap USCIS Stabilization Act” which authorizes U.S. Citizenship and Immigration Services (USCIS) to increase premium processing fees and expand premium processing to other benefit categories in order to provide additional funding to the agency. Key changes to premium processing include:
- Increasing the premium processing fee for all benefits that are already eligible for premium processing from $1,440 to $2,500 (with the exception of H-2B seasonal workers and R-1 religious workers);
- Expanding Premium Processing for the following types of categories consistent with the following;
- I-140 Petitions on behalf of EB-1 multinational managers and executives and EB-2 national interest waiver cases with a fee celling of $2,500 and a processing time of less than 45 days.
- I-539 change or extension of status application as a dependent of E (treaty trader or investor), H (temporary work), L (intracompany transferee), O (extraordinary ability, P (artist or athlete), or R (religious worker) with a fee celling $1,750 and a processing time of less than 30 days.
- I-539 change of status applications for F (academic students), J (exchange visitor, or M (vocational student) with a fee celling $1,750 and a processing time of less than 30 days.
- I-765 employment authorization applications with a fee celling $1,500 and a processing time of less than 30 days.
- Allowing for biennial adjustment of premium processing fees based on Consumer Price Index without rulemaking; and
- Clarifying that the processing time clock does not begin until “all prerequisites for adjudication are received” USCIS.
Though the massive increase in premium processing fees is completely unexpected and unwelcome, the expansion of premium processing for certain benefits such as employment authorization will minimize the risks of any lapse in work authorization for certain nonimmigrant dependents. At this time, it is unclear when USCIS will formally announce the fee increase to $2,500, but it is expected within the next several weeks. On the other hand, the expansion of premium processing for additional categories will likely take more time as the agency will need to go through the formal rulemaking process.
We will continue to provide updates regarding premium processing as USCIS announces them.
Proposed Rule would Eliminated Duration of Status Policies for F and J Nonimmigrants
On September 25, the Department of Homeland Security (DHS) published new proposed regulation that would change the admission period of F (international students) and J (exchange visitors) nonimmigrants from “duration of status” to an admission for a fixed time period. Individuals who require additional time beyond the fixed period to complete their program or assignment may request an extension of stay or reapply for readmission. Under current policy, foreign students are permitted to remain in the U.S. as long as they continue to be in their program of study and in compliance with the rules of their nonimmigrant status. Among the proposed changes, the rule would:
- Limit the admission of F or J nonimmigrants for a period of admission up to the end date of their programs with a maximum of 4 years. Individuals who were born in or are citizens of countries on the State Sponsor Terrorism List, citizens of countries with a student and exchange visitor total overstay rate of greater than 10% according to the most recent DHS Entry/Exit Overstay report are subject to a 2-year admission;
- Require applicants applying for an extension of stay to submit biometrics;
- Limit the admission period of students who are not enrolled at schools that use E-Verify or unaccredited schools to two years;
- Reduce the 60-days grace period at the conclusion of F status to 30-days;
Limit the number of times a student is able to change programs within the same educational level to no more than twice, and students will not be able to change to a lower educational level more than once; and
- F nonimmigrant automatic cap-gap extension is extended from Oct.1 to April 1 of the fiscal year for which the H-1B status is being requested.
The proposed rule provides a transition for F and J nonimmigrants who are properly maintaining their status and are present in the U.S. when the rule goes into effect. These individuals who were admitted for D/S would be authorized to remain in the U.S. for a period of time up to the program end date noted on their Form I-20 or DS-2019, plus 30 days, not to exceed a period of 4 years. However, if these individuals travel outside of the U.S. during their transition period, they would be subject to the new admission rules.
Despite the significant impact of the proposed changes, the comment period was limited to 30-days. Comments on the proposed rule are due on October 26, 2020 at 11:59 P.M. EDT. Over 90 organizations and higher education institutions have requested that DHS extend the public comment period to 60-days given the broad impact of the 73-page rule. We will continue to provide updates regarding the rule as they arise.
Diversity Visa Registration Now Open
On October 7, the Department of State (DOS) opened the online registration period for the 2022 Diversity Visa (DV) Lottery Program which will run until November 11, 2020 at 12:00 P.M. Eastern Standard Time. On an annual basis, the DV Lottery Program selects up to a maximum of 55,000 “diversity immigrants” to obtain permanent residence in the United States. The DV lottery is an alternative to family or employed-based green cards. The purpose of the program is to encourage immigration from countries with low rates of immigration to the US. For DV-2022, individuals born in the following countries are not eligible to apply because more than 50,000 natives of these countries immigrated to the U.S. in the previous five years: Bangladesh, Brazil, Canada, China (including Hong Kong SAR), Colombia, Dominican Republic, El Salvador, Guatemala, Haiti, Honduras, India, Jamaica, Mexico, Nigeria, Pakistan, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam. More than 11 million applicants and their family members entered the DV lottery last year.
To enter the lottery, an applicant must possess either a high school diploma (or its equivalent) or have qualifying work experience. One entry is permitted per person, and there is no fee to register. The electronic registration must be submitted before the registration period closes on November 10. Thereafter, applicants may begin checking the status of their entries starting May 8, 2021 as the US government does not inform applicants directly. Individuals who are selected must prove financial support, obtain criminal and medical clearances, and be interviewed by consular officers before they are able to complete their immigration process.
Please contact a member of our team if you have questions regarding the DV Lottery process or require assistance submitting an entry.
DHS Lifts Airport Restriction for Certain Travelers into the US
Recently, the Department of Homeland Security (DHS) lifted restrictions that limited planes carrying travelers who are exempt, or have received an exception, to the COIVD-19 public health bans on travel from Brazil, China, Iran, Ireland, the 26 countries in the Schengen Area, and the United Kingdom, to one of 15 designated airports. Previously, the U.S. Government had focused public health resources for conducting enhanced entry screenings at these designated airports. DHS indicated that terminating these restrictions will allow the agency to reprioritize its public health resources more effectively for other containment and mitigation efforts and also stimulate air travel.
DHS will continue its illness reporting system and passenger education process even though the airport restriction has been lifted.
Wow! – What a Month In Business Immigration – Key Takeaways From Recent Changes
New webinar added to our portfolio. Do not miss the opportunity to improve your knowledge around all of the recent changes we have seen in the last two weeks!
As the Coronavirus Pandemic has continued to impact our daily life and local economies, we know that the impact is still being felt and that not all government offices and benefits are readily available. This has clearly lasted longer and had more profound effects than any of us originally imagined. To ensure our clients and friends are better aware of the impact of prior and recent policy announcements (including the June Presidential Proclamation on NIVs) we are going to hold a series of webinars to better educate clients on the current state of immigration policy. To this end, we are holding the following free talk:
Key Takeaways From Recent Changes (October 21st at 11:00 am PST)
Since President Trump took office there has been disruption in our field. Even in relation to the last three years this past month is truly unprecedented. Managing Partner, David Zaritzky Brown, will explain the recent changes and discuss how they impact your immigration programs and strategies. Some is good (recent court decisions, movement in October Visa Bulletin) and some is bad (recent new rules from DOL and DHS); David will talk strategy and highlight the firm’s approach to some of the most difficult issues these changes cause. The ground has shifted significantly in a few short weeks, tune in to find out how best to adjust to the changes.
Once registered, you will receive an email with a link to use to join the video chat on the day of the event. Please note: This link should not be shared with others; it is unique to you. If you ever misplace the invitation link, simply visit the webinar schedule on our website to join the LIVE chat.
If you have contacts or colleagues who may benefit from our talks, you are welcome to invite them to join our VIP invitation list by sharing our webinar schedule where they can subscribe for further information.
Don’t miss these opportunities to increase your knowledge on important immigration issues!
Thank you and we look forward to having you at the event.
The Team at Brown Immigration Law
** 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 **