Public Charge Rule: Trump’s Proposed Changes Put on Hold by Courts

By Grant W. Godfrey, Immigration Attorney

Public Charge Fact Sheet

On October 11, 2019, judges in three separate cases before the following courts —

— enjoined the Department of Homeland Security (“DHS”) from implementing and enforcing its new final rule changing the interpretation of the public charge ground of inadmissibility under section 212(a)(4) of the Immigration and Nationality Act (the “INA”). The new rule was set to go into effect just four days later, but has been put on hold until there is a final resolution of these cases.

What is the Public Charge Rule?

The concept of a public charge was first introduced into immigration law by the Immigration Act of 1882, which stated that an immigrant who would be “unable to take care of himself or herself without becoming a public charge” would not be permitted to depart their vessel and enter the United States. Since then, the legal language and interpretation of who is considered likely to become a ‘public charge’ has changed several times, most recently in 1999 by the legacy Immigration and Naturalization Service (now the U.S. Citizenship and Immigration Services, which is a part of the DHS). The 1999 guidance defined a public charge as someone who has or is likely to become ‘‘primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or institutionalization for long-term care at government expense.”

Proposed Changes to Determine Public Charge

The new final rule would make several important changes to the public charge determination. For example, it increases the types of assistance programs that the federal government will consider in public charge determinations to include a number of public assistance programs that were previously not taken into consideration in this determination. It also explicitly directs immigration officers to take into account more qualitative factors that were always theoretically available for consideration but were often not considered in practice, including the individual’s age, health, family status, assets, resources, financial status, education, and skills. The new final rule would also change several common forms used in immigration proceedings (e.g. Form I-485, I-129, I-539, I-864, and I-864EZ) to ask direct questions related to this new interpretation.

Separately, on October 11, 2019, the Department of State published an interim final rule changing its interpretation of the public charge determination process, also broadening it and taking into account many of the same factors as DHS. This new rule was also supposed to be effective on October 15, 2019, but after the injunctions the State Department published a notice stating that it is awaiting approval to use a new form before it implements any changes to its rules or policies.

More Information

We will continue to monitor the situation regarding the Public Charge Rule and post updates as appropriate. In the meantime please do not hesitate to contact any of the immigration attorneys at Parker Gallini LLP should you have any questions.

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H-4 EADs: DHS Moves One Step Closer in Its Plan to Rescind H-4 Dependent Spouses from Eligibility for Employment Authorization

By Victoria Morte, Immigration Attorney

The Department of Homeland Security (DHS) has submitted a proposed rule for review by the Office of Management and Budget (OMB) to rescind H-4 dependent spouses from eligibility for an Employment Authorization Document (EAD). The proposed regulation, entitled “Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization” is based on DHS’ Fall 2018 Unified Agenda of Regulatory and Deregulatory Actions and Regulatory Plan.  The removal of this benefit would substantially impact H-1B-H-4 couples and their families, and employers who now employ H-4 visa holders with valid EADs. 

As of December 2017, USCIS had approved 90,946 initial applications for H-4 EADs for dependent spouses when the principle H-1B holder is the beneficiary of an approved Form I-140 Immigrant Petition for Alien Worker or of an approved extension of H-1B status beyond the sixth year based on a filed Form I-140 or Labor Certification (PERM). While the proposed rule is under review, there is no immediate impact to the H-4 EAD application process, and qualifying individuals remain eligible to apply for the benefit. Consequently, any qualifying dependent spouses should consider filing an application as soon as possible before the rule rescinding H-4 EADs is finalized and implemented. Given the timeline of OMB review and the required notice and comment period, the opportunity to apply for an H-4 EAD is likely to be lost in the coming months. 

OMB is permitted up to 90 days to review the proposed rule, which DHS submitted on February 20th. Following OMB’s review of the proposed rule, a notice of proposed rule making will appear in the Federal Register and will be open for public notice and comment for a 30 to 60-day period. The proposed regulation will go into effect only after DHS finalizes the rule following the comment period. Unless DHS establishes good cause for faster implementation, the finalized rule must be published at least 30 days before it goes into effect.

Under current regulations, DHS maintains the authority to revoke employment authorization granted to H-4 dependent spouses prior to the expiration date on the EAD via written notice. DHS has not yet indicated if any transition period or final renewal opportunity will be offered to current H-4 EAD holders following publication of the final rule.

Further, DHS has not addressed its adjudicatory plan for H-4 EAD applications that remain pending when the final rule is published. However, according to USCIS’ current guidance, H-4 EAD validity begins on the date USCIS adjudicates a pending Form I-765 or on the date an applicant acquires qualifying H-4 status. H-4 EAD validity is not backdated to the time qualifying H-4 status is granted. 

As we await publication of DHS’ proposed rule, current H-4 EAD holders and/  their employers should immediately explore with immigration counsel whether H-1B sponsorship is viable or if there are potential alternative options including other available nonimmigrant classifications and immigrant visa processes that might facilitate the continuity of employment.

For more information about the proposed elimination of H-4 EADs, or to ask a specific question, please contact any of the immigration attorneys at Parker Gallini.

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USCIS Has Opened Premium Processing to All H-1B Petitions Filed on or before December 21, 2018

By Grant Godfrey and John Gallini

Effective today, the U.S. Citizenship and Immigration Services (USCIS) is accepting upgrades to premium processing service for all H-1B petitions filed on or before December 21, 2018.

The suspension of premium processing for H-1B filings originated on March 20, 2018 when USCIS announced that it would temporarily suspend premium processing for any Cap-Subject H-1B petition with the expectation that premium processing for those cases would resume by September 10, 2018.

On August 28, 2018 USCIS then announced that it was extending the suspension of premium processing for Cap-Subject H-1B filings and also expanding it to all H-1B petitions, except for those filed by cap-exempt organizations or for H-1B petitions that were for continuation of employment without change, with the expectation that premium processing would be returned by February 19, 2019.  On January 25, 2019, USCIS announced that it was resuming premium processing for Cap-Subject H-1B filings, and that it would make announcements about resuming premium processing for the remaining H-1B filings in the future.

While this announcement will be of some help to employers and H-1B workers, it is disappointing that the USCIS is not resuming premium processing for all H-1B filings as was promised over the summer.  When USCIS extended and expanded the suspension of premium processing, it stated that by doing so it would be able to reduce a significant backlog of long-pending H-1B petitions.  This goal has not been met and processing times for many H-1B petitions have actually lengthened to 12 months or more.  Hopefully USCIS will recognize that its policies are actually counterproductive to its own well-being as an agency and once again extend in the near future the premium processing option to all H-1B petitions, regardless of filing date.

For more information, please contact any of our immigration lawyers at Parker Gallini.

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H-1B Cap Lottery Process: Important Regulatory Changes

By Donald W. Parker, Immigration Attorney

Donald Parker - Immigration AttorneyOn January 31, 2019, the US Department of Homeland Security promulgated a final regulation that makes several important changes in the H-1B lottery process, which we briefly addressed in our recently published alert about the upcoming H-1B cap season.  This article will discuss the changes made by the regulation in more detail.  

By statute, the number of new H-1B visas that can be issued by the USCIS during a fiscal year (beginning on October 1st) is capped at 85,000 (the “H-1B Cap”).  Cap-subject H-1B visas are given out each year in two primary tranches – 20,000 visas reserved for foreign nationals with a U.S.-earned Master’s (or higher) degree (the “U.S. Master’s Degree Tranche”) – and an additional 58,200 visas are reserved for all foreign nationals who otherwise qualify for H-1B classification (the “Regular Tranche”).  The USCIS also reserves 6,800 visas for citizens of Singapore (5,400) and Chile (1,400) for H-1B1 visas. H-1B1 visas have historically been under-utilized and remain available throughout the fiscal year.  Each year for the past several years, many more H-1B visa petitions have been filed under the H-1B Cap than the number of H-1B visas available in both the U.S. Master’s Degree Tranche and the Regular Tranche, and as a result, the USCIS has selected cases that may be processed for an H-1B through a random lottery process.

Under the current H-1B Cap lottery system, employers may submit a completed H-1B visa petition filing package for each foreign national that they are sponsoring to the USCIS beginning in the first week of April of each year.  If more visa petitions are received than the H-1B Cap Tranches allow, then the USCIS conducts two lotteries – the first lottery is for all cases filed under the U.S. Master Degree Tranche for the 20,000 H-1B visas available and the second is for the Regular Tranche for the remaining 58,200 H-1B visas available.  Visa petitions filed for foreign nationals with a U.S. Master’s degree or higher that are not selected in the first lottery are included in the second lottery as well.

The final regulation makes the following changes in this process:

  • The regulation reverses the order of these lotteries.  The first to be held will be the lottery for the Regular Tranche and will include both foreign nationals with a U.S. Master’s degree or higher, and all other foreign nationals are eligible for an H-1B visa.  The second lottery will then be for only those foreign nationals with a U.S. Master’s degree or higher who were not selected in the first lottery.  Restructuring the lottery in this fashion will increase the number of H-1B visas allocated to foreign nationals with a U.S. Master’s degree or higher.  The USCIS estimates that as many as an additional 5,000 H-1B visas will go this group of applicants.  Of course, this will be at the expense of foreign nationals who don’t have a U.S. Master’s degree.
  • The regulation also eliminates the need for filing a complete H-1B visa petition in order to participate in the lottery system each year.  Instead, the USCIS will establish an online registration system to allow companies to register employees for the lottery.  This new registration system, which will not be used in the 2020 H-1B Cap process that kicks off on April 1, 2019, will have the following characteristics:
    • The USCIS will announce the commencement of the registration process each year at least 30 days before the earliest date on which a registration will be accepted.  
    • The period during which registrations can be electronically submitted will be  a minimum of 14 days and will commence at least 14 days before April 1st of each year.  Note that the regulations provide flexibility to the USCIS to provide a longer period of time within which registrations will be accepted.
    • No fee will be charged to submit a registration.
    • USCIS expects to collect the following information in the electronic registration, but cautions that the system they design may request more information to discourage fraud: (1) the employer’s name, address, and EIN, (2) the employer’s authorized representative’s name, job title, telephone, and email, (3) the foreign national’s name, date of birth, country of birth, country of citizenship, gender, and passport number, (4) whether the foreign national has obtained a U.S.-earned Master’s (or higher) degree, and (5) the employer’s attorney information (including, in some fashion, a Form G-28, which will need to be submitted with the registration).  USCIS will not require that employers obtain a certified Labor Condition Application (“LCA”) with the Department of Labor prior to submitting the electronic registration.
    • Once the window for submitting registrations closes (on or before April 1st), the USCIS will conduct the two lotteries, and then notify the employers of the cases that have been accepted in each lottery by email.  That electronic notice will specify the date within which an H-1B visa petition must then be filed with the USCIS, which will be at least 90 days in the future.
    • An employer may submit only one registration for each individual foreign national – if they submit more than one, the USCIS will reject all registrations for that foreign national.

The inversion of the H-1B Cap lotteries will go into effect in the up-coming H-1B Cap process that will begin on April 1, 2019 (the “2020 H-1B Cap”).  However, the USCIS has suspended the implementation of the online registration system until at least the 2021 Cap (commencing on April 1, 2020).  While the proposed regulation had contemplated creating a staggered lottery system where USCIS would only make a limited number of H-1B Cap numbers available in April so that multiple lotteries could be held throughout the year, the final regulation decided to do away with that approach and the plan is to continue with the current policy of making all H-1B Cap numbers for the next fiscal year available for use as of April 1st.  

One significant concern raised in the comments to the regulations when they were proposed, was that by making the registration process simple, the USCIS would make it easy for very large employers (including staffing companies) and unscrupulous employers to submit large numbers of registrations including for cases that may not ultimately be filed. As an example, a staffing or consulting company could submit registrations for thousands of foreign nationals without knowing whether they would in fact have contracts with U.S. employers at the time of registration that could support an H-1B filing.  As a result, the system could see dramatic increases in the number of registrations that are submitted thus reducing the chances of any single case being selected in the lotteries.  These comments suggested approaches to prevent this like requiring a fee to register or requiring at least the certification, prior to registration, of a Labor Condition Application.  The USCIS brushed away these concerns and indicated that there would likely be a representation in the registration form that the employer intends to file an H-1B visa petition for the identified foreign national on terms that are consistent with the information in the registration and that the information in the registration is accurate.  Where the USCIS finds that an employer does not file multiple cases selected in the lottery or other evidence of fraud, it would then have a basis for investigating and possibly taking legal action against the employer.  Time will tell whether these concerns are real and if so what the response of the USCIS will be.

Parker Gallini LLP will keep you up-to-date as we learn more about the registration process and about the 2020 H-1B Cap lottery process. You may contact the author directly for more specific information: Donald Parker.

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H-1B Cap Filing Window Still Scheduled to Open April 1

Changes Help Foreign Workers with Advanced U.S. Degrees

By Grant Godfrey, Immigration Attorney

Grant Godfrey Immigration Attorney Boston photoU.S. Employers continue to struggle to fill highly-skilled positions, particularly in the Science, Technology, Engineering, and Math (STEM) fields where well-educated U.S. workers with the required experience and/ expertise remain in short supply. H-1B “specialty occupation” workers have played an important role in filling these needed jobs and the temporary work visa classification remains the visa of choice that U.S. employers utilize to employ foreign nationals in these positions. This visa classification is available where: (1) the job is complex enough to require at a minimum a Bachelor’s degree in a specific field of study, and (2) the foreign national has the required Bachelor’s degree, or its equivalent, in that field. By filing an H-1B petition, the employer agrees to meet other important requirements, like paying at least a market wage for the position in the area of employment and providing notice of the proposed employment to other workers. Although much maligned by President Trump, the H-1B program will open as usual for the first five (5) business days in April, with some changes that increase the number of H-1B visas available to foreign nationals holding advanced degrees from U.S. colleges and universities.

The H-1B Cap

The H-1B program was established by the Immigration Act of 1990, a law signed by then President George H.W. Bush, and currently caps the total number of new H-1B visas issued during any government fiscal year at 85,000 (H-1B Cap). Note that certain employers, most notably universities and non-profit entities affiliated with universities, are exempt from the H-1B Cap and can hire foreign nationals into H-1B positions without any consideration of the H-1B Cap. Most employers, however, are not exempt from the cap, and if they want to employ a foreign national pursuant to H-1B classification who has not held that classification previously, then they must consider whether or not the worker qualifies for an H-1B Cap-subject petition.

Cap-subject H-1B visas are given out each year in two primary tranches – there are 20,000 visas reserved for foreign nationals with a U.S.-earned Master’s (or higher) degree – i.e. the “U.S. Master’s Degree Tranche” – and an additional 58,200 visas under the “Regular Tranche” for all foreign nationals who qualify for H-1B classification, including those with U.S.-earned advanced degrees. Finally, the USCIS reserves 6,800 visas for citizens of Singapore (5,400) and Chile (1,400) for H-1B1 visas. H-1B1 visas have historically been under-utilized and remain available throughout the fiscal year. Unused numbers reserved for H-1B1s are added back to the next year’s quota.

H-1B petitions can be filed up to six-months in advance of the anticipated start-date. New H-1B Cap numbers become available on October 1st, the start of the government fiscal year. As a result, cap-subject employers can file H-1B Cap petitions as early as April 1st for a start date of October 1st. We are therefore advising all employers who expect to sponsor an employee for a new H-1B visa to file within the first five (5) days of April (i.e. so that the petition is received no earlier than April 1, 2019 and no later than April 5, 2019).

The H-1B Cap Lotteries

Because demand for new H-1B visas has far exceeded the yearly supply allowed by Congress, the U.S. Citizenship and Immigration Services (USCIS) has implemented a filing window during which it must accept all H-1B Cap petitions before conducting the lotteries. Currently that filing window is a minimum the first five (5) business days of April. Once the filing window closes USCIS tallies up the total number of cap-subject H-1B petitions received during that period, and if the number exceeds the quota then it runs random lotteries to determine which petitions will be selected for processing. Last April USCIS received approximately 190,000 cap subject H-1B petitions in the first week of April. We are projecting that this year the cap will again be reached within the first week of April and that USCIS will once again hold its lotteries.

On January 31, 2019, the Department of Homeland Security (DHS) published a final rule that will become effective on April 1, 2019 and will change the way in which the H-1B Cap Lotteries are administered:

  1. Effective this year USCIS will be administering the random lottery for the Regular Tranche first for all petitions filed (including those who have U.S. Master’s degrees) and then the U.S. Master’s Degree Tranche. This is an inversion of the traditional process where the U.S. Master’s Degree Tranche was run first and then anyone not selected in it was rolled into the Regular Tranche. This change will increase the number of foreign nationals with at least a U.S. Master’s degree who are selected in the lotteries.
  2. Effective next year (at the earliest) USCIS will build and implement an electronic registration system where employers provide basic information about themselves and the worker that they are seeking to sponsor instead of filing a full H-1B petition. The lotteries will then be run based on the electronic registrations and those selected will be notified and will have 90 days to prepare and file the cap-subject H-1B petition. USCIS has wisely delayed implementing this rule until at least next year. It plans on opening the electronic registration window and running the lotteries before April 1st so that cap-subject H-1B petitions can begin to be filed on the first day. USCIS will provide at least 30 days’ notice before opening the registration window, and once the registration window opens companies will have at least 14 days to electronically register all proposed cap-subject H-1B employment. Until this system is implemented and announced, the current system of filing cap-subject H-1B filings for the first five business days of April and then running the lotteries as described above will remain in place.

Situations in which Employers Should Consider Filing an H-1B Cap-Subject Petition

  • Employees who are subject to the H-1B Cap are those who have not previously held H-1B status and who have not been counted against the H-1B Cap within the past six years. Within this group typically are:
  • Individuals who hold F-1 student status and are either graduating this spring or summer, or who are in their period of employment authorized Optional Practical Training (OPT) granted as part of their F-1 student status;
    Individuals in J-1 scholar or researcher status who are completing their programs this spring or summer;
  • Individuals who are currently outside of the U.S.; and
  • Individuals who have been employed in H-1B status but only with “exempt” institutions or organizations, such as universities, related or affiliated non-profit entities, nonprofit research organizations, and governmental research organizations.

Note that the H-1B cap does not apply to a foreign national who is currently in the U.S. in H-1B status and has already been counted against the H-1B Cap.

A few important points to note:

  1. USCIS takes the position that the foreign national’s eligibility for H-1B status must be established at the time of filing. Thus, if the foreign national is hoping to apply in the U.S. Master’s Degree Tranche but has not completed all program requirements for the U.S. Master’s degree on or before April 1st, the foreign national is not qualified for consideration under the U.S. Master’s Degree Tranche. This person would have to file for an H-1B in the Regular Tranche based on possession of a foreign or U.S. Bachelor’s degree or its equivalent.
  2. Most commonly, F-1 students have a period of one year of employment authorized OPT. F-1 student employees who graduate in the Spring will commonly have OPT that expires between May and August of the following year. Employees in F-1 status whose OPT will expire before October 1 are automatically granted a “Cap Gap” extension of their OPT if the H-1B visa petition filed on their behalf is selected for processing. To be eligible for a Cap Gap extension, their OPT must also have been valid on the date the H-1B petition was filed. An F-1 student employee whose OPT employment authorization will expire before October 1 must inform their school of their H-1B selection and obtain an endorsement for Cap Gap extension. Only H-1B petitions that are filed with a request for change of status from F-1 to H-1B are eligible under this rule.
  3. F-1 students who have graduated in a STEM designated program field and who will be working with a U.S. employer that is registered with the e-Verify system are eligible for a 24-month extension of their OPT after the initial 12-month period has run. Thus, F-1 students in certain STEM designated degree programs may be able to take advantage of up to 36 months of employment authorization after graduation pursuant to F-1 OPT and will have several opportunities to apply for and secure an H-1B visa.
  4. USCIS routinely suspends premium processing for cap-subject H-1B petitions for several months after the lotteries are run in April. Premium processing is a service offered by USCIS whereby employers can pay an extra $1,410 filing fee for guaranteed review of their petition within 15 calendar days of its receipt. This past year USCIS initially anticipated suspending premium processing for cap-subject H-1B petitions for five months but then in August USCIS extended its suspension of premium processing before reopening premium processing for cap-subject H-1B petitions as of January 28, 2019 (i.e. almost 10 months after the petitions were initially filed). We expect that USCIS will at least suspend premium processing for all H-1B Cap cases this year and that could negatively affect F-1 students who rely on the Cap-Gap extension described above.

The H-1B filing window is just a little over two months away and that filing window is fleeting — this year just for five days. It is vital that employers determine which of their foreign employees or prospective employees to whom they have made offers will require an H-1B this year. The rules (as outlined briefly above) are complex and every case requires its own analysis. It is thus important that you collect the necessary data about possible H-1B candidates and begin a discussion with your immigration legal counsel as early as possible so that appropriate plans can be made to increase the chances of your foreign national employees being able to secure and/ maintain legal status and work authorization.

Please contact any of the member of the legal team at Parker Gallini LLP if you have any questions about the new H-1B visas that are becoming available.

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Temporary Entry Provisions of NAFTA Appear to Emerge Unscathed in the Proposed Text of the USMCA

By Grant Godfrey

grant-godfrey17On October 1, 2018, the Office of the United States Trade Representative published the text of the proposed United States-Mexico-Canada Agreement (“USMCA”), which is meant to replace the North American Free Trade Agreement (“NAFTA”). Since it went into effect in 1994, Chapter 16 of NAFTA, has been used for Business Visitors, Traders and Investors, Intra-Company Transferees and Professionals who are citizens of the U.S., Canada, and Mexico to enter the member countries for temporary business purposes. Importantly, Chapter 16 of NAFTA includes provisions allowing citizens of the members countries to perform after-sale services (including on computer software) in other member countries and for Professionals to enter the member countries using a special status (called “TN Status” in the United States) if they are going to be performing services in a list of approved occupations.

The proposed text of Chapter 16 of the USMCA appears to leave the existing framework mostly untouched. The USMCA will still allow business people to perform after sales services, and will have a special classification for Professionals with an identical list of acceptable occupations as is currently allowed under NAFTA. The Toronto Star has reported that the intention was to leave the TN Professional Worker classification unchanged, so barring any new developments it appears that the three countries intended for there to be no major changes to the current agreements related to temporary business workers.

This should be of great relief to companies and workers who currently rely on Chapter 16 of NAFTA. However, we must caution that the USMCA is still in the process of being negotiated. Additionally, after negotiations end, the legislatures of the three countries must ratify the treaty, so changes may still be introduced or the deal may be scrapped in its entirety and a new one proposed.

In the meantime, please do not hesitate to reach out to our team of immigration attorneys should you have any questions or concerns.

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H-1B Premium Processing Update

USCIS Announces Extension and Expansion of the Suspension of H-1B Premium Processing and an Increase in the Premium Processing Filing Fee

By Grant Godfrey and Donald Parker

grant-godfrey17Donald Parker - Immigration AttorneyOn August 29, 2018, the U.S. Citizenship & Immigration Services (“USCIS”) announced that it was extending and expanding its suspension of premium processing services so that it will affect many more H-1B filings. On March 20, 2018 USCIS suspended premium processing service for all cap-subject H-1B filings until September 10, 2018. This August 29, 2018 announcement extends the moratorium on premium processing for cap-subject H-1B petitions until February 19, 2019.  

Furthermore, the new announcement also suspends premium processing for most other H-1B filings (with two exceptions) beginning on September 11, 2018 until February 19, 2019.  The only two types of H-1B filings that will be eligible to utilize premium processing during this period will be:

  • H-1B petitions filed by cap-exempt employers (e.g. colleges or universities, or nonprofits affiliated with them) with the California Service Center; and
  • H-1B petitions where petitioner is requesting continuation of previously approved employment with the same employer without change, requesting either an extension of stay or consular notification, and filing the petition with the Nebraska Service Center.

This additional suspension will primarily affect H-1B visa petitions filed by employers seeking to transfer H-1B sponsorship for a new employee from their prior H-1B sponsor.  The press release notes that USCIS will continue to accept requests for expedited processing based on merit.  Additionally, premium processing for other Form I-129 and Form I-140 based filings will be unaffected.

While USCIS calls this a “suspension” until February 19, 2019, the announcement clearly reserves the right of the USCIS to impose further suspensions on the use of premium processing after that date.

Finally, on August 31, 2018, USCIS announced that effective October 1, 2018 premium processing filing fees for all petition-types will increase to $1,410 from the current $1,225.  In making this announcement, USCIS noted that premium processing fees had not been adjusted since 2010 and that it will use the increased fee to hire additional staff and improve its information technology systems.

Please contact any of the member of the legal team at Parker Gallini LLP if you have any questions about the new H-1B visas that are becoming available.

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