Immigration Quick Takes — June 2023

Posted on June 23, 2023 by Parker Gallini LLP

Domestic Visa Renewal

In early 2023, the U.S. Department of State announced a new plan that allows for domestic (“stateside”) visa stamp renewal for H and L visa holders. Restoring stateside visa stamp renewals- which were discontinued in 2004- means that visa holders will no longer have to return to their home country to renew their visa stamps. During the COVID-19 pandemic, there were long waits for visa stamp appointments and approvals abroad, with many foreign nationals getting stuck abroad while attempting to renew their visa stamps This change to stateside renewal processing would allow for more flexibility for workers to travel overseas with their visa documents in hand. This stateside visa stamp renewal option will be available to H-1B, H-4, L-1 and L-2 with the possibility of this program expanding to other visa types. Stateside renewals are expected to start at the end of this year, with full implementation by 2024.

July 2023 Visa Bulletin Updates

The Visa Bulletin for July 2023 for employment based immigrant visas remains largely unchanged from the Visa Bulletin for June 2023 with a few exceptions.

We have seen a retrogression in all country EB-2 and EB-3 categories since the May 2023 Visa Bulletin was published. The EB-1, EB-2, and EB-5 Final Action priority dates remain the same between June and July 2023. EB-3 has retrogressed by 4 months to February 1, 2022, for all countries except China and India. Due to continued high demand, EB-3 China has retrogressed to April 1, 2019, and EB-3 India has further retrogressed to January 1, 2009.

USCIS has stated that Adjustment of Status applicants in employment-based categories should use the Final Action Dates chart for both June and July 2023, while applicants in the family-based categories should use the Dates for Filing chart.

Individuals who now have backlogged priority dates may have the opportunity to secure additional H-1B extensions as needed while awaiting visa bulletin advancement. In addition, those with pending Adjustment of Status applications that are now backlogged can continue to renew employment authorization documents (EADs) and Advance Parole travel documents as needed and may have opportunities to port employment. Consult with your Parker Gallini attorney if you have any questions about these options.

Tagged with: domestic visa renewal, visa bulletin
Posted in Immigration Law

U.S. DOL Rolls Out New FLAG-based Version of ETA Form 9089 PERM Application

Posted on June 23, 2023 by Parker Gallini LLP

The U.S. Department of Labor has implemented an updated FLAG-based version of ETA Form 9089. While the implementation brings some streamlined features, there are also lingering questions about how the DOL will manage the processing of legacy PERMs and new cases filed in FLAG.

By Donald W. Parker, Immigration Attorney

Don Parker The U.S. Department of Labor’s Office for Foreign Labor Certification (OFLC) has completed a lengthy process of updating the Form ETA 9089 PERM Application and transitioning it to the Department of Labor’s Foreign Labor Application Gateway (FLAG) system. Beginning June 1, 2023, all PERM Applications must be submitted on the new Form ETA 9089 through the FLAG system.

As background, the PERM Application is a required stage in certain employer-sponsored permanent residency processes. It requires that the employer conduct a test of the labor market to determine that there are no U.S. workers who are interested In being considered for the sponsored position and who meet the requirements of that position. In the PERM Application process, the employer must first obtain a prevailing wage determination from the Department of Labor, then conduct the labor market test and finally submit the PERM Application to the Department of Labor, confirming that the labor market test was done properly and that no qualified U.S. workers applied for the sponsored position.

Employers have used the FLAG system to prepare and submit their prevailing wage requests for several years. However, the PERM Application has been prepared and submitted using a different, legacy system. The new PERM Application, which is now prepared and submitted using the FLAG system, allows the Department of Labor to streamline the application process by automatically incorporating information from the prevailing wage determination related to the sponsored position – job duties, education, experience and skills requirements — into the Form ETA 9089.

In addition to this streamlined feature, the new Form ETA 9089 requires the employer to provide more detailed information in several areas including:

The sponsored foreign national’s qualifications for the sponsored position;
Situations in which the sponsored position involves traveling to an additional worksite or telecommuting ; and
Situations where the sponsored position’s listed requirements exceed Department of Labor minimum standards, requiring that the employer justify the requirements based on business necessity.

The introduction of the new Form ETA 9089 has been rocky. Originally scheduled for release in mid-May, the Department of Labor had to push back the effective date of the new Form to June 1st. The Department of Labor has stated that cases filed under the new system will not be processed until all of the cases filed under the old system have been completed. Since processing times for PERM Applications under the old system are running at an average of 9 to 10 months, it will clearly be a while before we see how the U.S. Department Labor interprets components of the new Form ETA 9089 and adjudicates cases filed using the new form.

We will provide up-dates on processing of PERM Applications under the legacy system and news, as we receive it about the operation of the new PERM Application system.

Tagged with: FORM ETA 9089, PERM
Posted in Immigration Law

USCIS Fraud Investigation Arising Out of the 2024 FY Cap Registration Process

Posted on June 23, 2023 by Parker Gallini LLP

USCIS is investigating potential fraud in the H-1B Cap registration process, as the number of beneficiaries registered by multiple employers more than doubled in the FY 2024 lottery registration.

By Abby Swanson, Immigration Attorney

Given the competitive nature of the H-1B CAP registration process, the problem of multiple registrations being submitted on behalf of the same beneficiary is not a new one. While the H-1B Cap registration rules bar an employer from submitting more than one H-1B Cap registration for an employee, there is no explicit prohibition on having multiple employers submit an H-1B Cap registration for the same employee. In the years since USCIS introduced the H-1B Cap registration process, the number of Eligible Registrations for Beneficiaries with Multiple Eligible Registrations has grown from 28,125 in 2021 to 165,180 last year. The selection results for the recently completed 2024 fiscal year selection process, however, have prompted allegations that fraud is being committed by H-1B employers, as well as a renewed call for USCIS to address a familiar problem: that market demand for H-1B visas severely outweighs the numbers allotted.

Data published on USCIS.gov reports that the number of Eligible Registrations for Beneficiaries with Multiple Eligible Registrations submitted this year is 408,891, a notable increase from the number reported last year. Because, as noted above, the USCIS system prohibits and purports to catch multiple submissions by the same employer for the same beneficiary, this increase in multiple registrations is likely the result of multiple employers submitting registrations for one foreign national. Presumably, if a beneficiary is selected under a registration submitted by a different employer from the one for whom the beneficiary is currently working, that employer would then contract the individual out for a period of time, or employ them briefly and then lay them off, giving them 60 days to transfer their petition to their true employer. USCIS takes the position that this scenario constitutes fraud, as companies must attest that they have a real job for the individual they are submitting a registration for. With the significant rise in these multiple registrations, USCIS has stated that they will be initiating law enforcement referrals for further investigation against employers suspected of fraud, and that they have already denied and revoked petitions for this reason. The website further encourages individuals suspecting their place of employment of having committed fraud to submit tips via email.

The significant growth in multiple registrations reflect an issue that is at the heart of the H-1B visa program: the high number of H-1B registrations far exceeds the number of CAP petitions allotted by the government. 350,103 Eligible Registrations for Beneficiaries with No Other Eligible Registrations were submitted this year, in comparison to the 110,791 registrations selected by USCIS. When the 408,981 Eligible Registrations for Beneficiaries with Multiple Eligible Registrations are added to this number, the selection rate is only 14%. Clearly, the market is showing that it needs more new H-1B visas each year. While the Biden administration has suggested raising the fees associated with registration, as well as with filing of H-1B petitions, this is not likely to deter employers who want to continue to invest in the success of their existing foreign national employees. It also remains to be seen whether USCIS’s efforts to combat fraud will have an impact on next year’s CAP registration numbers.

Tagged with: fraud, h-1b cap
Posted in Immigration Law

Alternatives to H1-B Visas

Posted on June 23, 2023 by Parker Gallini LLP

With the demand for new H-1B visas far exceeding the annual cap of 85,000, it is more important than ever to explore alternative visa options. Read on for more information on other available classifications.

By Nancy Giesel, Law Clerk

Due to the increasingly limited visa availability of the H-1B, exploring alternative visa options has become imperative for individuals seeking to temporarily work in the United States. There are several alternative visa options that provide pathways for skilled workers coming to the US. These options fall into two categories: general visas or treaty-based visas. Of course, none of the alternate options exactly replicates all the features of the H-1B and their availability depends on the details of your individual case, so please consult with an attorney when exploring what alternative visa option may be best for you.

General Visas

These visa options are generally available to all foreign nationals who meet the eligibility criteria of the visa, regardless of their country of citizenship.

F-1 Visa post completion OPT and STEM OPT

Optional Practical Training (OPT) allows for one year of practical training in the field of study for those foreign nationals who have completed their course of study under an F-1 student visa. Post completion OPT is generally valid for one year after graduation. Foreign nationals who while on their F-1 student visa have obtained a STEM degree may be eligible for an additional 24-month extension referred to as STEM OPT. To obtain this status, you must have been granted OPT and currently be in a valid period of post-completion OPT. There are additional requirements for the employer including enrollment in E-verify and approval from the academic institution.

Cap Exempt H-1B Visa

Certain sponsoring employers may be exempt from the H-1B numerical cap and can sponsor foreign nationals for an H-1B at any time of year without being subject to the annual numerical H-1B visa limits. Cap-exempt employers include institutions of higher education, non-profit or government research organizations, and non-profits associated with higher education. It is important to note that while these employers are cap exempt, they still must meet standard H-1B requirements such as labor certification requirements.

J-1 Intern or Trainee Visa

This status is available for foreign nationals who are coming to US to participate in work and study-based exchange visitor programs to obtain on-the-job training with a US employer. There are key differences between the intern and trainee positions, including differences in the length of stay allowed. Interns are generally students or recent graduates, while trainees must have at least one year of experience in the field. The J-1 intern or trainee visa permits the foreign national to train and work under the auspices of the J-1 sponsor with a US employer that has been approved by the sponsor. It allows for derivative spouses to work under J-2 status with valid work authorization.

L-1 Visa

The L-1 visa is ideal for multinational companies who wish to transfer employees from an overseas branch to a U.S. branch of the same organization. It allows managers, executives, and employees with specialized knowledge to transfer internationally to work in the United States for a temporary period. To qualify, the foreign national must work at the foreign subsidiary in a managerial or executive role for one out of the previous three years before becoming eligible for transfer. There are strict requirements that both the foreign subsidiary and the U.S. role must be managerial or executive in nature or require specialized knowledge of the company. Derivative status is possible, and derivatives may be able to work in the U.S.

O-1 Visa

The O-1 visa is designed for individuals with extraordinary abilities in the sciences, arts, education, business, or athletics. Foreign nationals must demonstrate exceptional talent in their respective fields through sustained national or international acclaim. Evidence of this could include published scholarly articles, contributions of major significance to the field or critical employment in a distinguished organization. While the requirements for this visa are rigorous, it is a promising option for highly skilled professionals who have received significant recognition or awards in their industry.

Work Authorization as a Dependent

Derivative spouses of certain nonimmigrant visa holders are eligible for work authorization. Derivative spouses holding E-2S, E-3S, or L-2S visas are authorized to work in the United States incident to status. These visa holders can present an I-94 record or a Form I-797 Approval Notice issued by USCIS to show employment authorization.

Treaty-Based Options

There are a series of treaty based temporary work visas that operate as H-1B alternatives. It is key to note that many of the below visa options require that the foreign national be a citizen of the appropriate treaty country to qualify for this visa.

E-3 Visa

The E-3 visa is a treaty-based visa available only to Australian citizens. Like the H-1B, the E-3 visa requires that the foreign national work in “specialty occupation,” have a US bachelor’s degree or equivalent and have a certified labor condition application. There is a numerical cap on E-3s, but it has never been reached. Spouse and children can get derivative status and work under the E-3D status. While E-3 visa holders can request unlimited renewals, this visa does not usually transition easily to U.S. permanent resident (green card) status.

H-1B1 Visa

The H-1B1 visa is another treaty-based visa available to citizens of Chile and Singapore. Like the E-3 and H1-B, it requires that the foreign national have a “specialty occupation,” a U.S. bachelor’s degree or equivalent and certain labor certification requirements. H-1B1 holders are admitted for a temporary period, usually ranging from 12-18 months. While derivatives may get status, they may not work. With this visa, it also may be difficult to transition to permanent residency.

TN Visa

The TN visa is another treaty-based visa that is available to citizens of Canada and Mexico who are employed in certain professional occupations including engineering, system analytics, and graphic design. It comes from the North American Free Trade Agreement (NAFTA) and allows for skilled professionals to come to the US on a temporary basis. Canadian nationals can apply for TN status at the border, while Mexican nationals must apply at a US consulate in Mexico. Family members can get derivative status from a TN, but they cannot work in the US.

As demonstrated above, these H-1B visa alternatives often have their own limitations, but if you believe one of these categories may be a good fit for your situation, or if you wish to learn more about these alternatives, please consult with a Parker Gallini immigration attorney to explore if there is a viable option for you.

Tagged with: h-1b alternatives
Posted in Immigration Law

Immigration Quick Takes — February 2023

Posted on February 27, 2023 by Parker Gallini LLP

FY2024 H-1B Lottery Update

With 85,000 new H-1B visas becoming available for Fiscal Year 2024, U.S. employers seeking to sponsor foreign national workers in “specialty occupation” positions across all industries will be able to begin registering for the annual H-1B lottery on March 1.

Because the H-1B category is not restricted by country of citizenship or field of work – and because the H-1B is the only dual-intent nonimmigrant visa category that allows indefinite extensions for foreign nationals subject to immigrant visa backlogs – the demand for H-1B visas significantly exceeds supply each year. As a result, the U.S. Citizenship & Immigration Service (USCIS) allocates new H-1B visas using a computer-based lottery system, selecting H-1B Cap Registrations submitted through USCIS’ online portal, myUSCIS. New cap-subject H-1B visas are allocated as follows:

Regular Cap: Regular Cap H-1Bs are available to foreign nationals from any country of citizenship who qualify for the H-1B classification by having a minimum of a U.S. or foreign Bachelor’s degree or a combination of education and experience that is equivalent to a U.S. Bachelor’s degree.

Master’s Cap: Master’s Cap H-1Bs are available to foreign nationals from any country of citizenship who have earned a Master’s (or higher) degree in the U.S. Foreign nationals eligible for the Master’s Cap are also eligible for the Regular Cap and may be selected in either lottery, increasing their odds of selection overall.

USCIS runs the lottery process for the Master’s Cap and Regular Cap in two steps. First, USCIS selects enough H-1B registrations to satisfy the Regular Cap from a pool that includes both Regular and Master’s Cap H-1B registrations. Then, USCIS selects enough H-1B registrations to satisfy the Master’s Cap from the remaining Master’s Cap H-1B registrations. In past years, USCIS has run subsequent lotteries as needed to satisfy both caps. In FY 2023, USCIS only ran one lottery.

In 2023, the USCIS will accept Fiscal Year 2024 H-1B Cap Registrations between March 1st and noon on March 17th. At the end of March, USCIS will conduct the H-1B lottery and selected registrations will be identified in employer and attorney myUSCIS accounts. Once notified of selection, the sponsoring employer will have 90 days, from April 1st to June 30th, to prepare and submit an H-1B visa petition to USCIS. If the H-1B petition is approved, it will become effective on October 1, 2022.

F-1 foreign students who have graduated and are employed pursuant to OPT employment authorization or who will complete a degree program during the H-1B filing window
J-1 foreign scholars or researchers
Foreign nationals in other nonimmigrant statuses that present intent or timing challenges for green card sponsorship (TN, H-1B1, L-1 from countries subject to immigrant visa backlogs, and others
Foreign nationals in derivative H-4 or L-2 status with employment authorization which is tied to the continuing status of their H-1B/L-1 spouse
Foreign nationals who are currently living outside of the U.S.

An employer may submit only one registration for each foreign national worker – if an employer submits more than one registration for the same worker, the USCIS will reject all registrations for that worker as duplicates.
Now is the time to review your existing foreign national employees to see if any would be a good candidate for the H-1B visa and if your company and the employee would benefit from their having this status. Take a look at this year’s overview of the H-1B lottery and contact your Parker Gallini immigration attorney to discuss any questions you have about the H-1B program.

USCIS Processing Dependents’ H-4/L-2 and EAD Applications Concurrently with Form I-129

Reaching a settlement with the plaintiffs in the Edakunni v. Mayorkas lawsuit, the Department of Homeland Security (DHS) is implementing structural changes to USCIS procedures to allow for concurrent processing of Form I-539, Application to Extend/Change Nonimmigrant Status and Form I-765, Application for Employment Authorization for dependents in H-4 and L-2 status when these applications are filed together with Form I-129, Petition for a Nonimmigrant Worker. Effective immediately, the USCIS will process and approve H-4 and L-2 extension and change of status applications and Employment Authorization Document (EAD) applications filed together with the principal’s H-1B or L-1 visa petition. Concurrent processing applies whether the principal’s Form I-129 is filed with standard or premium processing. This procedural change will benefit dependent spouses by reducing the lengthy processing times for Form I-539 and Form I-765 Applications, decreasing the chances that they will lose documentation of status or work authorization due to long processing delays

Flexibility Extended for Deadlines for Responses to Requests for Evidence and Other Agency Requests

U.S. Citizenship and Immigration Services (“USCIS”) has extended flexibility to respond to Agency requests received through March 23, 2023. Initially adopted in March of 2019 in response to the COVID-19 pandemic, this rule extends by 60 calendar days the due date for responses to various Agency requests. The rule applies to the following types of USCIS requests: Requests for Evidence; Continuations to Request Evidence (N-14); Notices of Intent to Deny; Notices of Intent to Revoke; Notices of Intent to Rescind; Notices of Intent to Terminate Regional Centers; Notices of Intent to Withdraw Temporary Protected Status; and Motions to Reopen an N-400 Pursuant to 8 CFR 335.5, Receipt of Derogatory Information After Grant.

In addition, USCIS will consider a Form I-290B, Notice of Appeal or Motion, or Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings (Under Section 336 of the INA) to be timely filed if received within 90 calendar days after the issuance of a decision or denial of a case dated between November 1, 2021, and March 23, 2023.
USCIS has indicated that this will be the final extension of COVID-19 related flexibilities and that requests and notices dated after March 23, 2023 will be subject to the time limitations enumerated in the request or notice.

For more information about this extension of COVID-19 related flexibility in responding to Agency requests, contact your Parker Gallini immigration attorney or see this USCIS notice.

New DHS Parole Program for Nationals of Cuba, Haiti, Nicaragua, and Venezuela (the “CHNV Parole Program”)

President Biden announced a new program on January 5, 2023 that expands eligibility for temporary admission to the U.S. to nationals of Cuba, Haiti, Nicaragua, and Venezuela and their immediate family members. The program, also known as the “CHNV Parole Program” requires beneficiaries to have a U.S.-based sponsor, apply and be approved in advance of arriving in the U.S., and travel to the U.S. by flight rather than via a land border. Applicants must also “undergo and clear robust security vetting” and “warrant a favorable exercise of discretion.” Qualified beneficiaries of the program will be issued advanced travel authorization and may be admitted to the U.S. for a temporary period of up to two years. Travel authorization is limited to 30,000 individuals each month across all countries included in the program.

To initiate the application process, interested individuals must have their U.S.-based supporter fill out and submit to U.S. Citizenship and Immigration Services (“USCIS”) a Form I-134A, Online Request to be a Supporter and Declaration of Financial Support, for each beneficiary they are committing to support, including minor children. In addition to completing the form, would-be sponsors must demonstrate sufficient proof of income to support beneficiaries for the two-year period that they would be paroled into the U.S. Qualified sponsors must reside in the U.S. and can include U.S. citizens and permanent residents, asylees and refuges, and individuals with temporary statuses, including TPS or deferred action. Would-be sponsors do not have to be related to the beneficiaries they seek to sponsor.

USCIS and U.S. Customs and Border Protection (“CBP”) will review the supporter information provided in the Form I-134A to ensure that sponsors are able to financially support the beneficiaries they are agreeing to support. There is no fee to submit this form or to apply for the parole program. If USCIS successfully processes the Form I-134A, USCIS will reach out the beneficiary with instructions on next steps for applying and passing security and public health standards. If the beneficiary is approved, they will be issued a travel document valid for 90 days. Approved beneficiaries must then secure air travel to a U.S. city within that time frame. Upon arrival in the U.S., beneficiaries of the new program are eligible to apply for work authorization by submitting Form I-765, Application for Employment Authorization to the U.S. Citizenship and Immigration Service (USCIS).

You can find additional information on the processes and country specific eligibility requirements at https://www.uscis.gov/CHNV and https://www.uscis.gov/humanitarian/frequently-asked-questions-about-the-processes-for-cubans-haitians-nicaraguans-and-venezuelans.

If you have specific questions about the new parole program or being a U.S.-based supporter for someone, reach out to your Parker Gallini immigration attorney for more information.

Tagged with: immigration news
Posted in Immigration Law

USCIS Proposed Filing Fee Increases

Posted on February 27, 2023 by Parker Gallini LLP

By Shelley Starzyk, Immigration Attorney

Shelley Starzyk USCIS has proposed a new filing fee structure that may drastically increase costs for certain types of immigration filings, including some employment-based visa categories. USCIS is collecting public feedback on the proposed until mid-March, and finalized new fees are expected to be announced in the coming months. Read on to learn the details of USCIS’ proposed fee structure and the changes you may see in commonly used visa categories.

USCIS Proposed Fee Increases

On January 3, 2023, the U.S. Citizenship and Immigration Service (USCIS) proposed an increase in filing fees through a published Notice of Proposed Rulemaking. USCIS relies on collected filing fees to fund its operations, as congressional budget appropriations only account for approximately 2 to 5 percent of USCIS’ annual operating budget. This will be the first comprehensive USCIS fee increase since December 2016, with these fees intended to fund 96% of USCIS’ current operational costs. USCIS asserts that the fee increases are necessary to meet customer service obligations and provide timely adjudications, as well as all support other non-adjudicatory functions. USCIS notes that without these fee increases, they would be unable to maintain case processing times and their current backlog, which has already reached historic levels, would likely increase substantially.

USCIS’ proposed filing fee rule contains extensive changes to both filing fee amounts and the structuring of some immigration related fees. The significant changes contained in this proposed fee rule are as follows:

Setting new filing fees reflecting increases for many immigration visas and categories.
Adding new fee exemptions for humanitarian programs and preserving fee waiver requirements.
Removing fee exemptions based on the age of the applicant.
Eliminating returned check fees.
Incorporating the biometrics fee into the main benefit’s filing fee.
Lowering filing fees for certain case types when filed online.
Establishing separate fees for the I-129 Petition for Nonimmigrant Worker based on the visa classification.
Revising the 15- day Premium Processing timeframe from calendar days to only counting business days.
Requiring separate fees for the I-485 application, Form I-765 and Form I-131.

The proposed rule will drastically increase costs for certain types of employment-based immigration filings, with more modest increases for other types of filings. USCIS, in an effort to promote their online filing system has also proposed slightly lower fees for online submission of certain immigration petitions and applications. Because of the extensive list of fees that will increase, we are providing some of the highlights below, with a link to the full published proposed rule available here.

Employment Based Visa Proposed Fee Changes and Increases

Significant fee changes proposed for employment-based visas, include the following.

1. Form I-129: Fee Increases and Change in Fee Structuring

For employment based nonimmigrant visas filed on Form I-129, USCIS is increasing fees and restructuring its fee methodology. The I-129 petition form is a multi-use form submitted with many different nonimmigrant visa petition requests. This form is currently designed with one flat filing fee of $460, regardless of the type of visa being requested, with additional fees added to certain H and L petitions. The new proposed filing fee structure upends this, indicating different Form I-129 filing fees for different categories, while still upholding the additional required fees, such as fraud, ACWIA, and fees or other mandated visa-specific fees in place now. Some of the commonly seen Form I-129 nonimmigrant visa types, and the corresponding proposed USCIS filing fee increases, are outlined below:

H-1B visa petitions have a proposed filing fee increase to $780.
TN, E, P and Q visa petitions have a proposed fee increase to $1,015.
L-1 visa petitions have a proposed fee increase to $1,385.
O-1 visas have a proposed fee increase to $1,055.

2. H-1B CAP Registration Fee Increase

USCIS is proposing a significant increase for the H-1B visa CAP registration cost, raising the current $10 fee to $215 for the online H-1B CAP lottery registration process. This fee, if implemented, would not take effect until after the March 2023 H-1B CAP registration window for FY 2024 is complete.

3. Form I-539 Change or Extension of Status Applications

Under the proposed fee structure, any change or extension of status petitions filed on Form I-539 will also see a proposed increase from $370 to $620 if filed on paper, with a slightly lower fee of $525 if filed online. These fees are typically applicable for nonimmigrant employment visa dependents, who request a change or extension of status while in the United States.

4. New Asylum Program Fee – Limited to Employment Based Visa Petitions

In addition to these increased fees, USCIS is also proposing an additional “Asylum Program Fee” of $600 to be required with all nonimmigrant and immigrant employment-based petitions. This $600 fee would be required of any employer-filed Form I-129 or Form I-140 in addition to that form’s assigned filing fee, and any other government mandated fees. This fee is significant to the cost of maintaining an employee’s nonimmigrant visa, as each extension, renewal or amendment filed to USCIS on Form I-129 would require the payment of this $600 fee.

USCIS is justifying this $600 fee cost, stating “DHS has determined that the Asylum Program Fee is an effective way to shift some costs to requests that are generally submitted by petitioners who have more ability to pay, as opposed to shifting those costs to all other fee payers.” In public commentary on the proposed rule, there is significant discussion over whether allotting these fees only to employment-based visa categories is the appropriate way to distribute such costs, instead of spreading the costs as an increase across all USCIS filing fees. Should this Asylum Program fee method of funding the asylum program successfully pass the public comment period, we hope that such a fee structure would require further USCIS accountability in standardizing and reporting asylum adjudication periods and program results to these involuntary new stakeholders.

Changes to Green Card/Adjustment Application Costs

USCIS is proposing a 35%+ fee increase to green card applications (Form I-485) with a proposed flat fee of $1,540 per application, moving away from the current fees of $1225 for applicants over age 14 and $750 for applicants under age 14 who are filing concurrently with a parent. USCIS is also proposing to restructure this fee by separating out the I-485 filing fee and the fees for the associated concurrent filings of Form I-131 (Advance Parole) and Form I-765 (Employment Authorization Document). Under the current fee structure, the filing fees for an adjustment of status-based Form I-131 and Form I-765 are incorporated into the I-485 filing fee. The current fee structure makes a long pending green card application more financially burdensome on USCIS than on the applicant. USCIS’ new proposed fee structure places the financial burden of USCIS’ delayed green card adjudications squarely on applicants, charging a separate filing fee of $630 per Form I-131 application, and $650 per Form I-765 application for online or paper filing. This brings the total initial filing cost of a green card application with these standard accompanying applications to $2,820 per applicant, a total overall increase of 130% of the current filing fees. Delays in I-485 adjudication may require applicants to repay the Form I-131 and Form I-765 filing fees more than once during the pendency of their green card case to maintain travel and work authorization.

Family Based Immigration Fees

USCIS has proposed an increase to family-based immigration fees as well. Family based immigrant visa petitions (Form I-130) have a significant proposed fee increase. USCIS has proposed a fee increase for the paper filed Form I-130 from $535 to $820, while the online version of the filing will cost $710, an increase of 33 to 35%. Fiancé petitions will see a 35% increase to the current filing fee, with the new proposed fee at $720. Petitions to remove conditions on residence for two-year conditional green cards (Form I-751) will also see a substantial increase from a current fee of $680 (with biometrics) to a new fee of $1,195, a 76% increase.

Naturalization Fees

USCIS kept its proposed fee increases modest with respect to naturalization. USCIS is proposing a 19% increase in naturalization application fees, with the filing fee for naturalization now set at $760. Because the biometrics fee is now included as part of the filing fee, this is an effective increase of $35 from the prior combined biometrics fee and naturalization application filing fee cost of $725. USCIS has also proposed changes in some additional naturalization filing fees for replacing documents and preserving residence with the highest fee increase being approximately 20%.

Humanitarian Fees

The majority of humanitarian immigration related applications and petitions have seen only minor proposed increases, with some fees actually decreasing.

Conclusion

USCIS’ new proposed fee rule provides some drastic changes to fees and the way that USCIS has structured application and petition fees historically. USCIS justifies these significant fee increases as a result of the expansion in USCIS’ overall operating expenses. USCIS states that it must have additional income to meet current demands and reduce growing processing time backlogs. As this proposed fee rule is still in the comment period until March 13, 2023, it remains to be seen what the final rule and fee increases will look like. Once a new rule is published Parker Gallini will provide further guidance on what new fee requirements will look like.

Tagged with: filing fees, USCUA filing fee structure
Posted in Immigration Law

Immigration Quick Takes — January 2023

Posted on January 23, 2023 by Parker Gallini LLP

Immigration Quick Takes

USCIS Expands Premium Processing to Multinational Manager and NIW Categories

For years, immigrant visa petitions in the EB-1C Multinational Executive/Manager and EB-2 National Interest Waiver (NIW) categories have been subject to long processing times, ranging from 1 year to more than 2 years for a USCIS approval. Beginning in 2022, USCIS began to phase in premium processing service for these categories. This month, USCIS announced that effective January 30, 2023, premium processing is available for all new and pending I-140 petitions for EB-1C multinational executive and manager petitions and EB-2 NIW petitions. For these categories, requesting premium processing will result in USCIS adjudication within 45 calendar days.

In the same notice, USCIS also confirmed that further expansions of premium processing to include pending Optional Practical Training (OPT) and STEM OPT Form I-765 applications will be announced in February 2023. USCIS also confirmed premium processing service will expand to initial OPT and STEM OPT Form I-765 applications in April 2023.

Update on New Final Public Charge Rule

The U.S. Department of Homeland Security (“DHS”) announced a new final Public Charge rule on September 8, 2022 that went into effect on December 23, 2022. Section 212(a)(4) of the Immigration and Nationality Act (INA) renders a noncitizen inadmissible if they are “likely at any time to become a public charge,” meaning that they are likely to become dependent on government assistance. Noncitizens found likely to become a public charge can be denied admission to the U.S. or lawful permanent residence in the U.S. Although some categories of immigrants are exempt from this test, most applicants for lawful permanent residence are subject to it.

The new rule formalizes in large part the 1999 “field guidance” that DHS has used to administer the public charge test for much of the past two decades. It replaces the 2019 Public Charge rule implemented by the Trump administration, which expanded the types of relief considered in making a public charge determination to include many non-cash government benefits historically excluded, such as Medicaid or nutrition assistance. The Biden administration stopped following the Trump-era rule on March 9, 2021 and returned to the 1999 guidance. Under the new rule, only those found likely to be primarily dependent on cash aid for income maintenance or long-term care at government expense can be denied admission as permanent residents on public charge grounds.

Applications involving the public charge test that are postmarked or electronically submitted on or after December 23, 2022 are subject to the new rule. USCIS has published a new Form I-485 Application to Adjust Status or Register Permanent Residence, dated December 23, 2022, which adds specific questions related to the public charge grounds. Adjustment of Status applications filed on or after December 23, 2022 must use the newest edition of Form I-485.

The new rule marks a return to longstanding policy that it is safe for immigrants and their families to use health, nutrition, and housing programs for which they qualify, including Medicaid and COVID care, housing, food programs, and many other vital services. Secretary of Homeland Security Alejandro N. Mayorkas said of the new rule, “This action ensures fair and humane treatment of legal immigrants and their U.S. citizen family members. Consistent with America’s bedrock values, we will not penalize individuals for choosing to access the health benefits and other supplemental government services available to them.”

You can read more information about the new rule in the DHS press release and at the new USCIS Public Charge Resources page. Contact Parker Gallini for questions about the new Form I-485 or other topics related to the public charge rule.

January and February 2023 Visa Bulletin Updates

The Visa Bulletin for January 2023, taking us through the first third of Fiscal Year 2023, largely shows no change since the December 2022 Visa Bulletin with a few important exceptions.

The December 2022 Visa Bulletin reflected retrogressions for the EB-2 and EB-3 India visa categories, and retrogressions for the EB-2 All Countries visa categories due to high visa demand. In January of 2023, all of the backlog dates under both Final Action Dates and Dates for Filing remain the same with two exceptions. As was projected in the December Visa Bulletin, the EB-1 category for both China and India has retrogressed in both the Final Action Dates (June 1, 2022) and the Dates for Filing (February 1, 2022). This is a significant change as the EB-1 category for China and India has been Current on both charts for almost 2 years. The February 2023 Visa Bulletin is unchanged from January.

USCIS has announced that applicants for Adjustment of Status in the family and employment-based categories must use the Dates for Filing in January and February 2023.

Tagged with: final public charge rule, premium processing, public charge rule, visa bulletin
Posted in Immigration Law

Developing an Immigration Sponsorship Policy — Updated Considerations for Current Conditions

Posted on January 23, 2023 by Parker Gallini LLP

Immigration answers One of the most popular articles on our website has just been updated by Immigration Attorneys John Gallini and Victoria Morte. In Managing Immigration Sponsorship: A Flexible Policy Is the Wisest Strategy, John and Vicki lay out key considerations in developing an effective and efficient immigration sponsorship policy, and stress the importance of flexibility.

Hiring and employing a foreign national, even temporarily, requires a commitment of your company’s administrative time and financial resources to successfully navigate the complex immigration system, including planning for near-term temporary work authorization and long-term strategy for green card sponsorship. Further, immigration sponsorship can be a powerful incentive and retention tool that may help to draw and retain talent.

Accordingly, efficient and cost-effective management of an immigration sponsorship requires a flexible company policy that accounts for shifts in the legal landscape, fluctuating processing times, economic volatility, and foreign national employee needs and hopes.

The article lays out the questions to ask when designing a policy such as:

Who will pay for immigration sponsorship fees and expenses?
When should Green Card sponsorship be offered?

Additionally, the article suggests key components to integrate into a flexible policy, with practical examples for implementation. Read the article here, and contact a Parker Gallini immigration attorney for assistance in developing your policy.

Tagged with: immigration policy, immigration sponsorship, immigration sponsorship policy
Posted in Immigration Law

How to Handle Layoffs Involving Nonimmigrant Visa Employees

Posted on January 23, 2023 by Parker Gallini LLP

Nonimmigrant visa layoffs Employers and nonimmigrant visa employees working at a company facing layoffs must be aware of applicable rules and available visa options in the event that employment ends.

Immigration Attorney Shelley Starzyk provides a quick rundown of what to do in the face of a layoff of a nonimmigrant visa employee. Options may include case-specific strategies involving:

60-day grace period
Portability to a new employer
Changing status
Departing USA

Read the article, Nonimmigrant Visa Employee Options Available in the Event of a Layoff, on the Parker Gallini website to learn more about the impact and obligations for employers and employees following layoffs.

Tagged with: nonimmigrant visa, nonimmigrant visa layoffs
Posted in Immigration Law

H-1B Visa Lottery: What You Should Know

Posted on January 23, 2023 by Parker Gallini LLP

Each year, USCIS runs a lottery to allocate 85,000 new H-1B visas to U.S. employers seeking to sponsor foreign national workers in “specialty occupation” positions across all industries.

Attorney Donald Parker has written a new article on our website that explains some basics and tips and what to expect in the coming H-1B visa lottery cap season. Learn more about how the lottery works, when you can submit petitions to USCIS, who is subject to the H-1B cap, and things to avoid in the process.

Now is the time to review your existing foreign national employees to see if any would be a good candidate for the H-1B visa and if your company and the employee would benefit from their having this status.

Read the article, The Annual H-1B Lottery Is Coming in March of 2023. Here’s What you Need to Know, and contact one of our immigration lawyers for assistance.

Tagged with: h-1b visa, h-1b visa lottery, lottery cap seacon
Posted in Immigration Law