Premium Processing Fees to Increase on Oct. 19, 2020

Form I-907, Request for Premium Processing will increase from $1,440 to $2,500 on October 19, 2020. Any Form I-907 postmarked on or after October 19, 2020 must include the new fee amount. See related USCIS link at https://www.uscis.gov/news/premium-processing-fee-increase-effective-oct-19-2020

Update on Domestic and Gang Violence as Basis for Asylum. Matter of A-R-C-G-, Matter of A-B- and Grace v. Whitaker

On June 11, 2018, Attorney General Jeff Sessions issued his decision in Matter of A-B-, a case that he certified to himself, overruling the ground-breaking, precedential decision of the Board of Immigration Appeals in Matter of A-R-C-G-, a case which took fifteen years to litigate, that was critical to women from Central America seeking protection from domestic violence.  The Attorney General in Matter of A-B-, stated that adjudicators should “generally” deny both domestic violence and gang violence related claims. This move was viewed as an attempt to shut down the claims of most Central American asylum seekers.  On December 19, 2018, in Grace v. Whitaker, Judge Emmet G. Sullivan of the U.S. District Court in Washington D.C., held that such generalized polices are against our immigration laws.  Judge Sullivan stated that “there is no legal basis for an effective categorical ban” on such claims.  Although Judge Emmitt’s decision does not overrule Matter of A-B- per se, it declares unlawful new restrictions imposed by the Trump administration on immigrants seeking asylum on the basis of domestic or gang violence as a result of Session’s decision in Matter of A-B-.

Read more about latest on domestic and gang violence asylum claims at:  https://cgrs.uchastings.edu/news/court-rules-trump-policies-denying-asylum-protections-people-fleeing-domestic-and-gang-violence

What is BAHA and How Does it Affect Me as an Immigrant?

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On April 18, 2017, President Trump signed the Buy American Hire American Executive Order (BAHA). BAHA is aimed at protecting the interests of American workers by seeking to create higher wages and employment rates and by generally protecting their economic interests through vigorous constriction of U.S. immigration at all levels.

Under BAHA, all interested agencies are directed to implement the President’s directive through an aggressive combination of rulemaking, policy memoranda and operational changes. Interested agencies include, but are not limited to, Citizenship and Immigration Services, Department of State, Department of Justice, and Department of Labor.

Since BAHA was announced, USCIS has taken up the mantle with the following impactful BAHA initiatives:

  • Continuous heavy rollout of its E-Verify for employers messaging and free webinar series to educate employers on how to reduce hiring of illegal workers through the use of E-Verify.
  • Stepped-up worksite enforcement efforts with a combination of increased worksite raids and higher penalties being demanded when violations are found.
  • Establishment of Fraud and Abuse Prevention Hotlines and Emails for the H-1B and H-2B Visa Programs with a generous advertising budget to inform the public.
  • Expanded information sharing with other agencies by entering into several Memorandums of Understanding with the Departments of State, Labor and Justice.
  • Enhancing the current site visit program to include L-1B Visa programs in addition to H-1B and H-2B.
  • Increased transparency with regard to employers who hire foreign nationals and their employees through the publication of extensive H-1B data set information, including information such as gender, country of birth, types of specialty occupations being requested, approval rates, including for change of status, extensions and characteristics of beneficiaries who changed status from F-1 to H-1B. H-2B and EAD data set reports were also added to USCIS’ publication list.
  • Issuance of several policy memoranda reversing long-standing previously existing policy and/or adding new, more restrictive policy interpretations where none existed previously, including:

Contracts and Itineraries Requirements for H-1B Petitions Involving Third Party Worksites https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2018/2018-02-22-PM-602-0157-Contracts-and-Itineraries-Requirements-for-H-1B.pdf

L-1 Qualifying Relationships and Proxy Votes https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2017/2017-12-29-PM-602-0155-L-1-Qualifying-Relationships-and-Proxy-Votes.pdf

TN Nonimmigrant Economists Defined by Qualifying Business Activity https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2017/2017-1120-PM-602-0153_-TN-Economists.pdf

Recission of Guidance regarding Deference to Prior Determinations of Eligibility in Adjudication of Petitions for Extension of Nonimmigrant Status https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2017/2017-10-23Rescission-of-Deference-PM6020151.pdf

Definition of Affiliate or Subsidiary for purposes of Determining the H-1B ACWIA Fee https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2017/2017-8-9-PM-602-0147-H-1BAffiliateSubsidiary.pdf

The changes above refer only to USCIS’ participation in the BAHA initiative. Many more changes have been undertaken by other agencies which seek to curtail U.S. immigration and it is beyond the scope of this post to mention all.

The take away is that immigrants to the U.S. from all walks should be aware of BAHA and its far reaching implications because it has the clear potential to make the U.S. immigration process much more difficult for everyone, from the most highly skilled-workers, to global investors, to the undocumented.

USCIS Proposes Pre-Registration Requirement for Employers Filing H-1B Cap-Subject Petitions

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On December 3, 2018, the U.S. Citizenship and Immigrations Services, Department of Homeland Security, issued a proposed rule requiring employers planning to file H-1B cap-subject petitions for the fiscal year 2020 filing season, which begins on April 1, 2019, to pre-register on a short form first. According to the proposed rule, the pre-registration period could occur before the April 1 opening day of H-1B cap filing season. This short form, to include only basic information about the employer, the job opportunity and the foreign national, would then be run through the H-1B cap lottery system for standard and master’s cap cases until enough short forms are selected to meet the total 85,000 H-1B annual quota.

Under this proposed rule, there is no fee required for submitting the pre-registration short form. Full H-1B petitions, supporting documents and filing fees could only be submitted by employers after their short form is selected through the lottery process. The window for submission of full H-1B petitions eligible to be filed based on selection in the pre-registration lottery process will be very short, perhaps fourteen days under the proposed rule.

The proposed rule also includes the possibility of a waiting list being established so additional cases could be filed if the quota is not reached due to case rejections, withdrawals or if an employer decides not to file a petition that was selected in the lottery. Employers should be aware that the proposed rule includes changes to the lottery selection process aimed at increasing the overall number of foreign nationals with U.S. master’s degrees who would potentially be selected.

This change is intended to advance the Trump administration’s “Buy American, Hire American” policy and general policy of stricter enforcement of the H-1B rules steering the H-1B lottery process toward foreign nationals who are more highly paid and who hold advanced degrees from U.S. universities. It is still unknown whether the proposed rule will be finalized and in operation for start of the 2019 H-1B cap-subject case filing season which begins on April 1, 2019. Therefore, employers are advised to plan ahead and start preparing cases now under current rules.

To learn more about the H-1B Visa category see: https://www.uscis.gov/working-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-fiscal-year-fy-2019-cap-season

To read the H-1B pre-registration proposed rule go to: https://www.federalregister.gov/documents/2018/12/03/2018-26106/registration-requirement-for-petitioners-seeking-to-file-h-1b-petitions-on-behalf-of-cap-subject

 

First-Round FY 2019 H-2B Cap Reached with Unprecedented Number of Second-Round Filings

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On December 12, 2019, USCIS announced that it had received enough H-2B temporary nonagricultural worker petitions to fill the congressionally mandated cap of 33,000 maximum visas for the first half of the federal government’s 2019 fiscal year. According to USCIS, the final receipt date for new cap-subject H-2B non-agricultural worker petitions was December 6, 2018. All cap-subject H-2B petitions received after that date will be rejected by USCIS and returned to petitioners. Since, by December 6th, it was determined that the number of petitions received far surpassed the total number of H-2B visas available for the period, a computer-generated electronic lottery process was undertaken on December 11, 2018 for all petitions received on December 6th, the cut-off date. This particular cap applies only to all H-2B petitions with start dates of employment prior to April 1, 2019.

USCIS continues to accept H-2B petitions that are exempt from the congressionally mandated cap, such as petitions for extensions of stay or change of employers for current H-2B workers, certain fish roe processors and technicians, and H-2B workers performing services in the Commonwealth of Northern Mariana Islands and/or Guam.

Employers may still petition for H-2B temporary nonagricultural workers with start dates of employment for the second half of the fiscal year, i.e., between April 1, 2019 and September 30, 2019. However, ability to file second-round H-2B’s is in a state of chaos at the moment. On January 1, 2019, the electronic filing system administered by the Department of Labor crashed due an unprecedented usage when 97,800 H-2B applications were submitted in the first 5 minutes of the second-round filing season which opened on 12:01 EST on January 1st.

See USCIS announcement at: https://www.uscis.gov/news/news-releases/uscis-reaches-h-2b-cap-first-half-fy-2019

Read about havoc on the Icert Electronic submission website at: https://www.aila.org/infonet/dol-receives-97800-h-2b-applications-within-first?utm_source=AILA+Mailing&utm_campaign=e373052169-AILA8_01_03_2019&utm_medium=email&utm_term=0_3c0e619096-e373052169-287722545

For more on the H-2B nonagricultural worker program see: https://www.uscis.gov/working-united-states/temporary-workers/h-2b-temporary-non-agricultural-workers

 

U.S. Supreme Court Steps Up for Immigrants in Pereira v. Sessions

per1        per2         per3

On June 21, 2018, the Supreme Court issued its groundbreaking decision in Pereira v. Sessions which holds that Notices to Appear (NTA) that do not specify the date, time and place of removal proceedings do not meet the statutory definition of an NTA and, therefore, do not cut off a noncitizen’s ability to accrue the time in the United States required to qualify for cancellation of removal.

Since it became common practice over the last several years for USCIS to issue NTA’s without including a date, time and place to appear, the implications of Pereira are wide-ranging and, interpreted most broadly, could mean that anyone in the U.S. more than ten years, who can demonstrate harm to a U.S. citizen relative if deported and good moral character, could be granted cancellation of removal, whether or not they were ever issued an NTA in the past. Furthermore, based on the Supreme Court’s decision, immigration courts might not be able to take jurisdiction in matters unrelated to cancellation of removal and the stop time rule and would have to allow for termination of all removal proceedings pertaining to an NTA that does not contain the statutorily required information. Furthermore, it would mean that final removal orders and expedited removal orders issued and/or executed under such circumstances would be invalid. Pereira literally could affect millions of removal cases initiated by the government over the last several years.

The Board of Immigration Appeals (BIA) did not waste much time weighing in, however, and on August 31, 2018, interpreted Pereira narrowly in its holding in Bermudez-Cota. The BIA, in Bermudez-Cota held that an NTA should not be considered defective, for purposes of the stop time rule, if a subsequent notice of hearing is properly served. In other words, any defective NTA can be cured by a hearing notice which contains the date, time and place of the hearing.

However, it is this author’s position that in Pereira, the Supreme Court, in an 8-to-1 decision, spoke clearly and decisively. It stood up for justice and rebuked the government for the sloppy way in which USCIS carries out its important responsibilities in such a punitive process as removal proceedings where people are deported from the U.S., sometimes for life. It underwent an extensive analysis of the statute and its explicit language which is plain and clearly states that the date, time and place of hearing is an essential element of an NTA. While the Supreme Court did not address all the issues, the implications of Pereira will surely be litigated for some time, and this will be a developing area of immigration law for years to come. Anyone ever issued an NTA without the date, time and place to appear included on its face should contact this office to see how they may be affected by the holding in Pereira.

Read Pereira v. Sessions at: https://www.supremecourt.gov/opinions/17pdf/17-459_1o13.pdf

 

USCIS Currently Accepting DACA Renewal Applications

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On September 5, 2017, Attorney General Jeff Sessions announced that the Deferred Action for Childhood Arrivals (DACA) program was being terminated. The same day, USCIS was ordered to reject all initial and renewal DACA applications and associated work authorization requests. In the days following issuance of the announcement, lawsuits were filed across the country challenging termination of the program. Since then, two U.S. district courts have enjoined the termination of DACA for individuals who have previously held DACA status at any time. These courts have ordered USCIS to continue accepting DACA renewal applications from these individuals. However, for those who have never held DACA status, the courts have not yet required USCIS to continue to accept initial DACA applications, but this issue is still being litigated.

Therefore, if you have ever held DACA status before, you should submit your renewal application between 150 to 120 days before your DACA expiration date, so long as you meet the following criteria:

  • You must not have departed the U.S. on or after August 15, 2012, without first having been granted advance parole.
  • You must have resided continuously in the U.S. from the time you submitted the initial request for DACA up until the present time.
  • You must not have been convicted of a felony, a significant misdemeanor, or three or more misdemeanors, and must not otherwise pose a threat to national security or public safety.

 

If your DACA status has already expired, you can still submit a renewal application but you must fill out your DACA application as if you were applying for the first time and you must submit evidence that you meet each DACA eligibility requirement.

For more on DACA eligibility requirements see: https://www.uscis.gov/archive/consideration-deferred-action-childhood-arrivals-daca

DACA is generally a deferred action program, commenced during the Obama administration, that grants relief from deportation and eligibility for work authorization to approximately one million young adults who entered the U.S. before their sixteenth birthday and who have resided here continuously. DACA does not apply to anyone who has been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, or to anyone who would otherwise pose a threat to national security or public safety.

DACA Renewal Tips

Don’t Let Your Work Permit Expire

Follow These DACA Renewal Tips

Some people wait too long to request DACA renewal or do not correctly submit all the required forms and fees. As a result, their Employment Authorization Documents may expire before USCIS can finish processing their requests for DACA renewal. You can lessen the chance that this may happen if you:

• File on time. Submit your renewal request between 150 days and 120 days before the expiration date listed on your current Form I-797 DACA approval notice and Employment Authorization Document.

• Correctly submit all required forms and fees. USCIS will reject your renewal request unless you properly submit: o Form I-821D, Consideration of Deferred Action for Childhood Arrivals; o Form I-765, Application for Employment Authorization; o Form I-765 Worksheet; and o Required fees of $465

• Avoid processing delays. Be sure to submit: o Any new documents and information related to removal proceedings or criminal history that you have not already submitted to USCIS in a previously approved DACA request, o Proof of advance parole if you have traveled outside the United States since you filed your last DACA request that was approved; and o Proof of any legal name change.

• Respond to Requests for Evidence. USCIS may deny your renewal request if you do not respond to a Request for Evidence in a timely manner. For complete instructions, go to the Consideration of Deferred Action for Childhood Arrivals (DACA) page. Since March 27, 2015, USCIS has been mailing renewal reminder notices to DACA recipients 180 days before the expiration date of their current period of deferred action. Previously, these reminder notices were mailed 100 days in advance. The earlier notices are intended to ensure that DACA recipients are reminded before the start of the recommended renewal period and have sufficient time to prepare their renewal requests. USCIS’ current goal is to process DACA renewal requests within 120 days.

USCIS Issues New L1B Transferee Guidance

This policy memorandum provides guidance on the adjudication of the L-1B classification, which permits multinational companies to transfer employees who possess “specialized knowledge” from their foreign operations to their operations in the United States. It provides consolidated and authoritative guidance on the L-1B program, superseding and rescinding certain prior L-1B memoranda… read more

DHS Extends Eligibility for Employment Authorization to Certain H-4 Dependent Spouses of H-1B Nonimmigrants Seeking Employment-Based Lawful Permanent Residence

h4 EAD Spouses

WASHINGTON – U.S. Citizenship and Immigration Services (USCIS) Director León Rodríguez announced today that, effective May 26, 2015, the Department of Homeland Security (DHS) is extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants who are seeking employment-based lawful permanent resident (LPR) status. DHS amended the regulations to allow these H-4 dependent spouses to accept employment in the United States.

Finalizing the H-4 employment eligibility was an important element of the immigration executive actions President Obama announced in November 2014. Extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants is one of several initiatives underway to modernize, improve and clarify visa programs to grow the U.S. economy and create jobs.

“Allowing the spouses of these visa holders to legally work in the United States makes perfect sense,” Rodríguez said. “It helps U.S. businesses keep their highly skilled workers by increasing the chances these workers will choose to stay in this country during the transition from temporary workers to permanent residents. It also provides more economic stability and better quality of life for the affected families.”

Eligible individuals include certain H-4 dependent spouses of H-1B nonimmigrants who:

  • Are the principal beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker; or
  • Have been granted H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 as amended by the 21st Century Department of Justice Appropriations Authorization Act. The Act permits H-1B nonimmigrants seeking lawful permanent residence to work and remain in the United States beyond the six-year limit on their H-1B status.

DHS expects this change will reduce the economic burdens and personal stresses H-1B nonimmigrants and their families may experience during the transition from nonimmigrant to lawful permanent resident status, and facilitate their integration into American society. As such, the change should reduce certain disincentives that currently lead H-1B nonimmigrants to abandon efforts to remain in the United States while seeking lawful permanent residence, which will minimize disruptions to U.S. businesses employing them. The change should also support the U.S. economy because the contributions H-1B nonimmigrants make to entrepreneurship and science help promote economic growth and job creation. The rule also will bring U.S. immigration policies more in line with those laws of other countries that compete to attract similar highly skilled workers.

Under the rule, eligible H-4 dependent spouses must file Form I-765, Application for Employment Authorization, with supporting evidence and the required $380 fee in order to obtain employment authorization and receive a Form I-766, Employment Authorization Document (EAD). USCIS will begin accepting applications on May 26, 2015. Once USCIS approves the Form I-765 and the H-4 dependent spouse receives an EAD, he or she may begin working in the United States.

USCIS estimates the number of individuals eligible to apply for employment authorization under this rule could be as high as 179,600 in the first year and 55,000 annually in subsequent years. USCIS reminds those potentially eligible that this rule is not considered effective until May 26, 2015. Individuals should not submit an application to USCIS before the effective date, and should avoid anyone who offers to assist in submitting an application to USCIS before the effective date.

For more information on USCIS and its programs or about this rule and filing procedures, please visit uscis.gov or follow us on Facebook (/uscis), Twitter (@uscis), YouTube (/uscis) and the USCIS blog The Beacon.