Due to lower than expected filed cases for selected H-1B registrations, likely attributed to the COVID-19 economy, USCIS recently completed a second round of selections for the H-1B cap on August 11. Though no formal announcement has been made by USCIS, the agency on Friday August 14th notified counsel and employer representatives of the selection via email. Selected registrants will be eligible to file a corresponding H-1B petition between August 17 and November 16.
Our firm will continue to provide updates as they are released. In the meantime, we have begun notifying HR of the selection to ensure that those selected are still employed by the registered Petitioner. For those cases selected and approved by our clients to proceed, we will move as quickly as we can to file those cases, and please know that Premium Processing is currently available at this time. Given this move by USCIS to invite more applicants to the H-1B program, we are hopeful that when the dust settles from this round, there still may be even a few additional spots remaining.
On October 2, 2020, the majority of USCIS filing fees will be increased by a weighted average of 20% across the board. New Fees for various nonimmigrant employment-based petitions are summarized below:
|Visa Type||Current Fee||New Fee||Amount Change||Percentage Change|
|E & TN visas||$460||$695||$235||51%|
While most fees for employment-based processes will be increased, the cost of filing an employment-based immigrant petition is reduced from $700 to $555 (21% change). However, the overall cost of filing an adjustment application will increase if interim benefits such as employment authorization and advance parole are also requested. Conversely, the cost for naturalization filings are increasing significantly from $640 to $1,170 – an 83% increase over the current fee. Given the significant increase in Naturalization fees all those individuals who are eligible to file prior to October 2, 2020 should consider doing so.
In addition to fee changes, USCIS will be implementing additional changes, effective October 2, which include:
USCIS has notified about 13,400 of its 20,000 employees (approximately 67%) that they would be furloughed on August 30, 2020 due to Congress’ inability to reach a deal and provide $1.2 billion in emergency supplemental funding that was supposed to come through in the next COVID-19 relief package. The furlough was scheduled for August 3, 2020 but was postponed in late July after the agency updated its financial forecasts to show that it would have a surplus for FY2020 rather than a $571 million deficit. Despite a surplus for FY2020, USCIS still requested the additional government funding, in addition to a 10% surcharge on application fees, to help keep the agency solvent.
As a fee funded agency, USCIS depends on fees generated by applications and petitions to continue its operations. While part of the agency’s revenue decline is attributed to the pandemic, the agency’s revenue decline over the past several years is also attributed to mismanagement and the administration’s immigration policies and priorities. According to the US Immigration Policy Program at the Migration Policy Institute, USCIS received nearly 900,000 fewer petitions between the end of fiscal years 2017 and 2019 – coinciding with the termination of TPS for many countries, and new policies to make it more difficult to obtain status. By reversing course on policies that are harmful to immigrants, and reducing the number and frequency of RFE issuance USCIS might find it has an opportunity to rebuild trust with its consumers and encourage more application filings.
If a deal is not reached by Congress, and USCIS furloughs nearly 67% of its workforce, the agency’s services would be brought to a standstill, impacting the immigration processes for immigrants and nonimmigrants alike. Notably, there will likely be significant delays in receipt notice generation and case processing times. As a result, where an immigration process is time sensitive, we are encouraging premium processing upgrades.
It is worth mentioning that furloughing 2/3rds of any workforce is an extreme response to a funding shortage; it feels a little like taking a sledgehammer to a problem when scissors and a few alterations may do. The breadth of the furlough and the last minute disclosure of a surplus has only added speculation to the political motivations behind this move. With the new fees going into effect in a little over a month, USCIS will see additional revenue as applicants file now to avoid the fee increase, and those who miss out are paying the additional fees. While Congress doesn’t appear to be resolving the funding issue given the lack of consensus on the next round of stimulus, there is another way; put simply USCIS could directly apply the new fee revenue that commences October 2, 2020, and surplus from FY 2020 operations to close the funding gap.
Please contact a member of our team if you have any questions regarding if premium processing ought to be utilized to avoid any delays caused by a potential furlough. We will continue to provide updates as USCIS announces them.
We have previously reported on both the April 22, 2020 Immigrant Visa Proclamation, and the June 22, 2020 Non-immigrant Visa Proclamation signed by President Trump. In both instances we mentioned that litigation was likely to follow given the depth and breadth of the impact these Proclamations have had. It’s one thing for a President to temporarily restrict entry to the U.S. for a bonafide health emergency, but it is entirely something else to implement a six month ban on the entry of certain types of visas without any clear relationship to the health pandemic. In the case of Immigrant Visas, the ban will have been in effect for 8 months assuming it ends as planned on December 31, 2020. Congress has always been the vehicle by which law is made and changed, and these proclamations signal a very dangerous and deliberate over-reach in Presidential power that a court is unlikely to permit.
We previously reported that one law suit was filed by a group of individuals impacted by the NIV Proclamation. Now two additional suits have been filed in federal court, one filed by AILA (American Immigration Lawyers Association), of which all firm attorneys are members, and another filed by several organizations including several trade associations and the J-1 Visa issuer Intrax. The first case to have an initial hearing is set for September 11, 2020, with a decision on the injunction to follow hopefully soon thereafter. We will of course provide an update on these cases as they move through the litigation process. We anticipate there is still an option to sign on to an amicus brief to support these efforts to challenge the NIV Proclamation – if you are HR or Management of a current client please contact our Managing Partner, David Brown – email@example.com if you wish to participate.
In addition to the pending litigation that has recently been filed to overturn the Proclamation, the Department of State recently issued guidance related to interpretation of the NIV Proclamation and interestingly they go much further than we would have ever imagined. While they don’t reverse the NIV Proclamation, the guidance does provide an opportunity to issue visas in situations where the plain language of the Proclamation clearly suggested otherwise. Given that there are additional options for people who are currently out of the country and needing a visa, we will review those cases where people are “stuck” and wanting to return to the U.S. And in situations where individuals need to travel internationally, we will similarly review the new guidance to confirm that a visa is available if one is needed. As with anything travel related these days, we also need to be aware of whether the consulate nearby is open for visa services, in addition to ensuring such travelers are covered by the guidance.
On August 12, the Second Circuit U.S. Court of Appeals limited a lower-court’s nationwide injunction prohibiting the implementation and enforcement of the “public charge” rule during the declared national health emergency in response to the COVID-19 pandemic to New York, Connecticut, and Vermont, the states that had sued over the public charge rule. The public charge rule broadened how USCIS and the DOS determined whether a foreign national applying for admission or adjustment of status is inadmissible if the foreign national is deemed a public charge or likely at any time to become a public charge. As a result, residents of New York, Connecticut, and Vermont will not need to submit Form I-944, or any supporting evidence required by the form, or information related to the receipt of public benefits for certain immigrant and nonimmigrant processes. Prior to this ruling USCIS had accepted the lower court ruling and permitted all applications to avoid filing the I-944. Given the latest decision we are now awaiting guidance from USCIS on whether to again start to include the I-944 in all applications (with the exception of those in NY/CT/VT).
On July 23, the Department of Homeland Security (DHS) announced that it will lift its ban on the Trusted Traveler Program (TTP) for New York residents.
In February, DHS prohibited the state’s residents from enrolling or re-enrolling in TTP programs such as Global Entry, NEXUS, FAST, and SENTRI due to New York’s “Green Light” law which gave undocumented residents the right to apply for driver’s licenses and prevented the DMV from releasing their database to Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP). At the time, DHS asserted that without DMV information CBP could not “properly complete security checks for Trusted Traveler Program applications and renewals submitted by New York residents, greatly increasing our security risks.” However, through a legal filing arising from the lawsuit New York State Attorney General Letitia James filed in response to the ban, the government subsequently conceded that 13 other states and the District of Columbia had similar laws which also limited access to DMV information, but were not targeted by the ban. As a result, the government admitted these facts undermined “the rationale” for DHS’ original decision and its “defense” of that decision. The government’s admission affirms that New York’s TTP ban was political in nature and not policy driven. Two lawmakers on the House Homeland Security Committee are launching an investigation into DHS to determine whether the TTP was “political retribution” by the Trump Administration.
New TTP applicants and renewal applicants are reminded that Trusted Traveler Enrollment Centers remain closed until at least September 8, 2020.
On July 14, in response to China’s national security measures on Hong Kong, President Trump issued an Executive Order (EO) removing Hong Kong’s preferential treatment as a separate customs territory. Nationals born in Hong Kong, and those from the Special Administration Region of Hong Kong, will now be treated as nationals from China in regard to immigrant visa quotas and nonimmigrant visa validity.
In 1992, Congress enacted the Hong Kong Policy Act (“Act”), which allowed the U.S. to treat Hong Kong separately from mainland China in matters concerning trade and economic control after the 1997 handover of sovereignty to China. The Act preserved immigration-related benefits for Hong Kong nationals by maintaining certain provisions related to immigrant and nonimmigrant visa availability.
We will continue to provide updates regarding the impact of the Executive Order as the Department of State and Department of Homeland Security releases further guidance.
On August 3, Federal District Judge Alegenon L. Marbley issued a temporary order requiring USCIS to produce backlogged employment authorization documents (EADs) for already approved cases. An estimate of 50,000 green cards and 75,000 employment documents have been approved, but not yet issued, due to the backlog arising from USCIS’ termination of a contract with an outside vendor that previously produced these documents. Normally, USCIS’ online system indicates that an applicant’s card has been printed within 48 hours of approval. However, with the backlog, it may be weeks or months before an individual is able to receive their EAD card resulting in employees not being able to continue their employment, losing wages and other benefits, or even facing termination. The uncertainty regarding when an employee will ultimately receive their EAD cards has also strained employers and impacted business decisions. Though there is no regulation regarding when USCIS must issue EAD cards, “[it] does not mean that the agency retains unfettered discretion to issue EADs at any time they wish,” the court noted.
Judge Marbley’s temporary order only applies to backlogged EAD cards at this time. We will continue to provide updates regarding this issue and whether there are any legal challenges for backlogged green cards.
Last Friday, the U.S. Government Accountability Office (“GAO”), the independent, nonpartisan agency that works for Congress, often called the “congressional watchdog,” released a report concluding that the appointments of the Department of Homeland Security’s top two officials, Chad F. Wolf (Mr. Wolf) , acting secretary of homeland security, and Kenneth T. Cuccinelli (Mr. Cuccinelli), his deputy, were in violation of the Federal Vacancies Reform Act (“FVRA”). The FVRA requires that certain officials in a federal agency’s existing chain of command assume the role of “acting” while a president seeks Senate confirmation of a permanent replacement, as those individuals have previously received Senate confirmation. In these cases, the GAO determined that the proper line of agency succession was ignored and instead these positions were given to Mr. Wolf and Mr. Cuccinelli. The finding affirms a U.S. District Judge’s ruling in March which had concluded that Mr. Cuccinelli “was not lawfully appointed to serve as acting Director.”
Though the GAO finding has no legal force, the matter has been referred to the DHS Inspector General for review. The report is likely to expose DHS to further legal challenges given the restrictive policies established under Mr. Wolf’s tenure. Already, a federal judge in Maryland had indicated that she may deem a new rule limiting asylum seekers ineligible to work invalid as a result of the improper appointment. The issue will most definitely be raised in other lawsuits currently pending in the courts that challenge the administration’s hard-line immigration policies.
Our firm will continue to provide updates as they arise regarding this matter and if any litigants prevail in using the argument that the policies set forth by DHS should be invalidated because the individual who authorized such polices assumed the role illegally.
On July 28, DHS issued a memorandum that limited the scope of DACA following the Supreme Court’s decision in June blocking the agency from improperly ending the program. The memorandum modifies DACA in the following manner:
Given, the shortened periods for DACA recipients, employers should ensure that employees with a grant of DACA file for employment authorization renewal as soon as six months before the employment authorization expires in order to reduce any potential interruptions in employment.
The Team at Brown Immigration Law
** This newsletter/memo is provided for informational and discussion purposes only. It does not act as a substitute for direct legal contact on an individual basis **