Immigration News

PREMIUM PROCESSING FEE HAS INCREASED

Date: 10/16/2020

Today USCIS announced that it will increase premium processing fees beginning on Monday, October 19, 2020, as included in the Continuing Appropriations Act, 2021 and Other Extensions Act, which was signed into law on September 30, 2020. 

Fees will increase from $1,440 to $2,500 for benefit requests that are already eligible for premium processing services through the Form I-907, Request for Premium Processing, except for H-2B and R-1 petitions. Those petitions will see an increase from $1,440 to $1,500.

Any Form I-907 that is postmarked on or after October 19, 2020, must include the new fee amount. Any filings that are postmarked on or after October 19, 2020, that include the incorrect premium processing fee, will see the Form I-907 rejected and the fee returned. Filings sent by courier services such as UPS, Fed Ex, and DHL, the postmark date will be the date included on the courier receipt.

NEW REGULATIONS AFFECTING H-1B VISAS AND PREVAILING WAGES

Date: 10/08/2020

A new Department of Labor regulation, which took effect October 8, significantly lifts prevailing wages for the H-1B, E-3, H-1B1 and PERM programs.

A second regulation issued by the Department of Homeland Security will tighten the criteria for the H-1B program by revising key H-1B definitions like “specialty occupation,” limiting third-party placement H-1B validity to one year increments, and reimplementing contract and itinerary requirements that had been rescinded earlier this year, among other changes. This rule is to take effect December 7, 2020.

BREAKING NEWS: H, J, & L VISAS ARE AVAILABLE FOR CONSULAR PROCESSING

Date: 10/02/2020

On October 1, 2020, a Federal Court in California granted a preliminary injunction barring the Department of Homeland Security and the Department of State (US Embassies and Consulates abroad) to refuse processing of all H, J & L visas.

This means that any foreign worker, whose employer was part of the lawsuit, who is currently outside of the US, and seeks a H-2, H-1B, H-4, J-1, J-2, L-1A and L-1B visa can now schedule a nonimmigrant visa appointment at a US Embassy and Consulate, without having to apply for a National Interest Exemption, and obtain a visa (provided the person satisfies all the requirements established by the Immigration and Nationality Act).

DIVERSITY VISA LOTTERY WINNERS ARE SHIELDED FROM BAN

Date: 09/08/2020

On September 4, 2020, a D.C. federal judge on Friday temporarily barred the Trump administration from applying its visa ban to foreign citizens who won green cards in the Diversity Visa lottery, finding that the U.S. Department of State's refusal to process their visas is likely illegal.

U.S. District Judge Amit P. Mehta said the federal government had "unreasonably delayed processing" of green cards won by a group of lottery winners and their relatives, who had found themselves unable to secure visas to move to the U.S. under President Donald Trump's travel restrictions.

The order came down in five consolidated lawsuits targeting Trump's April and June proclamations barring certain foreign citizens seeking green cards and work visas from abroad from entering the U.S. The plaintiffs — a group of over 1,000 American citizens with overseas relatives, U.S.-based employers, diversity lottery winners and foreign nationals with approved petitions for temporary worker visas — had argued that Trump had overstepped his authority when he blocked them from entering the U.S.

Judge Mehta was unconvinced that the proclamations were unconstitutional.

His decision deferred to the U.S. Supreme Court's 2018 ruling in Trump v. Hawaii , where the justices upheld Trump's previous travel ban against foreigners from a handful of countries. By upholding the ban — which immigration advocates decried as a "Muslim ban" — the high court held that the president may block foreigners from entering the U.S. if he finds that their entry is "detrimental to the interests of the United States."

"Diversity visa lottery winners are people who have come to this nation, like millions before, to seek a better life for themselves and their families, and to pursue the American Dream. They do not deserve to be caricatured as common criminals, or to be used as a political wedge issue," Judge Mehta wrote. "But for the same reasons that the court in Trump v. Hawaii rejected a similar challenge based on purported religious animus, the court does so here, too."

When Trump set the April travel restrictions, he said they were in response to high unemployment within the U.S., and he "amplified" that reasoning in the June ban, Judge Mehta said.

The plaintiffs pushed back against Trump's rationale and provided evidence that new immigrants wouldn't displace American workers, according to court filings. But "however persuasive" those arguments were in a policy forum, the courts are "decidedly constrained," the judge said.

"If the president were to act on 'plainly false pretenses,' as plaintiffs fear, Congress possesses ample powers to right that wrong. The scope of judicial review is circumscribed," he said.

However, Judge Mehta was swayed by claims that the State Department unlawfully halted progress on the foreign citizens' applications based on Trump's orders. Though the orders will prevent the applicants from entering the U.S. through the end of the year, they don't prevent the State Department from issuing visas. Therefore, the individuals argued that the State Department had enacted its own "no visa policy" outside the normal rulemaking processes, according to the order.

The government argued there was no secret policy suspending the applications, but Judge Mehta saw otherwise.

"Defendants, through a cluster of guidance documents, cables and directives, have ordered consular offices and embassies to cease processing and issuing visas for otherwise qualified applicants," he wrote. "That is paradigmatic final agency action."

Further, the State Department had provided "no justification" for why it had suspended visa processing, the judge said. In the case of the lottery winners, the State Department had also failed to explain why it had stopped work on their visas. If the lottery winners don't receive their visas by Sept. 30, immigration law dictates that they lose the visas entirely.

The State Department can't "effectively extinguish" this year's lottery program "by simply sitting on its hands letting all pending diversity visa applications time out," the judge said.

Though Judge Mehta ordered relief for the diversity lottery winners, he declined to do so for the other visa seekers, including those requesting work visas and green cards through family members.

The other visa seekers were "likely" to win on their claims against the State Department, but the court couldn't order relief for them, the judge said.

"The family-visa plaintiffs identify vast harms stemming from being separated from their family members," the judge said. "The court has no doubt that this separation has been devastating ... but this harm would continue to flow from the proclamations' ban on entry, even if the court were to grant relief."

The judge ordered the government to update the court on Sept. 25 on how many diversity visas have yet to be issued. The court will reconsider during that briefing whether to order the State Department to reserve any unprocessed diversity visas for the next year, the order said.

 

DIVERSITY VISA LOTTERY WINNERS ARE SHIELDED FROM BAN

Date: 09/08/2020

On September 4, 2020, a D.C. federal judge on Friday temporarily barred the Trump administration from applying its visa ban to foreign citizens who won green cards in the Diversity Visa lottery, finding that the U.S. Department of State's refusal to process their visas is likely illegal.

U.S. District Judge Amit P. Mehta said the federal government had "unreasonably delayed processing" of green cards won by a group of lottery winners and their relatives, who had found themselves unable to secure visas to move to the U.S. under President Donald Trump's travel restrictions.

The order came down in five consolidated lawsuits targeting Trump's April and June proclamations barring certain foreign citizens seeking green cards and work visas from abroad from entering the U.S. The plaintiffs — a group of over 1,000 American citizens with overseas relatives, U.S.-based employers, diversity lottery winners and foreign nationals with approved petitions for temporary worker visas — had argued that Trump had overstepped his authority when he blocked them from entering the U.S.

Judge Mehta was unconvinced that the proclamations were unconstitutional.

His decision deferred to the U.S. Supreme Court's 2018 ruling in Trump v. Hawaii , where the justices upheld Trump's previous travel ban against foreigners from a handful of countries. By upholding the ban — which immigration advocates decried as a "Muslim ban" — the high court held that the president may block foreigners from entering the U.S. if he finds that their entry is "detrimental to the interests of the United States."

"Diversity visa lottery winners are people who have come to this nation, like millions before, to seek a better life for themselves and their families, and to pursue the American Dream. They do not deserve to be caricatured as common criminals, or to be used as a political wedge issue," Judge Mehta wrote. "But for the same reasons that the court in Trump v. Hawaii rejected a similar challenge based on purported religious animus, the court does so here, too."

When Trump set the April travel restrictions, he said they were in response to high unemployment within the U.S., and he "amplified" that reasoning in the June ban, Judge Mehta said.

The plaintiffs pushed back against Trump's rationale and provided evidence that new immigrants wouldn't displace American workers, according to court filings. But "however persuasive" those arguments were in a policy forum, the courts are "decidedly constrained," the judge said.

"If the president were to act on 'plainly false pretenses,' as plaintiffs fear, Congress possesses ample powers to right that wrong. The scope of judicial review is circumscribed," he said.

However, Judge Mehta was swayed by claims that the State Department unlawfully halted progress on the foreign citizens' applications based on Trump's orders. Though the orders will prevent the applicants from entering the U.S. through the end of the year, they don't prevent the State Department from issuing visas. Therefore, the individuals argued that the State Department had enacted its own "no visa policy" outside the normal rulemaking processes, according to the order.

The government argued there was no secret policy suspending the applications, but Judge Mehta saw otherwise.

"Defendants, through a cluster of guidance documents, cables and directives, have ordered consular offices and embassies to cease processing and issuing visas for otherwise qualified applicants," he wrote. "That is paradigmatic final agency action."

Further, the State Department had provided "no justification" for why it had suspended visa processing, the judge said. In the case of the lottery winners, the State Department had also failed to explain why it had stopped work on their visas. If the lottery winners don't receive their visas by Sept. 30, immigration law dictates that they lose the visas entirely.

The State Department can't "effectively extinguish" this year's lottery program "by simply sitting on its hands letting all pending diversity visa applications time out," the judge said.

Though Judge Mehta ordered relief for the diversity lottery winners, he declined to do so for the other visa seekers, including those requesting work visas and green cards through family members.

The other visa seekers were "likely" to win on their claims against the State Department, but the court couldn't order relief for them, the judge said.

"The family-visa plaintiffs identify vast harms stemming from being separated from their family members," the judge said. "The court has no doubt that this separation has been devastating ... but this harm would continue to flow from the proclamations' ban on entry, even if the court were to grant relief."

The judge ordered the government to update the court on Sept. 25 on how many diversity visas have yet to be issued. The court will reconsider during that briefing whether to order the State Department to reserve any unprocessed diversity visas for the next year, the order said.

 

ICE Update on Federal Guidance for Foreign Students for Fall 2020 Semester

Date: 07/29/2020

On July 24, 2020, ICE issued an update on the Federal guidance for the Fall 2020 semester students, which states that the F and M students and schools certified by SEVP should abide by guidance issued in March 2020.

The guidance enables schools and students to engage in distance learning in excess of regulatory limits due to the public health emergency generated by COVID-19. The March 2020 guidance applies to nonimmigrant students who were actively enrolled at a U.S. school on March 9 and are otherwise complying with the terms of their nonimmigrant status, whether from inside the U.S. or abroad. SEVP will not issue a temporary final rule impacting nonimmigrant students for the fall school term.

 

In accordance with March 2020 guidance, nonimmigrant students in new or initial status after March 9 will not be able to enter the U.S. to enroll in a U.S. school as a nonimmigrant student for the fall term to pursue a full course of study that is 100 percent online. Additionally, designated school officials should not issue a Form I-20 to a nonimmigrant student in new or initial status who is outside of the U.S. and plans to take classes at an SEVP-certified educational institution fully online.

USCIS publishes Clarifications for the guidance on further deployment of capital for EB-5 Investors’ visas

Date: 07/29/2020

 

USCIS issued clarifying policy guidance regarding deployment of investment capital, including further deployment after the job creation is satisfied.
The Immigration and Nationality Act (INA) makes visas available to qualified aliens who will contribute to the economic growth of the United States by investing in U.S. businesses and creating jobs for U.S. workers. An alien investor must sustain his or her investment “at risk” throughout the 2- year period of conditional permanent residence to be eligible for removal of conditions on his or her permanent resident status.
These clarifications apply to all Form I-526 and I-829 petitions pending on or after July 24, 2020.
Policy Highlights
• Clarifies requirements for deployment of capital generally, including providing new language regarding the deployment of capital through any financial instrument that meets applicable requirements1 as well as explaining how the purchase of financial instruments on the secondary market will generally not satisfy such requirements.
• Clarifies that capital may be further deployed into any commercial activity that is consistent with the purpose of the new commercial enterprise to engage in the ongoing conduct of lawful 
business. This clarification is meant to address potential confusion among stakeholders regarding prior language about the “scope” of the new commercial enterprise while remaining consistent with applicable eligibility requirements.
• Provides that further deployment must be through the same new commercial enterprise.
• Provides that further deployment must be within the geographic area of the same regional center, including any amendments to the regional center’s geographic area approved before the further deployment.
• Explains that, based on an internal review and analysis of typical EB-5 capital deployment structures, USCIS generally considers 12 months as a reasonable amount of time to further deploy capital, but will consider evidence showing that a longer period was reasonable.

New DACA Memorandum

Date: 07/29/2020

The Department of Homeland Security (DHS) issued a new memorandum regarding DACA applications and renewals. In summary the memo states that all future DACA and EAD renewals
 will be limited to 1 year increments and DACA recipients cannot travel abroad unless they can show exceptional circumstances.
The memo became effective July 28, 2020, and it prescribes DHS to:
• Reject all initial DACA requests and associated applications for Employment Authorization Documents, and refund all associated fees, without prejudice to re-filing such requests should DHS determine to begin accepting initial requests again in the future.
• Adjudicate all pending and future properly submitted DACA renewal requests and associated applications for Employment Authorization Documents from current beneficiaries.
• Limit the period of any deferred action granted pursuant to the DACA policy after the issuance of this memorandum (and thereby limit the period of any associated work authorization) to one year.
• Refrain from terminating any grants of previously issued deferred action or revoking any Employment Authorization Documents based solely on the directives in this memorandum for the remaining duration of their validity periods.
• Reject all pending and future Form I-131 applications for advance parole from beneficiaries of the DACA policy and refund all associated fees, absent exceptional circumstances.
• Refrain from terminating any grants of previously approved advance parole based solely on the directives in this memorandum for the remaining duration of their validity periods.
• Exercise its discretionary authority to terminate or deny deferred action at any time when immigration officials determine termination or denial of deferred action is appropriate.

 

NEW EMPLOYMENT AUTHORIZATION RULES FOR ASYLUM APPLICANTS

Date: 06/23/2020

The new rule prevents aliens who, absent good cause, illegally entered the United States from obtaining employment authorization based on a pending asylum application. Additionally, the rule defines new bars and denials for employment authorization, such as for certain criminal behavior; extends the wait time before an asylum applicant can apply for employment authorization from 150 days to 365 calendar days; limits the employment authorization validity period to a maximum of two years; and automatically terminates employment authorization when an applicant’s asylum denial is administratively final.

See the full text of the rule at: https://www.uscis.gov/news/news-releases/uscis-rule-strengthens-employme...

USCIS RESUMES PREMIUM PROCESSING

Date: 05/29/2020

U.S. Citizenship and Immigration Services today announced that it will resume premium processing for Form I-129, Petition for a Nonimmigrant Worker and Form I-140, Immigrant Petition for Alien Workers, in phases over the next month.

Effective June 1, 2020, USCIS will accept Form I-907, Request for Premium Processing Service for all eligible Form I-140 petitions.

Effective June 8, USCIS will accept premium processing requests for:

H-1B petitions filed before June 8 that are pending adjudication and are cap-exempt (for example, petitions filed by petitioners that are cap-exempt and petitions filed for beneficiaries previously counted toward the numerical allocations).

All other Form I-129 petitions (non H-1B petitions) for nonimmigrant classifications eligible for premium processing filed before June 8 that are pending adjudication.

Effective June 15, USCIS plans on resuming premium processing for:

H-1B petitions requesting premium processing by filing an I-907 concurrently with their I-129 (or request for a petition filed on or after June 8) and are exempt from the cap because:

The employer is cap-exempt or because the beneficiary will be employed at a qualifying cap-exempt institution, entity or organization (such as an institution of higher education, a nonprofit research organization or a governmental research organization); or

The beneficiary is cap-exempt based on a Conrad/IGA waiver under INA section 214(l).

Effective June 22, USCIS plans on resuming premium processing for all other Form I-129 petitions, including:

All H-1B cap-subject petitions (including those for fiscal year 2021), including change of status from F-1 nonimmigrant status, for both premium processing upgrades and concurrently filed I-907s.

All other Form I-129 petitions for nonimmigrant classifications eligible for premium processing and requesting premium processing by filing an I-907 concurrently with their I-129.

 

All dates are subject to change as USCIS continues to take on more premium processing requests and USCIS will announce any changes to these dates accordingly.

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