Volume 11, Issue 3 | December 2019
Immigration News & Updates

It seems every time we turn around, the Trump Administration is issuing new rules or proclamations to gum up the works in immigration. The changes affecting asylees and refugees are well-publicized, but many changes also impact our employment-based clients. The good news is that the holidays are almost here, giving all an opportunity to spend time with family and friends and set aside immigration woes. 

Below are summaries of some of the more recent immigration-related developments. Please note that our newsletter is primarily distributed to our employer clients, so we encourage you to share this information with your employees. 
USCIS Announces I-907 Filing Fee Increase, as well as Proposed Changes to all other Filing Fees and Changes to the Premium Processing Clock
On December 2, 2019, the fee to request premium processing of eligible petitions at USCIS increased from $1,410 to $1,440 as part of an annual inflation adjustment.  

In a separate move, on November 14, 2019, DHS published a proposed rule which, if implemented, would increase all other USCIS application and petition fees by a weighted average of 21%. Unlike most government agencies, USCIS is fee-funded. As such, Federal law requires USCIS to conduct biennial fee reviews and recommend fee adjustments to ensure it has funding for the necessary infrastructure to support adjudication of applications and petitions in accordance with the nation’s immigration laws. USCIS last updated its fee structure in December 2016 (at that time increasing fees by a weighted average of 21%, as well).  

The proposed fee changes include authorization to transfer approximately $207 million from USCIS to ICE for immigration enforcement purposes, with DHS indicating that ICE investigations of potential fraud by individuals or entities who have sought immigration benefits before USCIS constitute direct support of immigration adjudication and naturalization services. Other items of particular note within the proposal include: 

  • Form I-129: DHS has proposed separating Form I-129 into several forms based on the requested nonimmigrant classification (e.g. H-1B, L-1, O-1, TN, etc.). As part of this change, USCIS will also charge distinct fees for each nonimmigrant case type, as opposed to the current flat fee of $460. The current proposal increases the H-1B fee to $560, the L-1 fee to $815, the O-1 fee to $715, and the TN fee to $705. 

  • Form I-485 and related applications: Since 2007, USCIS has charged a single fee (currently $1,225) for I-485 adjustment of status applications, including related work (EAD) and travel (AP) authorization. Separate filing fees have not been required for any EAD or AP applications for the duration of the I-485 processing. DHS now proposes to eliminate the concurrent filing benefit for I-765 (EAD) and I-131 (AP) applications, and instead require separate EAD and AP filing fees from all applicants. Furthermore, USCIS proposes eliminating the reduced fee (currently $750) for applicants under age 14. The new I-485 fee (including biometrics) under this proposal is $1,150. While on the surface this appears to be a reduction to the fee, applicants will now be required to pay an additional $490 I-765 application fee and $585 I-131 application fee if they wish to obtain work and travel authorization while their I-485 applications are pending (and may pay these fees multiple times if renewals are needed). This means a standard I-485 applicant may be facing upwards of an 80% increase in filing fees. 
  • Fee Decreases: One positive change is that USCIS has proposed lowering the fee for Form I-140 from $700 to $545. Additionally, although the fee for Form I-539 will be increasing by $30, the biometrics fee will decrease by $55 so there will be a net decrease in the filing fees for I-539 applicants. 

  • Premium Processing Timeframe: Under the proposed rule, USCIS changes the required adjudication timeframe for Premium Processed cases from 15 calendar days to 15 business days. The rule also clarifies that the 15-day clock will reset upon receipt of an RFE or NOID response. Supposedly these changes will minimize the need to suspend premium processing services, as has happened during H-1B cap season the past several years.
  • Additional Proposals: Within the fee proposal, USCIS has also proposed significantly limiting the availability of fee waivers and adding a fee for asylum seekers, which will make the U.S. one of only 4 countries in the world to charge asylees for their initial application. 

The proposed rule is open for public comment for 30 days, after which DHS will be required to review and respond to all comments and make any necessary changes prior to publication of the final rule. While there is no guarantee that the fees and changes noted above will be included in the final rule, we wanted to put you on notice of these proposed changes at this time.  
H-1B Cap Season Approaching: Changes Expected
It’s hard to believe, but the FY2021 H-1B cap season is only months away! This cap season is likely to look much different than it has in the past. As you may recall, last January, USCIS issued a final rule which made significant changes to the H-1B visa lottery process. Importantly, the rule added an electronic registration requirement for petitioners seeking to submit cap-subject H-1B petitions and reversed the order by which USCIS selects petitions under the H-1B cap and advanced degree exemptions. Although the rule became effective on April 1, 2019, USCIS suspended the electronic registration requirement for the FY2020 cap season. Last month, then-Acting Director of USCIS Ken Cuccinelli stated that he has a fairly high degree of certainty that USCIS will be ready to implement the registration tool for the upcoming H-1B cap season, and he expects USCIS will make a formal announcement by the end of the year to clarify whether it will move forward with the tool for this upcoming H-1B cap season. 

Of additional note, last month USCIS published a Final Rule which will require petitioners who wish to participate in the H-1B cap selection process (whenever it is implemented) to pay a $10 fee for each electronic registration submitted to USCIS. 
Public Charge and Healthcare Proclamation
As noted in our August newsletter and more recent news flashes (linked below), DHS published a sweeping amendment to regulations in August, revising the definition of “public charge” in the context of eligibility for immigration benefits. The amendment was scheduled to take effect on October 15. Fortunately, on October 11, several Federal courts issued injunctions to block the implementation of DHS’ new rule. The injunctions blocked the regulation from taking effect and will continue to block the implementation of this rule into the foreseeable future, while the outcomes of the lawsuits are pending. This means that USCIS will continue to accept current versions of all forms and has not changed any public charge-related analyses at this time. 

Meanwhile, the Department of State (DOS) published a separate Interim Final Rule on October 15 which updates and aligns the new public charge policies to the halted DHS rule. DOS’ rule will effect both immigrant and nonimmigrant visa applications at U.S. Embassies and Consulates. On October 24, DOS published a draft of the new form ( DS-5540) for a 60-day public comment period. Although the DOS rule is not subject to the pending lawsuits, DOS has stated that the interim final rule will not be implemented until the form and associated revisions to the Foreign Affairs Manual (FAM) have been finalized. Given the public comment period for the form, the DOS rule will not be implemented in 2019. 

On a separate note, President Trump issued a Proclamation on October 4 on the “Suspension of Entry of Immigrants Who Will Financially Burden the United States Healthcare System.” The Proclamation was due to take effect on November 3, but is subject to a Temporary Restraining Order (TRO) issued by a District Court Judge the previous day. Should the TRO be lifted and the Proclamation allowed to take effect, it will apply to all individuals outside the U.S. applying for an immigrant visa (in order to enter the United States as permanent residents), including a diversity visa, with very limited exceptions. Such individuals will be required to demonstrate to the Consular officer at the time of their interview that they will be covered by approved health insurance within 30 days of entry into the United States, or have the financial resources to pay for reasonably foreseeable medical costs. According to DOS, inability to meet this requirement would result in the denial of the immigrant visa application.

RSST attorneys will continue to monitor the public charge changes and healthcare Proclamation status and we will provide additional information once implementation dates have been announced. 
Update on DACA
As you may recall, in September 2017, at the direction of President Trump, USCIS began a six-month phase-out of the Deferred Action for Childhood Arrivals (DACA) program, which offers protection to approximately 700,000 undocumented immigrants who were brought to the U.S. as children. President Trump asserted at the time that, “the program is unlawful and unconstitutional and cannot be successfully defended in court,” arguing that creating or maintaining the program was beyond the legal power of any president. The DACA program was instituted in 2012 through an Executive Order issued by President Obama.  

The rescission of DACA was challenged in several Federal courts, and injunctions were issued requiring USCIS to continue accepting and adjudicating DACA renewal applications while the litigation is pending. On November 12, 2019, the U.S. Supreme Court heard oral arguments on the legality of the DACA program. The justices seem divided on their anticipated ruling; conservative Supreme Court Justices have voiced that they believe President Trump has the legal authority to rescind DACA, while Justices Sotomayor and Ginsburg agreed that there was no rational or adequate explanation for the termination and no clear recognition that there was anything illegal about DACA. A decision is expected no later than June 2020. 
Miscellaneous Updates
Report on Increased H-1B Denial Rates
The National Foundation for American Policy recently updated its analysis of H-1B Denial Rates based on data available through the USCIS H-1B Employer Data Hub. The article summarizes H-1B denial rates over the past several years and shows that H-1B petitions continue to be denied at higher than normal rates. Specifically, H-1B denial rates for initial (new) employment have risen from 6% in FY2015 to 24% through the third quarter of FY2019. Between FY2010 and FY2015, the denial rate for initial H-1B petitions never exceeded 8% - today’s figure is three times higher. The denial rate for extension petitions has also more than doubled – between FY2010 and FY2017, the rate was never more than 5%, yet in FY2018 and FY2019 (through Quarter 3) that rate has been at 12%. Information Technology companies, in particular, appear to be the target for direct scrutiny by USCIS. 

Blanket L Petitions Denied at Alarming Rates
The struggle continues with blanket L visa adjudications at Consular posts. Officials at the State Department and USCIS have indicated that new L-1 visa policies, which we anticipate to be much more strenuous, are in development. In the meantime, according to Forbes, companies report that U.S. Consulates in India are denying L-1 Visas at alarming rates, with some companies experiencing L visa denial rates of 80 - 90%.

Temporary Protected Status (TPS) Extensions
The Trump Administration has extended the validity of TPS and associated work permits for applicants from El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan through January 4, 2021 while the previously-announced termination of these TPS designations makes its way through the Ninth Circuit Court of Appeals. USCIS has indicated that, if the current preliminary injunction is reversed in a final decision, then the terminations of the TPS designations for El Salvador, Sudan, Nicaragua, and Haiti will take effect, with a 120 - 365 day (depending on the country) transition period to allow individuals time to return to their home countries.  

Poland Added to Visa Waiver Program
Effective November 11, the Visa Waiver Program was expanded to include citizens and nationals of Poland. Individuals may now apply online through the Electronic System for Travel Authorization (ESTA) to travel to the United States for business or tourism purposes. Once ESTA authorization is granted, individuals may travel to the U.S. for up to 90 days without obtaining visa stamps in their passports. ESTA authorization is valid for two years and is renewable. 
Immigrant Visa Numbers and Visa Bulletin
The Chief of the Visa Control and Reporting Division, U.S. Department of State (DOS) provides periodic analyses of current immigrant visa trends and future projections, beyond the basic visa availability updates provided in the monthly Visa Bulletin. Following is a synopsis of the current trends in immigrant visa number availability, as of December 2019: 

  • EB-1: As noted previously, this category is expected to remain retrogressed for the foreseeable future. EB-1 worldwide and EB-1 China are expected to advance at a monthly pace of up to 3 months. EB-1 India should expect little to no forward movement. As of September, there were approximately 16,000 EB-1 India applicants waiting for the 2,803 visas allocated annually to them, so EB-1 India will likely remain severely backlogged for years absent significant changes to the system. 
  • EB-2 & EB-3 Worldwide: The December Visa Bulletin indicates that demand in these categories has steadily increased over the past month, so it is possible that the categories could retrogress as early as January 2020.  

  • EB-2 & EB-3 China: EB-2 China may advance more quickly as individuals downgrade to EB-3, but is unlikely to return to the most advanced date of January 2017 from FY2019. Meanwhile, EB-3 China may see limited advancement due to this downgrade demand. 

  • EB-2 & EB-3 India: EB-2 India is expected to advance slowly, at a pace of up to one week per month. Increased upgrades from EB-3 to EB-2 may impact visa availability in the coming months.

There are five preference categories for the allotment of employment-based immigrant visa numbers, and four preference categories for family-based immigrant visa numbers. For purposes of this newsletter, we are including only the categories most applicable to our business clients. For additional information on other preference categories not included below, please contact the attorney with whom you work, or visit the State Department's website.  

Employment-Based Preference Categories

  • First (EB-1): Priority Workers. Includes Persons of Extraordinary Ability, Outstanding Professors and Researchers, and Multinational Managers or Executives.
  • Second (EB-2): Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability. Also includes National Interest Waiver (NIW) applicants.
  • Third (EB-3): Skilled Workers, Professionals, and Other Workers.

Family-Based Preference Category

  • FB-2A: Spouses and Children of Permanent Residents.

Immigrant visa numbers are available only to an applicant whose priority date is earlier than the cut-off date listed in the charts below. "C" means current, i.e., numbers are available for all qualified applicants.   

Following are the relevant Visa Bulletin Final Action Dates for December 2019 (i.e. dates that allow an application to be adjudicated):
Dates for Filing:

The Dates for Filing are traditionally used by the State Department to initiate the immigrant visa interview process, with the expectation that those dates will become current (i.e. be listed on the Final Action Dates chart) within the next 8 to 12 months. USCIS announces each month on its website whether it will use the Final Action Dates or the Dates for Filing chart to accept I-485 applications. So far this Fiscal Year, USCIS has allowed individuals whose priority date is current based on the Dates for Filing chart to file their I-485 applications (with associated applications for EAD and Advance Parole), but those I-485s will not be adjudicated until the priority date becomes current on the Final Action Dates chart. 

Following are the relevant Visa Bulletin Dates for Filing for December 2019 (i.e. dates that allow an application to be filed with USCIS):
Processing Times
While processing times at USCIS and the Department of Labor (DOL) fluctuate, both agencies attempt to adjudicate cases on a first in - first out basis and in the order in which they were received. Based on reported processing times from those agencies and recent case adjudications at RSST Law Group, following are the average processing times for the most commonly-filed employment-based applications and petitions:  
Please keep in mind that these are average processing times, and there are always some outliers (i.e. cases that are approved more quickly, and some which take longer).  
In the News: What's Happening at RSST Law Group - need to update
  • RSST Law Group welcomed a new Associate Attorney last month, Emily Amico. We’re excited to have her join the practice. 
  • RSST Law Group has once again been named by U.S. News Media Group and Best Lawyers as a First-Tier law firm in the area of Immigration Law in Boston in the 2020 U.S. News Best Law Firms rankings.

  • On October 23, Heidi Snyder gave a presentation at Tufts Medical Center entitled, “Pathways to Permanent Residence for International Physicians & Researchers.” 
Attorneys at RSST Law Group

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