USCIS Announces More Fees and Fee Increases

By Robert Y. Maples˘ on Posted in Deferred Action for Childhood Arrivals, Deferred Action for Childhood Arrivals program, USCIS

Nearly 96% of the USCIS budget derives from fees. In our coverage of Congress, appropriations, continuing resolutions, and government shutdowns, we are reminded that USCIS is a fee-driven agency, as it does not depend on appropriations for its operations and, for example, remains open during government shutdowns over appropriations. We wrote last week about a $10.00 fee for H-1B Registration.

On Nov. 8, USCIS published a notice of proposed rulemaking for an adjustment of fees to meet operational needs. Among the diversity and breadth of fees addressed in the Examinations Fee Accounts 300+ page posting, a few proposed fees have received a lot of public attention:

  • DACA renewal fee from $495 to $765;
  • $50 dollar asylum application fee; and
  • Citizenship application fee from $640 to $1170.00, among others.

As we enter public discourse on the current Continuing Resolution and related Congressional discussions, we remind readers that in all likelihood USCIS will be fee-funded and open for business!

As always, please direct specific questions to your GT attorney, and check back as this blog is updated as events warrant.

Chad Wolf Becomes New Acting Secretary of Homeland Security

By Robert Y. Maples˘ on Posted in Department of Homeland Security, President Trump's Administration, USCIS

After receiving Senate confirmation for an undersecretary position earlier in the day, Chad Wolf was sworn in and placed as the next Acting Secretary of the Department of Homeland Security (DHS). Since January 2017, there has been a mix of Senate-confirmed secretaries: John Kelly and Kristjen Nielsen; and acting secretaries: Elaine Duke, Kevin McAleenan, and now, Chad Wolf.

It is also reported that current Acting USCIS Director Ken Cuccinelli moves to Acting Deputy Secretary of DHS, and Mark Koumans, current Deputy Director, moves to Director of USCIS.

In related news, Senate Homeland Security & Governmental Affairs leadership, Senators Johnson (R-WI) and Peters (D-MI), sent a letter to President Trump last week drawing attention to current vacancies at DHS.  They wrote:

Currently, 7 of the 18 DHS offices requiring Senate confirmation, including the Department’s three top positions, are vacant with no nominee pending. Many of these positions have remained vacant for months, and some for years, without a formal nominee for the Senate to consider. This widespread use of temporary leadership—individuals who, though perhaps qualified, do not serve with the imprimatur of having been confirmed by the Senate—makes it more difficult for the Department to achieve its long-term strategic objectives. Independent government watchdogs, experts, and current and former DHS employees, have recognized the importance of Senate-confirmed leaders and warned of the dangers of pervasive vacancies to government accountability and national security. 

Many observers note the uniqueness of the Senators’ bi-partisan plea to the president. As of this writing, we have not seen a White House response.

Please consult with your GT attorney with specific questions about this blog post, and please check back, as this report and others will be updated as events warrant.

$10.00 Fee for H-1B Electronic Registration

By Caterina Cappellari on Posted in H-1B

U.S. Citizenship and Immigration Services announced it will require a $10 non-refundable fee for each H-1B registration, once it implements the electronic registration system. The final rule, Registration Fee Requirement for Petitioners Seeking to File H-1B Petitions on Behalf of Cap-Subject Aliens, will be effective Dec. 9, 2019. Upon implementation of the electronic registration system, petitioners seeking to file H-1B cap-subject petitions, including those eligible for the advanced degree exemption, will first have to electronically register with USCIS during a designated registration period, unless the requirement is suspended. The registration fee, which will be required when registrations are submitted, is part of an agency-wide effort to modernize and more efficiently process applications to live or work in the United States. This fee is non-refundable.

USCIS is planning to implement the registration process for the fiscal year 2021 H-1B cap selection process, pending completed testing of the system. The agency will announce the implementation timeframe and initial registration period in the Federal Register once a formal decision has been made.

For more on the H-1B program, click here.

Poland Designated 39th Member Country in Visa Waiver Program

By Robert Y. Maples˘ and Anna H. Morzy on Posted in President Trump's Administration, Uncategorized, Visa Waiver Program, Visas

As reported previously, President Trump announced that his administration has nominated Poland as a Visa Waiver Program (VWP) participating country. Today, Acting Secretary of Homeland Security Kevin McAleenan formally announced the designation of Poland into the Visa Waiver Program (VWP) . On Nov. 11, 2019, Polish citizens and nationals will have the ability to apply for travel to the United States for up to 90 days for tourism or business purposes without having to obtain a U.S. visa.

The DHS announcement states, “This designation demonstrates the strong partnership and cooperation between the United States and Poland, its trusted partner. The Visa Waiver Program will expand cultural ties and strengthen the economy of both nations by encouraging tourism and business exchanges. Poland will be the 39th member of the program. More information on the Visa Waiver Program can be found here.”

To learn more about the VWP, please visit https://www.dhs.gov/visa-waiver-program-requirements. Please contact your GT attorney with any specific questions.

Comprehensive EB-5 Modernization Legislation Introduced in the U.S. Senate

By Robert Y. Maples˘ on Posted in EB-5 Modernization Rule, EB-5 Program, Immigration Law, Visas

Today, Senators Graham (R-SC), Rounds (R-SD) and Cornyn (R-TX) introduced the “Immigrant Investor Program Relief Act” (S. 2778, the Act) proposing long overdue improvements to modernize the EB-5 program in alignment with industry and market principles.  The Act reflects a fair compromise between rural and urban stakeholders providing substantial market advantages to rural and urban distressed areas while providing opportunities  for “downtown” projects.

Major programmatic provisions under the Act:

Duration of Reauthorization – The program’s authorization is extended for six years through Sept. 30, 2025.

Targeted Employment Area (TEA) Definitions

Rural Area definition: The term “‘rural area” means any area that:

  • is outside of the boundary of any city or town with a population of 20,000 or more people; and
  • is outside of a metropolitan statistical area; or
  • is within any census tract that is greater than 100 square miles in area and has a population density of fewer than 100 people per square mile.

Urban Distressed Area Definition: TEAs are limited to a single-census tract that is designated by the U.S. Treasury Department as a “Qualified Opportunity Zone,” as per the Tax Cuts and Jobs Act.

Investment Amounts

  • Establishes and maintains a $100,000 differential between the two investment levels.
  • New minimum investment level for TEAs is $1,000,000.
  • New non-TEA amount is $1,100,000.
  • These levels indexed to inflation going forward.

TEA Set-Asides

  • 15% of visas for Rural
  • 15% of visas for Urban Distressed
  • Unused visas roll-over annually at the end of each year to general visa pool for access by all projects in the immediately following year

Transition Rules to New Program Requirements -90 days after date of enactment the new law takes effect.  Individual I-526 petitions that were pending up to date of enactment are grandfathered and not subject to new investment amounts.  Pending petitions rejected after enactment and re-filed would be subject to new investment amounts. 

Backlog Relief and Suggested Additional Revenue Source – Advance Parole and work authorization.

  • All pending applicants in queue (approximately 30,000) should have the option to pay a fee to enable the individual and derivatives to travel to the U.S. and obtain work authorization if they have an approved I-526 and have been waiting for 3 years.
  • All new Investor Petitions would be required to pay an additional $50,000 that would go into the new fund.
  • The revenues raised by the EB-5 program improvement fee/backlog fee should be maintained separately for use by Congress for programs deemed in the national interest.

Sovereign Wealth Funds (SWF) – No bar on SWF capital in projects also funded by EB-5 capital.

Premium processing for Filed Cases 120 days

Significant New Revenue Sources for Congress and the Agency

Integrity Measures to Bolster National Security and Fraud Deterrence

  • DHS provided with the authority to conduct criminal background checks and obtain biometric information from individuals involved in the regional center program.
  • Establish new authority for DHS to debar individuals, and suspend or terminate regional centers, based on program non-compliance.
  • Clarify the authority of DHS to deny or revoke immigrant investor petitions for reasons including fraud, misrepresentation, or national security concerns.
  • Establish an EB-5 Integrity Fund to provide rigorous program oversight, which would be funded by regional center program participants.
  • Create thorough annual reporting and accounting requirements for regional center operators.
  • Enforce strict new requirements for third-party promoters marketing or promoting regional center investment projects.
  • Provide DHS with improved investigative tools to ensure that an investor’s funds are derived from legitimate and lawful sources.
  • Provisions to ensure that USCIS engages in a proper and non-preferential way with any person or entity involved in the EB-5 program.
  • CFIUS Reform compliance for covered transaction as per the Foreign Investment Risk Review Modernization Act (FIRRMA).

Please contact your GT attorney with any specific questions, and please watch this space for updates.

TPS Extensions for El Salvador, Haiti, Honduras, Nicaragua, and Sudan

By Caterina Cappellari on Posted in El Salvador, Haiti, honduras, nepal, Nicaragua, Sudan, TPS

The Department of Homeland Security (DHS) announced on Nov. 1, 2019, the extension of the validity of Temporary Protected Status (TPS)-related documentation for beneficiaries under the TPS designations for El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan through Jan. 4, 2021. The announcement is based on a Federal Register notice that automatically extends the validity of Employment Authorization Documents; Forms I-797, Notice of Action; and Forms I-94, Arrival/Departure Record (collectively, TPS-related documentation). The new validity dates for the affected countries are:

TPS Designation(s) Current Expiration Date New Expiration Date
El Salvador, Haiti, Nicaragua, and Sudan Jan. 2, 2020 Jan. 4, 2021
Honduras Jan. 5, 2020 Jan. 4, 2021
Nepal March 24, 2020 Jan. 4, 2021

The extension of TPS-related documentation is in compliance with the preliminary injunctions of the U.S. District Court for the Northern District of California in Ramos, et al. v. Nielsen, et. al. and two other preliminary injunctions from the Eastern District of New York and the Northern District of California.  Should the government prevail in Ramos, the termination of TPS for Nicaragua and Sudan will take effect no earlier than 120 days from any appellate mandate to the district court, and the termination of TPS for El Salvador will take effect no earlier than 265 days from any appellate mandate to the Ramos district court, to allow for orderly transition for affected TPS beneficiaries.

For more information, see the notice and the TPS page on the USCIS website.

USCIS Announces Premium Processing Fee Increase for Certain Employment-based Petitions

By Kristen Burke on Posted in Foreign Worker, Form I-129, Premium Processing

On Oct. 30, 2019, U.S. Citizenship and Immigration Services (USCIS) announced that it is increasing the fee to request premium processing for certain employment-based petitions.  Beginning on Nov. 29, 2019, The premium processing fee will increase to $1,440 from the current fee of $1,410 for Form I-129, Petition for a Nonimmigrant Worker, and Form I-140, Immigrant Petition for Alien Worker.

Premium processing, a service offered for certain petitions, requires USCIS to adjudicate a petition (i.e., approve, deny, or send a request for evidence) within 15 calendar days. The increase is based upon the percentage change in the Consumer Price Index-Urban Consumers since the premium processing fee of $1,225 was introduced. Premium processing is available for many employment-based petitions, such as H-1B, L-1, TN, O-1 and some I-140 petitions.

For more information related to premium processing, click here.

Extension of El Salvador TPS Wind-Down Through Jan. 4, 2021, Announced

By Robert Y. Maples˘ on Posted in El Salvador, Temporary Protected Status, TPS

Today, El Salvador’s President Nayib Bukele announced on Twitter a one-year extension (through Jan. 4, 2021) of the wind-down period of Temporary Protected Status (TPS) for approximately 200,000 El Salvadorians working in the United States. Prior to today’s announcement and as previously reported, TPS status for El Salvador was extended in January 2018 through Sept. 9, 2019. Meanwhile, litigation was filed to block termination of the program.

While publicly reported as a “one-year extension,” USCIS Acting Director Ken Cuccinelli attempted to clarify today’s announcement on Twitter:

Today’s announcement does not require Congressional action. Many observers note the recent litigation and country-to-country agreements reached as making today’s announcement possible.

Please contact your GT attorney with specific questions, and check back, as we will update this story when USCIS or others provide updates.

For more information on immigration matters related to TPS, please click here.

Will the Congress Yield – for Immigration Reform?

By Laura Foote Reiff, Robert Y. Maples˘ and Kristen W. Ng on Posted in Global Immigration, Green Card, Immigration Law, Immigration Reform, India

On Oct. 17 a fiery debate occurred on the U.S. Senate floor. Two great supporters of immigrants and immigration reform, Senators Dick Durbin (D-IL, Minority Floor Leader) and Mike Lee (R-UT, Chairman, Senate Judiciary Subcommittee on Antitrust) battled to a draw on an issue they both support – eliminating the per-country caps on employment-based immigration. This is not the first conflict these senators have had on the subject. Senator Lee and 34 cosponsors of S.386 – Fairness for High-Skilled Immigrants Act of 2019, have vowed to come to the Senate floor as often as necessary to get the elimination of caps done. Senator Durbin agrees philosophically, but wants to go further to provide additional relief for immigrants seeking work in the United States. Senators Durbin and Leahy introduced an alternative plan, the RELIEF Act, instead.

Per-country caps on immigrant visas have been part of immigration law for some time. They were imposed to cap the number of employment-related visas that can be issued annually and to “cap” each participating country to no more than 7% of the total in any given year. This system has worked for years but is increasingly viewed as “unworkable” by developing large countries, such as India, who feel their citizens are being unduly harmed by country size.

Hundreds of Indian supporters sat in the Senate Gallery watching the proceeding last week. Each senator asked for Unanimous Consent (UC) to move their respective bills, and each objected to the other – cancelling each other out legislatively. Without UC, the senators were deadlocked. The Senate awaits another day and another attempt by these or other senators to address the issue.

Will the Congress yield and pass immigration reform this session? This is yet to be known as we all wait for the next floor debate upon hearing, “I rise today to request Unanimous Consent… Reserving the right to object…”

For more on immigration reform, click here.

Reminder of the Automatic EAD Extension for Certain TPS Beneficiaries

By Sarah E. Amendola on Posted in Employment Authorization Documents (EAD), Temporary Protected Status

E-Verify released a reminder on Sept. 27, 2019, that certain employment authorization documents (EADs) issued by United States Citizenship and Immigration Services (USCIS) to Temporary Protected Status (TPS) beneficiaries from Sudan, Nicaragua, Haiti, and El Salvador are automatically extended through Jan. 2, 2020. We reported the Department of Homeland Security’s (DHS) notice of their action to extend the TPS designation for these individuals earlier this year (See Temporary Protected Status Extended for Sudan, El Salvador, Haiti, and Nicaragua). The same DHS announcement promulgated the automatic EAD extension.

The chart below lists the expiration dates printed on the EADs that have been granted an extension:

2017 2018 2019
07/22/2017 01/05/2018 01/05/2019
11/02/2017 01/22/2018 04/02/2019
  03/09/2018 07/22/2019
  11/02/2018 09/09/2019

Employers should not reverify the I-9s for employees with these EADs until Jan. 3, 2020.

For more on employment authorization documents, click here.

LexBlog