On Aug. 28, 2019, U.S. Citizenship and Immigration Services (USCIS) issued new policy guidance “to address requirements for ‘residence’ in statutory provisions related to citizenship, and to rescind previous guidance regarding children of U.S. government employees and members of the U.S. armed forces employed or stationed outside the United States.” USCIS has updated its Policy Manual to clarify the distinction between residence and physical presence in the United States and to clarify that short visits to the United States do not establish residence as well as to state that children of U.S. government employees and U.S. armed forces members residing outside the United States are no longer considered to be “residing in the United States” for purposes of acquiring citizenship under INA 320. This policy will become effective Oct. 29, 2019. 

Continue Reading Friendly Fire: USCIS Deploys New Definition of ‘Residence’ in Statutory Provisions Related to Citizenship

USCIS’s Policy Memorandum on ‘Revised Interview Waiver Guidance for Form I-751, Petition to Remove Conditions on Residence” went into effect on Dec. 10, 2018. The memorandum fully replaces the June 24, 2005, “Revised Interview Waiver Criteria for Form I-751, Petition to Remove the Conditions on Residence.” These guidelines apply to I-751 cases filed as a joint petition or as a waiver of the joint filing requirement. Per the new memorandum, an officer may consider waiving an interview if they are satisfied that:

  • They can make a decision because the record contains sufficient evidence about the bona fides of the marriage (that the marriage was not entered into in order to evade U.S. immigration laws);
  • USCIS has previously interviewed the principal petitioner (for forms filed on or after Dec. 10, 2018);
  • There is no indication of fraud or misrepresentation in the Form I-751 or the supporting documentation; and
  • There are no complex facts or issues that require an interview to resolve.

For more on USCIS Policy Memorandums, click here.

The Department of Homeland Security announced on Aug. 28, 2017, that beginning on Oct. 1, USCIS will begin requiring in-person interviews at local District Offices for adjustment of status applications based on employment, as well as certain refugee/asylee relative petitions.

In the past, USCIS did not require an in-person interview adjustment of status applications based on employment, and only conducted these interviews on rare case-by-case bases.  The purpose of these interviews is to verify the information in the application and to determine the credibility of the individual seeking permanent residence. The current processing times for each service center processing Adjustment of Status applications based on employment are as follows:

The applications to adjust status will need to first be processed by USCIS, after which it will be sent to the local district office for an interview to be scheduled.  Due to the already backlogged timelines as indicated in the chart above, adding this extra step will further add to the processing times.  Please note that if the applicant and his or her dependents do file Adjustment of Status applications, they will receive work and travel authorization within 90-120 days of submission.

Greenberg Traurig is ready to assist with any queries related to this matter. Please subscribe to our blog for updates.

Applicants for certain Canadian immigration programs can look forward to a faster permanent residency process in the new year. Foreign nationals seeking permanent residence through the Federal Skilled Worker Program, the Federal Skilled Trades Program, the Canadian Experience Class, and parts of the Provincial Nominee Program should complete the Express Entry process in six months. The current process takes one to two years. Continue Reading Canada’s ‘Express Entry’ Permanent Residence Program Beginning in January 2015

U.S. Citizenship and Immigration Services (“USCIS”) has announced that there will be an adjustment to the filing fees for certain applications and petitions requesting an immigration benefit. The new fees will be effective on Oct. 2, 2020.  These fees have been adjusted to cover the full cost of providing adjudication and operating costs. Moreover, USCIS will increase the premium processing timeframe from 15 calendar days to 15 business days. The new proposed fees reflect some increases, but also some decreases in fees, as outlined below. Significant changes for the business immigration community include:

  1. I-129 H-1B petitions: Increase from $460 to $555
  2. I-129 L-1 petitions: Increase from $460 to $805
  3. I-129 O-1 petitions: Increase from $460 to $705
  4. I-129 TN petitions: Increase from $460 to $695
  5. I-140 petitions: Decrease from $700 to $555
  6. Adjustment of status applications: Decrease from $1140 to $1130
  7. I-539 applications: Increase from $370 to $390
  8. I-765 applications: Increase from $410 to $550 for non-DACA EADs
  9. Naturalization applications: Increase from $640 to $1160
Immigration Benefit Request Current Fee Final Fee Change ($) Percentage Change
I-90 Application to Replace Permanent Resident Card (online filing) $455 $405 -$50 -11 percent
I-90 Application to Replace Permanent Resident Card (paper filing)

 

$455

 

$415

 

-$40

 

-9 percent

I-102 Application for Replacement/Initial Nonimmigrant Arrival-Departure Document

 

$445

 

$485

 

$40

 

9 percent

I-129 Petition for a Nonimmigrant worker $460 N/A N/A N/A
I-129CW, I-129E&TN, and I-129MISC $460 $695 $235 51 percent
I-129H1 $460 $555 $95 21 percent
I-129H2A – Named Beneficiaries $460 $850 $390 85 percent
I-129H2B – Named Beneficiaries $460 $715 $255 55 percent
I-129L $460 $805 $345 75 percent
I-129O $460 $705 $245 53 percent
I-129H2A – Unnamed Beneficiaries $460 $415 -$45 -10 percent
I-129H2B – Unnamed Beneficiaries $460 $385 -$75 -16 percent
I-129F Petition for Alien Fiancé(e) $535 $510 -$25 -5 percent
I-130 Petition for Alien Relative (online filing) $535 $550 $15 3 percent
I-130 Petition for Alien Relative (paper filing) $535 $560 $25 5 percent
I-131 Application for Travel Document $575 $590 $15 3 percent
I-131 Refugee Travel Document for an individual age 16 or older $135 $145 $10 7 percent
I-131 Refugee Travel Document for a child under the age of 16 $105 $115 $10 10 percent
I-131A Application for Travel Document (Carrier Documentation) $575 $1,010 $435 76 percent
I-140 Immigrant Petition for Alien Worker $700 $555 -$145 -21 percent
I-191 Application for Relief Under Former Section 212(c) of the Immigration and Nationality Act (INA)

 

$930

 

$790

 

-$140

 

-15 percent

I-192 Application for Advance Permission to Enter as Nonimmigrant (CBP)4 $585

 

$1,400

$815 139 percent
I-192 Application for Advance Permission to Enter as Nonimmigrant (USCIS) $930 $470 51 percent
I-193 Application for Waiver of Passport and/or Visa $585 $2,790 $2,205 377 percent
I-212 Application for Permission to Reapply for Admission into the U.S. After Deportation or Removal

 

$930

 

$1,050

 

$120

 

13 percent

I-290B Notice of Appeal or Motion $675 $700 $25 4 percent
I-360 Petition for Amerasian, Widow(er), or Special Immigrant $435 $450 $15 3 percent
I-485 Application to Register Permanent Residence $1,140 $1,130 -$10 -1 percent
or Adjust Status5 $750 $380 51 percent
I-526 Immigrant Petition by Alien Investor $3,675 $4,010 $335 9 percent
I-539 Application to Extend/Change Nonimmigrant Status (online filing) $370 $390 $20 5 percent
I-539 Application to Extend/Change Nonimmigrant Status (paper filing) $370 $400 $30 8 percent
I-589 Application for Asylum and for Withholding of Removal $0 $50 $50 N/A
I-600/600A Adoption Petitions and Applications $775 $805 $30 4 percent
I-600A Supplement 3 Request for Action on Approved Form I-600A N/A $400 N/A N/A
I-601 Application for Waiver of Ground of Excludability $930 $1,010 $80 9 percent
I-601A Provisional Unlawful Presence Waiver $630 $960 $330 52 percent
I-612 Application for Waiver of the Foreign Residence Requirement (Under Section 212(e) of the INA, as Amended)

 

$930

 

$515

 

-$415

 

-45 percent

I-687 Application for Status as a Temporary Resident $1,130 $1,130 $0 0 percent
I-690 Application for Waiver of Grounds of Inadmissibility $715 $765 $50 7 percent
I-694 Notice of Appeal of Decision- $890 $715 -$175 -20 percent
I-698 Application to Adjust Status from Temporary to Permanent Resident (Under Section 245A of the INA)

 

$1,670

 

$1,615

 

-$55

 

-3 percent

I-751 Petition to Remove Conditions on Residence $595 $760 $165 28 percent
I-765 Application for Employment Authorization (Non-DACA) $410 $550 $140 34 percent
I-765 Application for Employment Authorization (DACA only) 6 $410 $410 $0 0 percent
I-800/800A Adoption Petitions and Applications $775 $805 $30 4 percent
I-800A Supplement 3 Request for Action on Approved Form I-800A $385 $400 $15 4 percent
I-817 Application for Family Unity Benefits $600 $590 -$10 -2 percent
I-824 Application for Action on an Approved Application or Petition $465 $495 $30 6 percent
I-829 Petition by Investor to Remove Conditions $3,750 $3,900 $150 4 percent
I-881 Application for Suspension of Deportation or $285 $1,810 $1,525 535 percent
Special Rule Cancellation of Removal7 $570 $1,240 218 percent
I-910 Application for Civil Surgeon Designation $785 $635 -$150 -19 percent
I-924 Application For Regional Center Designation Under the Immigrant Investor Program

 

$17,795

 

$17,795

 

$0

 

0 percent

I-924A Annual Certification of Regional Center $3,035 $4,465 $1,430 47 percent
I-929 Petition for Qualifying Family Member of a U-1 Nonimmigrant $230 $1,485 $1,255 546 percent
N-300 Application to File Declaration of Intention $270 $1,305 $1,035 383 percent
N-336 Request for Hearing on a Decision in Naturalization Proceedings (online filing)

 

$700

 

$1,725

 

$1,025

 

146 percent

N-336 Request for Hearing on a Decision in Naturalization Proceedings (paper filing) $700 $1,735 $1,035 148 percent
N-400 Application for Naturalization (online filing) $640 $1,160 $520 81 percent

 

N-400 Application for Naturalization (paper filing)8

$640

 

$1,170

$530 83 percent
$320 $850 266 percent
N-470 Application to Preserve Residence for Naturalization Purposes $355 $1,585 $1,230 346 percent
N-565 Application for Replacement Naturalization/Citizenship Document (online filing)

 

$555

 

$535

 

-$20

 

-4 percent

N-565 Application for Replacement Naturalization/Citizenship Document (paper filing) $555 $545 -$10 -2 percent
N-600 Application for Certificate of Citizenship (online filing) $1,170 $990 -$180 -15 percent
N-600 Application for Certificate of Citizenship (paper filing) $1,170 $1,000 -$170 -15 percent
N-600K Application for Citizenship and Issuance of Certificate (online filing) $1,170 $935 -$235 -20 percent
N-600K Application for Citizenship and Issuance of Certificate (paper filing) $1,170 $945 -$225 -19 percent
USCIS Immigrant Fee $220 $190 -$30 -14 percent
Biometric Services (Non-DACA)9 $85 $30 -$55 -65 percent
Biometric Services (DACA only)10 $85 $85 $0 0 percent
G-1041 Genealogy Index Search Request (online filing) $65 $160 $95 146 percent
G-1041 Genealogy Index Search Request (paper filing) $65 $170 $105 162 percent
G-1041A Genealogy Records Request (online filing) $65 $255 $190 292 percent
G-1041A Genealogy Records Request (paper filing) $65 $265 $200 308 percent

 

On June 10, 2020, the United States District Court for the Southern District of Florida denied a major multinational manufacturing corporation’s (“corporation” or “defendant”) motion for summary judgment to dismiss a case challenging its immigration hiring policy. In doing so, the court affirmed that all work-authorized immigrants are protected by 42 U.S.C. 1981’s prohibition on alienage discrimination. The court found that employment application questions which seek to exclude certain “subcategories” of work-authorized foreign nationals, such as Deferred Action for Childhood Arrivals (DACA) recipients or holders of certain visa types, may be unlawful.

In 2014, defendant denied plaintiff/applicant’s bid for an internship with their company based on a policy to automatically reject, at the first step of the application process, all non-U.S. citizen applicants, unless they are permanent residents, asylees, or refugees. Specifically, the internship application requested the following information:

  1. Are you currently a U.S. citizen OR national, OR an alien lawfully admitted for permanent residence, OR a refugee, OR an individual granted asylum, OR admitted for residence as an applicant under the 1986 immigration law?
  2. Are you an individual who is now completing the permanent residency process but has not yet been granted permanent residency?
  3. Will you now, or in the future, require sponsorship for U.S. employment visa status (e.g. H1B or permanent residency status)?

Applicants who answered “no” to the first question, or “yes” to the second or third, were automatically rejected. At the time of filing, applicant was lawfully present in the United States under DACA, and had separate employment authorization with an employment authorization document (EAD) as is required to qualify for the program. However, his application was automatically denied because he was neither citizen, green card holder, asylee, nor refugee (question 1).

The court held that by asking whether an applicant was a U.S. citizen and broadly denying all non-citizen applicants that did not fall into its narrowly prescribed exceptions, the corporation facially discriminated against non-citizens and subjected them to less favorable treatment. Corporation argued that these questions sort applicants by “immigration status” rather than alienage, as the company hired green card holders, asylees, and refugees under the same policy.1 The court rejected this distinction, as the Supreme Court has made clear that a policy can be discriminatory against a protected class (in this case, non-citizens), even if not all members of that class are subject to adverse treatment. The court likewise rejected corporation’s rationale that recruiting interns unable to work in the United States long-term, or who are subject to immediate deportation, is incompatible with the goal of grooming interns for long-term employment with the company.2 The court also found that refusal to hire beneficiaries of DACA, who are required to maintain work authorization, unlawfully undermines the program’s intent. Finally, the court rejected corporation’s defenses under the equal protection act and the “same decision” doctrine.

Corporation raised the issue that the anti-discrimination provisions of the Immigration and Nationality Act (INA) specifically protect permanent residents, refugees, and asylees from “immigration status’ discrimination. While the court did not reach this issue in its decision, it did note that this provision (the Immigration Reform and Control Act of 1986) also expressly excludes certain subclasses of immigrants from protection, but that DACA recipients are not among those excluded. Corporation also cites the 2016 Department of Justice Office of Special Counsel letter that suggests employers may filter applicants based on whether they will require visa sponsorship. The court held that its decision is compatible with the OSC letter, on the basis that the letter only addresses whether the employer is required to incur the financial expenses of sponsorship, not whether they may specifically use green card, asylee, or refugee status as a filtering mechanism. Ultimately, as provided in the OSC guidance, employers must avoid asking detailed questions about immigration or citizenship status, to avoid confusion which may deter other applicants and act as a de facto candidate filter.

Additional Department of Justice guidance on the INA advises employers to treat citizens, non-citizen nationals, asylees, green card holders, and refugees consistently in recruitment or hiring, “without regard to their citizenship status.Following the decision in the instant case, employers must extend their scrutiny of hiring policies beyond “citizenship” and avoid language which targets specific non-immigrant visa types, or work authorization statuses through programs such as DACA. The Department of Justice advises employers to avoid job postings that including limiting language such as “only U.S. citizens,” “H-1Bs only,” “H-1Bs and OPT preferred,” and “only U.S. citizens or Green Card Holders.” Employers must also be advised that the above guidance likewise applies to I-9 compliance. The Department of Justice also advises against requiring certain documents which exclude applicants based on their citizenship or visa classification, such as “must present U.S. Birth Certificate.”


1 “Alienage” refers to a lack of United States citizenship.

2 The Supreme Court has long held that “whether an employer practice involves disparate treatment through explicit facial discrimination does not depend on why the employer discriminates but rather on the explicit terms of the discrimination.” [emphasis added]. United Automobile Workers v. Johnson Controls, Inc., 499 U.S. 187 (1991).

COVID-19 has given rise to business complications related to closing physical office spaces, furloughing employees, and terminating employees, to name a few. The Department of Homeland Security, the Department of Labor, and the Department of State have worked to address the resulting immigration complications to support the needs of U.S. businesses and foreign nationals during this unprecedented time.

Because the pandemic has affected foreign-born workers and their families, on April 17 a group of business immigration advocates sent a letter to the Secretary of the U.S. Department of State, the Acting Secretary of the U.S. Department of Homeland Security, and the Senior Official Performing the Duties of the Director of USCIS, calling for the following actions and stating the basis for each request:

  1. Automatically extend expiration dates and deadlines to renew statuses until at least Sept. 10, 2020. – With in-person services suspended, biometrics cannot be taken for a number of applications that require them, and interviews cannot be conducted, resulting in a delay of adjudication. In addition, work authorization validity dates may lapse with the suspension of premium processing for a number of non-immigrant petitions, thus not allowing employees to onboard or extend statuses in a timely manner.
  2. Forgive unlawful presence accrued by furloughed workers and those who stay beyond their statuses; also forgive extended absences for lawful permanent residences. – With many travel restrictions in place, not just for the United States, but also for other countries worldwide, people may not move in and out of the U.S. and other countries as easily. This may result in an accrual of unlawful presence for those in the United States who must leave; statuses may be expired, work may be terminated and they are no longer working pursuant to their visa, or others may be staying longer than they are normally allowed because of the inability to travel. On the other hand, lawful permanent residents residing abroad are now forced to stay abroad longer than anticipated; this may lead DHS to deem these individuals to have abandoned their LPR intent.
  3. Add flexibility to continue processing essential worker visas, to include health care workers and farmworkers – Delayed visa processing and closures of consular posts means that temporary workers set to enter the U.S. to work are now unable to do so.  The hospital and agricultural systems in the U.S. rely on these workers. These organizations ask that USCIS take over the processing so that these workers can come into the country to help relieve the current workforce.

This letter has been signed by:

Americans for Prosperity

AmericanHort

American Immigration Council

American Immigration Lawyers Association

Association for Health Care Agencies

Council for Christian Colleges & Universities

Essential Worker Immigration Coalition

Hispanic Leadership Fund

Idaho Dairymen’s Association

Information Technology Industry Council

LeadingAge

The Libre Initiative

National Association of Evangelicals

NALEO Educational Fund

National Immigration Forum

New American Economy

Niskanen Center

President’s Alliance on Higher Education and Immigration

TechNet

Unite-LA

The United States is now under a national emergency due to the COVID-19 epidemic. While USCIS remains open and is accepting all mail at the time of writing, it has canceled all in-person appointments, including interviews, biometrics and InfoPass appointments, through May 3, 2020. All appointments will be automatically rescheduled by USCIS when possible.

While all appointments are canceled through May 3, 2020, the closures may continue beyond this date. Track USCIS closures here.

Those with USCIS in-person appointments scheduled for March, April and May 2020 may check the website for closures before attending the appointment. If the location is not closed, but you cannot attend the appointment because you are sick or cannot travel back to the U.S., you may reschedule the appointment with USCIS using the instructions found on the notice.

Green card holders who are abroad and cannot currently travel back to the United States due to the COVID-19 epidemic may consider keeping evidence of U.S. ties for re-entry. As a green card holder, absences of more than 180 days to one year may create a presumption that you have abandoned your permanent resident status. This could lead to questioning at the border upon reentry to the United States. Therefore, you can carry evidence with you that you could not travel back to the United States due to the COVID-19 epidemic, as well as evidence that you have maintained ties to the United States, for example:

  • A residence in the U.S.  This can be through the ownership of a home or renting an apartment.
  • Bank accounts, credit cards and investments in the U.S. to show financial ties.
  • Insurance in the U.S., including home, health, and life insurance.
  • File U.S. tax returns.
  • Utilities in the permanent resident’s name also helps, as does a driver’s license and car ownership.

Be prepared for questioning at the border, and be prepared to explain why you could not travel back to the U.S. in a timely manner. See the USCIS website page on maintaining your permanent resident status.

After returning to the United States, those permanent residents who anticipate having to stay abroad for extended periods of an aggregate of 180 days or more may consider applying for a reentry permit. An application for a reentry permit only can be done while physically present in the U.S., as reentry permit applications cannot be filed while abroad.

The Public Charge Inadmissibility Final Rule was issued in August 2019 and was to go into effect October 2019, when a preliminary injunction with national scope was granted that prevented the Department of Homeland Security from implementing the rule. On Jan. 27, 2020, the Supreme Court stayed the national injunction, and DHS may now implement the rule, except in the state of Illinois. Continue Reading USCIS Revises Forms in Response to Public Charge Inadmissibility Final Rule

On Jan. 29, 2020, USCIS announced that it would be making a significant change to the processing of I-526 Petitions, commonly referred to as EB-5 Petitions. USCIS previously had a policy to adjudicate EB-5 Petitions on a “first-in, first-out” basis. This meant that USCIS was to review and decide EB-5 Petitions based solely on the date the petition was filed with USCIS. Today, USCIS announced that it would change this policy and decide EB-5 Petitions using the “visa availability” approach.

What is the “Visa Availability” approach?

The “visa availability” approach outlined by USCIS would prioritize EB-5 Petitions for adjudication based on whether a visa number is available to the investor. This ties the timing of the decision on the EB-5 petition to whether the investor is subject to visa retrogression based on their country of birth. As a reminder, the employment-based fifth preference category “EB-5” is allotted approximately 10,000 immigrant visas annually. This quota includes principal applicants, as well as spouses and dependent children under 21 years of age. No one country can exceed more than seven percent of the total EB-5 visas available in each fiscal year.

Continue Reading USCIS Announces Significant Change to EB-5 Adjudications Processing