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Maximillian L. Del Rey

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In likely its last “midnight rule,” the Department of Homeland Security (DHS) plans to publish a more limited version of its Strengthening the H-1B Nonimmigrant Visa Classification Final Rule (the “Final Rule”). With the twin goals of aligning the H-1B regulations with the Immigration and Nationality Act and improving the integrity of the H-1B program, the Final Rule targets employers who assign H-1B workers to third-party worksites, requiring those employers to establish a valid “employer-employee” relationship. …
Continue Reading Trump Administration Poised to Publish a More Limited H-1B Rule Before Inauguration Day

This afternoon, the US District Court for the Northern District of California set aside two rules issued by the Trump administration pertaining to employer sponsorship of H-1B workers, both of which bypassed notice-and-comment rulemaking as required by the Administrative Procedures Act (“APA”):

  • The Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens

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COVID-19 developments, including the White House ban on green card applications made at US consulates abroad, economic changes, and reduced cross-border travel, reduced the volume of applications for immigrant visas in recent months, creating excess supply in employment-based (EB) immigrant quotas.

As a result, the US Department of State (DOS) adjusted the EB quotas to allow certain individuals who previously faced lengthy waits of up to multiple years to file for adjustment of status (AOS) to US permanent residency in the month of October 2020.

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Continue Reading Executive Summary: The Gate to US Permanent Residency Opens in October 2020

USCIS announced last week the implementation of adjustments that will slow the processing of Premium Processing Service cases, as well as increase filing fees for the majority of requests as part of a published Final Rule.

As covered in our previous blog post, a proposed Final Rule was reopened in January and the comment period extended to February 10.  On May 27, 2020, the USCIS Fee Rule went to the Office of Management and Budget’s Office of Information & Regulatory Affairs (OIRA).  OIRA completed its review on July 22, 2020, and the Final Rule was published on July 31, 2020.

In addition to lengthening processing for the Premium Processing Service and adjusting fees for petitions filed with USCIS, the Final Rule removes certain fee exemptions, changes fee waiver requirements, modifies intercountry adoption processing, and makes certain adjustments to filing requirements for nonimmigrant workers.

The Final Rule, including the adjusted fee amounts, is effective October 2, 2020.  Any application, petition, or request postmarked on or after that date must include the new fees under the Final Rule.

Adjustment to Premium Processing Timelines

As part of the Final Rule, USCIS has adjusted the processing time for its Premium Processing Service, which provides accelerated processing of some visa submissions for an additional filing fee ($1,440).  The Final Rule will increase the processing time from fifteen (15) calendar days to fifteen (15) business days.  This change will increase processing times associated with the Premium Processing Service, which will provide less flexibility to employers and lengthen the time required to secure approvals of work authorization.

Changes to Filing Fees for Nonimmigrant and Immigrant Petitions

The Final Rule adjusts the USCIS fee schedule to “provide for recovery of the estimated full cost of immigration adjudication and naturalization services,” according to the language in the published Final Rule.  DHS is adjusting USCIS fees by a weighted average increase of 20 percent, adding new fees for certain immigration benefit requests, establishing multiple fees for nonimmigrant worker petitions, and limiting the number of beneficiaries for certain forms.

Of particular note, USCIS has implemented varying filing fees for Form I-129, petitions with USCIS for H, L, O, E, and TN visas.  Under the Final Rule, each non-immigrant category will be subject to a separate fee rather than the current fee of $460.

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Continue Reading USCIS Lengthens Premium Processing Timeline and Implements Fee Increases, Among Other Adjustments

Aerial over the University of North Carolina in the Spring

In a media release issued on July 6, 2020, Immigration and Customs Enforcement (“ICE”) announced a rollback of the protections it afforded to foreign students in light of the COVID-19 outbreak. The July 6 release announced that foreign students will no longer be eligible for F-1 visas or to remain in the United States to participate in online-only courses of study. Coming only six weeks before the start of the fall semester, the guidance has raised serious concerns for premier US universities, for which foreign students provide one of the greatest sources of revenue, already leading Harvard and MIT to file suit challenging the sudden reversal in posture only six weeks before the start of the fall semester. Other major universities, accompanied by business groups and a number of state attorneys general, are considering challenges to the new policy.

The policy change is expected to affect an estimated more than 1 million student visa holders in the United States, as well as others presently outside the United States who have been admitted for the fall semester.  Students currently in the United States and planning to attend schools that have elected to offer online-only classes in the fall 2020 semester “must depart the country or take other measures, such as transferring to a school offering in-person instruction to remain in lawful status” per the release.

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Continue Reading New ICE Directive Threatens Status of More Than One Million Foreign Students and Prompts Immediate Lawsuit

The administration announced expansion of the controversial travel ban to include six more countries, following an almost year-long review by the Department of Homeland Security (“DHS”).  Restrictions on entering the United States will apply to certain travelers and migrants from Nigeria, Africa’s most populous country, as well as Eritrea, Kyrgyzstan, Myanmar, Sudan, and Tanzania, ,…

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A legal battle over the future of hundreds of thousands of individuals presently in the United States based upon Temporary Protected Status (“TPS”) continues following the Trump administration’s steps to end TPS for certain individuals.

What is TPS?

The United States provides TPS to nationals of certain countries based upon conditions in the country that temporarily prevent the country’s nationals from returning safely, such as ongoing armed conflict, an environmental disaster, or other extraordinary and temporary conditions. At present, 10 countries are designated for TPS: El Salvador, Haiti, Honduras, Nepal, Nicaragua, Somalia, Sudan, South Sudan, Syria, and Yemen. A May 2018 report from US Citizenship and Immigration Services noted that 437,402 individuals held TPS status as of December 31, 2017.…
Continue Reading Legal Battle Over Temporary Protected Status Continues

Effective May 1, 2019, the US Embassy in Tel Aviv will begin accepting E-2 visa applications filed by Israeli citizens.  This long-awaited announcement comes close to seven years after President Obama signed legislation in 2012 implementing a bilateral investment treaty with Israel on the condition that Israel provide reciprocal immigration status for American investors.  The…