On June 9, U.S. Citizenship and Immigration Services (USCIS) updated its policy guidance on the expedited treatment of pending petitions and applications. The new updates, now included in the USCIS Policy Manual, restore the ability for IRS-designated nonprofit organizations to request expedited service, when the request “is in furtherance of the cultural and
On June 7, 2021, the U.S. Supreme Court ruled that a recipient of Temporary Protected Status (TSP) who entered the United States unlawfully is not eligible under the law to adjust status to lawful permanent residence (LPR) “merely by dint of his TPS.” Sanchez v. Mayorkas, 593 U. S. ____ (2021). Eligibility for…
On Tuesday, March 30, 2021, US Citizenship and Immigration Services (USCIS) announced that it received a sufficient number of H-1B registrations through its new electronic registration system needed to reach the annual cap, which includes registrations for both the 65,000 regular cap, as well as the 20,000 allotted US advanced degree exemption (or “master’s cap”).
USCIS states in its announcement that the lottery selection process is complete and that the Agency has notified all prospective petitioners if their registrations have been selected, meaning employers are eligible to file a FY2022 H-1B cap-subject petition on behalf of the employees for whom selection notices have been assigned.
As anticipated and indicated in our “heat map” of immigration actions during the first 100 days in office, the Biden administration has withdrawn a rule proposed by the Trump administration that would have eliminated work authorization for the H-4 spouses of certain H-1B visa holders. The decision to withdraw the rule will allow the H-4 dependent spouse of an H-1B nonimmigrant who:
- Is the principal beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker; or
- Has been granted an extension of their H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 as amended by the 21st Century Department of Justice Appropriations Authorization Act (AC21)
to continue to file Form I-765, Application for Employment Authorization for an Employment Authorization Document (EAD). Under AC21 § 106, an H-1B nonimmigrant can receive H-1B status beyond the six-year maximum, in one-year increments, if 365 days or more have passed since either an application for Alien Labor Certification (Form ETA 750A-B or ETA 9089) or a petition for immigrant worker (Form I-140) has been filed on the nonimmigrant’s behalf. …
Continue Reading H-4 Dependent Spouses Breathing a Little Easier
United States Citizenship and Immigration Service (USCIS) announced today that, starting this month, the agency will no longer use the sticker issued to lawful permanent residents to extend the validity of their Form I-551, Permanent Resident Card, or “green card.” Instead, the agency will issue a revised Form I-797, Notice of Action, a change from…
A California federal court granted class certification to businesses accusing the US government of unlawfully rejecting market research analysts’ H-1B visa petitions, certifying a nationwide class of employers who say US Citizenship and Immigration Services systematically misreads the US Department of Labor’s definition of a market research analyst to mean that the position doesn’t qualify as a specialty occupation. Due to the pendency of a newly announced USCIS interim final rule narrowing the definition of a “specialty occupation” when evaluating H-1B visa applications to those with narrowed degree requirements, U.S. Magistrate Judge Susan van Keulen limited to companies that file visa petitions between January 1, 2019, and December 6, 2020, as the rule is slated to take effect December 7, 2020. If the interim final rule, which is the subject of several lawsuits, is enjoined, plaintiffs have indicated they intend to request expansion of the class to encompass petitions filed as of December 7.
The class action represents the latest challenge to attempts by USCIS to narrow the definition of specialty occupation to exclude blanket occupations, where, as in the case of market research analysts, the government indicates that a degree in a narrow subspecialty is not “normally” required by employers. …
Continue Reading Newly-Certified Class Represents Latest Challenge to USCIS’s Blanket Repudiation of Occupation As H-1B Specialty
US Citizenship & Immigration Services (USCIS), the agency within Homeland Security responsible for adjudicating applications and petitions seeking immigration and naturalization benefits, announced on Tuesday, August 25, 2020, that it will not engage in en masse staffing furloughs before the close of the fiscal year on September 30, 2020. As previously reported on Mayer Brown’s…
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.
USCIS Furloughs Postponed and Possibly Avoided
In June 2020, US Citizenship and Immigration Services (USCIS) served notice on The American Federation of Government Employees (AFGE), the union representing the agency’s 13,400 fee-based employees, that absent approval by Congress of $1.2 billion requested as part of the pending stimulus bill to make up for a precipitous…
Some 70% of the 20,000 employees of US Citizenship & Immigration Services, the agency within Homeland Security that adjudicates visa-related benefits for all foreign workers, could face furloughs starting as early as August 3, 2020, unless Congress provides $1.2 billion in emergency funding. This budget shortfall was caused by a dramatic decrease in the number…