What's New in the World of US Immigration?

USCIS Fee Hike Could Come Imminently!

AILA (American Immigration Lawyers Association) has alerted members that the USCIS Final Fee Rule could be published as a final rule within the next few weeks.

The White House's Office of Information and Regulatory Affairs (OIRA) received the final rule containing the new fees on Monday, January 8, 2024. Although OIRA typically has up to 90 days to complete its review, the Administration may prioritize finalizing this rule as it has been eight years since the last fee increase. USCIS has previously stated that a significant increase in immigration fees is necessary to more fully recover operating costs and better manage its workload. Based on past fee rules, once it is published in the Federal Register, it will likely take effect at least 60 days later.

As background, on January 4, 2023, USCIS issued a proposed rule on adjusting the fee schedule, which included increasing application fees by a 40% overall weighted average increase.

When the proposed rule was released, AILA and the American Immigration Council submitted a joint comment highlighting that employers would be required to pay more than:

  • 70% more for H-1B petitions
  • 129% more for O-1 petitions
  • 201% more for L-1 petitions
  • a $600 surcharge for Forms 1-129 and I-140
  • Over 2,000% more for the H-1B electronic registration system fee
  • 130% more for AOS, AP and EAD applications when filed together.

AILA will publish additional information as it becomes available.

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ALERT: USCIS Fee Hike Could Come within the Next Few Weeks

American Immigration Lawyers Association (AILA) has posted an ALERT to all of its members warning that USCIS could issue a new fee hike very soon. The alert states as follows:

"AILA alerts members that the USCIS Final Fee Rule could be published as a final rule within the next few weeks. The White House's Office of Information and Regulatory Affairs (OIRA) received the final rule containing the new fees on Monday, January 8, 2024. Although OIRA typically has up to 90 days to complete its review, the Administration may prioritize finalizing this rule as it has been eight years since the last fee increase. USCIS has previously stated that a significant increase in immigration fees is necessary to more fully recover operating costs and better manage its workload. Based on past fee rules, once it is published in the Federal Register, it will likely take effect at least 60 days later.

As background, on January 4, 2023, USCIS issued a proposed rule on adjusting the fee schedule, which included increasing application fees by a 40% overall weighted average increase.

When the proposed rule was released, AILA and the American Immigration Council submitted a joint comment highlighting that employers would be required to pay more than:

  • 70% more for H-1B petitions
  • 129% more for O-1 petitions
  • 201% more for L-1 petitions
  • a $600 surcharge for Forms 1-129 and I-140
  • Over 2,000% more for the H-1B electronic registration system fee
  • 130% more for AOS, AP and EAD applications when filed together.

AILA will publish additional information as it becomes available."

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USCIS Reaches 2024 H-1B Masters Cap

The H-1B Masters Cap has been reached! Yesterday, USCIS officially notified the H-1B community that a sufficient number of H-1B Masters Cap petitions have been submitted to reach the congressionally mandated 65,000 H-1B visa regular cap and the 20,000 Advanced Degree Cap.

Petitioners who had registered their potential employees for the H-1B lottery will begin to receive non-selection notices through their online accounts over the next few days.

In yesterday's communication, USCIS explained that the online status for properly submitted registrations
that were not selected will who one of the following:

 Not Selected: Not selected – not eligible to file an H-1B cap petition based on this registration.

USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed for
current H-1B workers who have been counted previously against the cap, and who still retain their cap
number, are exempt from the FY 2024 H-1B cap. USCIS will continue to accept and process petitions filed to:

 Extend the amount of time a current H-1B worker may remain in the United States;

 Change the terms of employment for current H-1B workers;

 Allow current H-1B workers to change employers; and

 Allow current H-1B workers to work concurrently in additional H-1B positions.

U.S. businesses use the H-1B program to employ foreign workers in specialty occupations. H1B petitioners are strongly urged to subscribe to the USCIS H-1B cap season email updates by visiting the H-1B Cap Season webpage on the official USCIS website.

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Some states spurn migrants. The Rust Belt wants them.

From the Washington Post.

PITTSBURGH — This city jumped into action multiple times recently amid rumors that buses of migrants would be arriving here from the U.S.-Mexico border. The emergency operations center and Red Cross were activated, temporary camps for men and women and children were identified, and interpreters from throughout Southwestern Pennsylvania were put on standby.

The buses never arrived, a setback for Pittsburgh-area leaders who are out to prove that just about anyone is welcome in their neighborhoods.
“We are not here to reject any immigration. As a matter of fact, we want to make this the most safe, welcoming, thriving place in America, and you can’t do that without immigration,” Pittsburgh Mayor Ed Gainey (D) said in an interview, adding that he does not make distinctions on the basis of someone’s immigration status or how the person entered the country. “Why wouldn’t we want them?”

The reaction of Gainey, and of many other residents in these hilly, ethnically distinct neighborhoods built by the nation’s initial waves of immigrants, contrasts sharply with the stance being taken by leaders in New York and other East Coast cities as the rift over where, how quickly and at whose cost tens of thousands of migrants should resettle in the United States.

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AILA's Guide to Delayed Cases

Immigration Lawyers need to be prepared for the inevitability of a USCIS delay so that when the issue arises, there is a plan of action in place. While the large majority of lawyer-filed cases are approved within expected timeframes, USCIS delays do happen and any delay is a delay too many.

The American Immigration Lawyer's Association (AILA) has just released an information sheet addressing these delays, the primary audience being those who have filed without lawyer assistance and find themselves waiting months and months with no work from Immigration.

As always, my clients can  reach out to me anytime for a case checkin, and if the case is outside of normal processing time, or if there is an emergency, I will always request an expedite. Once a case is over 30 days beyond the expected case processing time, it is appropriate to call USCIS for an expedite request, and to aggressively stay on top of the requests every 30 days. If I find there is no response after 2 requests, we can get creative with an alternate expedite strategy to encourage the USCIS Officer along, which we discuss on a case by case basis if the situation arises.

More information from AILA below:




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USCIS Launches New Online Form to Request In-Person Appointments at Local Field Offices

U.S. Citizenship and Immigration Services has finally launched a new online form for individuals and their attorneys
to request an in-person appointment at their local field office without having to call the USCIS Contact Center.

This online appointment request form allows individuals or their legal representatives to request an in-person
appointment at a local Field Office only
for:
 
  • ADIT stamps (proof of permanent residence status),

  • Emergency Advance Parole (emergency travel document for example if you have a green card pending),

  • Immigration Judge Grants, 

  • and other categories related to asylum. 

USCIS warns that this is not a self-scheduling tool for appointments across the board; individuals
cannot schedule their own appointments with USCIS.
For example, this tool cannot be used to checkin on a 
case that is taking too long, or to request an interview for the final adjudication of a pending case.

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EAD Expedites in Certain Compelling Circumstances

U.S. Citizenship and Immigration Services today released policy guidance on the eligibility criteria for initial and renewal applications for employment authorization documents (EADs) in compelling circumstances based on existing regulatory requirements at 8 CFR 204.5(p).

For an applicant to be eligible for an initial EAD based on compelling circumstances, they must meet the following eligibility requirements:

  • The principal applicant is the principal beneficiary of an approved Form I-140, Immigrant Petition for Alien Workers, in either the 1st, 2nd, or 3rd employment-based preference category;
  • The principal applicant is in valid E-3, H-1B, H-1B1, O-1, or L-1 nonimmigrant status or authorized grace period when they file the Form I-765, Application for Employment Authorization;
  • The principal applicant has not filed an adjustment of status application;An immigrant visa is not available to the principal applicant based on the applicant’s priority date according to the relevant Final Action Date in the U.S. Department of State’s Visa Bulletin in effect when they file Form I-765;
  • The applicant and their dependents provide biometrics as required;
  • The applicant and their dependents have not been convicted of a felony or two or more misdemeanors; andUSCIS determines, as a matter of discretion, that the principal applicant demonstrates compelling circumstances that justify the issuance of employment authorization.

The guidance covers compelling circumstances for principal applicants and their dependents and provides a non-exhaustive list of situations that could lead to a finding that compelling circumstances exist, including serious illness and disability, employer dispute or retaliation, other substantial harm to the applicant, or significant disruption to the employer.

The guidance also provides details on evidence an applicant could submit to demonstrate one of these compelling circumstances. For example, a principal applicant with an approved immigrant visa petition in an oversubscribed visa category or chargeability area, who has lived in the United States for a significant amount of time, could submit evidence such as school or higher education enrollment records, mortgage records, or long-term lease records to support a potential finding of compelling circumstances. Compelling circumstances could include, if, due to job loss, the family may otherwise be forced to sell their home for a loss, pull their children out of school, and relocate to their home country.

For more information about these compelling circumstances EADs, please see the policy alert. Please also see our resource on Options for Nonimmigrant Workers Following Termination of Employment, for more evidence on options for maintaining a period of authorized stay in the United States. Visit the Policy Manual Feedback page to provide feedback on this update.

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New Procedure for Obtaining ADIT Stamps - By Mail for Certain LPR's

ILA Doc. No. 23040601 | Dated April 6, 2023

On March 16, 2023, USCIS announced a new procedure to obtain ADIT stamps, which constitute temporary evidence of permanent residence, typically issued while Form I-90, I-751, or N-400 applications are pending. This new procedure is due to USCIS delays in processing these applications. Please see Practice Pointer: When Is It Necessary to Request an ADIT Stamp? for an explanation of ADIT stamps and when they are needed.

Under the prior procedure, residents were required to call the USCIS Contact Center, request an InfoPass appointment, wait for that appointment to be scheduled, and then attend the appointment at the local USCIS Field Office to obtain the ADIT stamp in their passport. Due to delays at the Contact Center and limited InfoPass appointment availability, many residents were not able to get ADIT stamps in a timely manner.

Under the new procedure, USCIS will mail temporary evidence of permanent residence to those who request it. In order to make a request, residents must follow these steps:

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ICE's New Directive Toward Noncitizen Parents of Minors

In our communities, ICE often encounters people who are parents of minor children or who may be the legal guardians of a child or an incapacitated adult. Last summer, the Biden administration released a “policy directive” or instructions for ICE officers on how to handle these situations. The instructions include things ICE officers must do when they arrest a parent or legal guardian. Many of these instructions are about who will take care of minor children or incapacitated adults if ICE separates them from their parents or legal guardians. The
instructions put the responsibility on ICE to make sure that they do not abuse the “fundamental interests” (i.e., rights) of parents, legal guardians, and their minor child(ren) or incapacitated
adult(s) for whom they are legally responsible.

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H-1B Registration Fact Sheet for Employers

H-1B season is upon us! If you have an employee you would like to sponsor, now is the time to start planning. For your convenience, we are distributing the below fact sheet through AILA. Please reach out for any questions via "Schedule a Consultation."  

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Redesign of Green Cards and Employment Authorization Documents (EADs)

WASHINGTON — U.S. Citizenship and Immigration Services (USCIS) announced today new designs to improve security of Permanent Resident Cards (also known as Green Cards) and Employment Authorization Documents (EADs). USCIS will begin issuing the redesigned cards on Jan. 30, 2023.

The new Green Card and EAD designs contain state-of-the-art technology that continue to safeguard national security and improve service for our customers. Changes include:

  • - improved detailed artwork; 

  • - tactile printing that is better integrated with the artwork; 

  • - enhanced optically variable ink; 

  • - highly secure holographic images on the front and back of the cards; 

  • - a layer-reveal feature with a partial window on the back photo box; and 

  • - data fields displayed in different places than on previous versions.

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Biden Administration Expands Legal Pathways with Parole Strategy but Deeply Erodes U.S. Commitment to Asylum Protection

Washington, DC – The American Immigration Lawyers Association (AILA) responded to the announcement from President Biden today expanding Title 42 and humanitarian parole programs for migrants from Nicaragua, Cuba, and Haiti. The program is modeled after the Venezuela Parole Program announced in October and provides a legal pathway for some migrants from these three countries, provided they fulfill the program’s requirements, including having a U.S. sponsor. However, the announcement includes several measures that severely restrict asylum access including expansion of the Title 42 ban on asylum seekers from these countries at the border and a new version of the third-country transit ban on asylum seekers will be forthcoming in a proposed rule.


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AILA Practice Pointer on the New Public Charge Rule

Introduction

On September 9, 2022, the Department of Homeland Security (DHS) issued the final rule, pursuant to Immigration and Nationality Act (INA) §212(a)(4), with respect to the public charge ground of inadmissibility.2 The final rule is effective December 23, 2022, and will apply to lawful permanent resident applications postmarked (or electronically submitted) on or after this date.

The final rule amends 8 CFR Parts 103, 212, 213, and 245 and enshrines much of what had been established policy under legacy Immigration and Naturalization Service3 1999 Interim Field Guidance. However, there are several critical changes, discussed below, that may change the practice and adjudication of public charge issues.

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Reminder: New I-485 Effective Tomorrow, December 23, 2022

The CIS Ombudsman’s Office issued a reminder that starting tomorrow, December 23, 2022, the new edition of Form I-485, Application to Register Permanent Residence or Adjust Status, must be used. As with most other historical form changes, in this instance there will be no grace period. The new edition collects certain information required by the new public charge rule, which also takes effect tomorrow, December 23, 2022. For more information on the new rule, see AILA’s practice pointer.

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Title 42 Extended Last Minute before Expiration in 2 Days

Supreme Court Chief Justice John Roberts on Monday has temporarily extended Title 42, which was scheduled to lift on Wednesday, in an emergency action following appeal by 19 states.

Justice Roberts' brief order did not discuss the merits of the case, but instead delays expiration in order to allow full consideration of the states' appeal in light fast approaching deadline for Title 42 to end.

Roberts ordered responses to his order to be filed by Tuesday.

The states had asked the Supreme Court to intervene and keep Title 42 in place -- contending that not doing so "will cause a crisis of unprecedented proportions at the border."

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New Version of I-485 - Public Charge Rule in Effect

USCIS has posted the following important notice regarding Form I-485:

If you file Form I-485, Application to Register Permanent Residence or Adjust Status, on or after Dec. 23, 2022, you must use the 12/23/22 edition of Form I-485 or we will reject your filing. If you file Form I-485 before Dec. 23, 2022, you must use the 07/15/22 edition of Form I-485 or we will reject your filing.

On Sept. 9, 2022, DHS published the Public Charge Ground of Inadmissibility final rule to provide clarity and consistency for noncitizens on how DHS will administer the public charge ground of inadmissibility. The new final rule will go into effect on Dec. 23, 2022, and requires collection of information in the new 12/23/2022 edition of Form I-485.

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What will become of visa holders after last week's massive tech layoffs?

Last week, tech giants Twitter and Facebook enacted massive layoffs totaling thousands of employees in the USA. These unanticipated layoffs have sent shockwaves through employees in the tech industry and their families, who now must scramble to secure new jobs, else face insecurity making house payments and putting food on the table. While layoffs are devastating for all employees and their families, US visa holders, many of whom have been in the United States for several years, suffer the additional hardship of losing status in the USA.

Elon Musk, who acquired Twitter just this year, terminated half of the company's 7,500 employees just one week after closing his blockbuster buyout.  This has left 700 visa dependent employees without a job. In similar fashion, Facebook’s parent company, Meta, laid off 11,000 employees, or nearly 15% of their total workforce, many hundred of which depend on their employment visas to stay in the USA.
Unanticipated and widespread layoffs such as those occurring at Twitter and Meta have serious consequences for these employees whose ability to stay in the country is determined by their employment status. 




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