Updated May 29, 2020Presidential Proclamation: As noted in our blog post on April 22, the new Presidential Proclamation regarding immigration affects only consular processing immigrant visa cases, with certain exceptions. Nonimmigrant visas and statuses are...
As previously posted, on Monday, January 27, 2020, the U.S. Supreme Court granted the administration’s request for a stay of the nationwide injunction against the administration’s public charge rule, which cleared a path for the Department of Homeland Security (“DHS”) to implement the public charge rule within the United States starting on February 24, 2020.
The new rule drastically changes the standard by which a foreign national is determined to be “likely at any time to become a public charge” (and consequently inadmissible to the U.S.), and affects not only family-based but also employment-based filings.
As described in a prior post, on May 10, 2018, USCIS announced a policy memorandum titled “Accrual of Unlawful Presence and F, J, and M Nonimmigrants” (“memo” or “unlawful presence memo”). This memo was finalized on August 9, 2018. As background, F, J, and M nonimmigrant visas are for international students, scholars, and participants in international educational/cultural exchange programs (including interns and trainees). In brief, the memorandum would have changed the start of accrual of “unlawful presence” for F, J, and M nonimmigrants from the day after DHS made a formal finding that the individual violated their nonimmigrant status to the day after the individual engaged in an unauthorized activity. Unlawful presence often has serious, irreversible consequences such as bars to re-entry to the United States. This memo essentially undid years of law and policy that allow for notice and due process before a bar is applied.
The memo has been the subject of litigation, and on February 6, 2020, in the case of Guilford College et al. v. Chad Wolf, U.S. Department of Homeland Security et al., No. 1:18CV891 (M.D. N.C. Feb. 6, 2020), the U.S. District Court for the Middle District of North Carolina granted the Plaintiff’s motion for partial summary judgment and issued a permanent, nationwide injunction enjoining USCIS from enforcing the memo
As discussed in prior posts, USCIS is taking steps to implement an electronic registration system for use in the upcoming H-1B cap lottery for government fiscal year 2021. More details were released this week in a USCIS webinar for “Registrants”—that is, the companies and organizations seeking to submit an H-1B petition.
In the webinar USCIS stated that Registrants will be able to set up accounts on February 24, one week before the registration window of March 1-20 opens. The agency confirmed that should the electronic system fail, it would require petitioners to submit full petitions as in past cap seasons; related filing deadlines will be announced later, should they become necessary.
On January 31, 2020, the Trump administration expanded the current Travel Ban (commonly referred to as “Travel Ban 3.0”), which has been deemed lawful by the U.S. Supreme Court, to include additional countries. As with prior versions of Travel Ban 3.0, the expansion suspends entry by preventing visa issuance to citizens and nationals of the listed countries. As the ban is a visa issuance restriction and not an entry restriction, nationals from the affected countries who already hold visas may continue to use those visas.
Update:
USCIS announced on January 31, 2020 that it will implement the rule changes for filings received on or after February 24, 2020. New forms are to be released the week of February 3, 2020.
Original post:
As discussed in a prior post, the administration’s “public charge” rule changes the standard by which a foreign national is determined to be “likely at any time to become a public charge” (and consequently inadmissible to the U.S.). While litigation has delayed the implementation of the rule, on Monday, January 27, 2020, the U.S. Supreme Court granted the administration’s request for a stay of the nationwide injunction against the rule, which clears a path for the Department of Homeland Security (“DHS”) to implement the public charge rule within the United States, except for Illinois, which has a statewide injunction that remains in place.
As discussed in our previous blog posts, USCIS is taking steps to implement an electronic registration to be used in the upcoming H-1B cap lottery for Fiscal Year 2021. A few further implementation details have now been released in a Federal Register posting dated January 9, 2020, and in a press release dated January 10, 2020. USCIS noted the following details:
The initial registration period will open from March 1 through March 20, 2020.
H-1B cap-subject petitioners, including those seeking Master’s cap H-1Bs, will be required to first register electronically with USCIS and pay the associated $10 H-1B registration fee for each submission.
This is a brief update on L-1 “intracompany transferee” visa processes for Canadian citizens, because those processes began changing in April 2018. As background, the L-1 intracompany transferee visa, in most cases, requires that the employer first file and obtain USCIS approval of an L-1 petition, and that the prospective L-1 employee (the beneficiary) then apply in person to a U.S. Consulate in their home country for a physical L-1 visa. Canadian citizens are usually “visa-exempt,” meaning they are not required to get a physical visa from a U.S. Consulate. Moreover, for L-1 visas, the North American Free Trade Agreement (NAFTA) allows for eligible Canadian citizens to submit their U.S. employer’s L-1 petition directly at a “Class A” port of entry (POE) for on-the-spot adjudication by U.S. Customs & Border Protection (CBP) at the same time the individual is asking CBP for admission to the U.S.
On November 14, 2019, DHS published a new rule containing numerous adjustments to U.S. Citizenship and Immigration Services’ (USCIS) filing fee schedule. These proposed adjustments are in addition to other recently finalized fee rules increasing the Premium Processing Service fee by $30 and adding a $10 fee for each electronic H-1B cap registration. In this new rule, DHS is planning on an upward adjustment of USCIS fees “by a weighted average of 21 percent” among other changes.
AILA has published a searchable table of fee adjustments, located here, which shows upwards adjustments to filing fees for many commonly used forms such as N-400 for naturalization, I-485 for Adjustment of Status, I-140 for immigrant visa petitions, and I-129 for nonimmigrant visa petitions.
