H-1B CAP - Registration – A New Era!
On November 8, 2019, the U.S. Department of Homeland Security published a final rule establishing an electronic registration program for H-1B CAP petitions for FY 2020.
Just four days before its implementation, the Director of USCIS, Ken Cuccinelli, stated that he has a “fairly high degree of certainty” that USCIS will be ready to implement the digital tool for the upcoming H-1B 2020 cap season. He also said he expects that the USCIS will make a formal announcement by the end of the fiscal year. Continue reading…
E1- E2 Visas - End of E‑1 and E‑2 Visa Eligibility for Iranian Nationals
On January 22, the USCIS announced that Iranian nationals are no longer eligible for E-1 treaty trader and E-2 treaty investor visas. According to the announcement, the decision is based on the termination of the 1955 Treaty of Amity, Economic Relations, and Consular Rights with Iran announced by the Department of State on Oct. 3, 2018.
Due to the termination of the treaty, Iranian nationals are no longer eligible for E-1 and E-2 visa changes or extensions of status. USCIS will send Notices of Intent to Deny (NOID) to E visa applicants who filed applications after the Department of State’s Oct. 3, 2018, announcement. Iranians currently holding and properly maintaining E-1 or E-2 status may remain in the U.S. until their current status expires.
USCIS Fee Increasing? Breaking News! New Comment Period!
On January 24, 2020, the Department of Homeland Security (DHS) announced the reopening and extension of the public comment period for the proposed rule titled “U.S. Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements.” The Department of Homeland Security originally published a proposed rule on November 14th, and the comment period had originally ended on December 30, 2019. However, DHS has since announced that it will reopen the comment period for an additional 15 days. As part of this rulemaking, DHS will consider comments received during the entire public comment period, including comments received since December 30, 2019. Click here for the Federal Register announcement.
Proposed Fee Increases
A complete list of the new fees is in the published rule; however, the most notable changes are outlined below. The proposed changes include new and/or increased fees for adjustment of status, asylum, DACA renewals and naturalization (one of the largest increases).
As of December 2, 2019, USCIS updated Form I-907, Request for Premium Processing Service and increased the filing fee to $1,440. For the updated form, click here.
USCIS is also proposing lengthening the premium processing period from 15 calendar days to 15 business days, effectively prolonging the period by one week.
A complete list of the new fees is in the published rule; however, we listed the most used forms with proposed new fees here.
Re-Introduction of EAD and AP Filing Fees
The DHS also proposed re-introducing filing fees for employment authorization (Form I-765) and travel document (Form I-131) Application. I-765 (EAD) and I-131 (AP) forms.
Since July 30, 2007, applicants filing an I-485 have been able to file forms I-765 and I-131 without paying a separate fee. Under the proposed rule, an I-485 applicant would have to pay the standard I-765 and I-131 filing fees. In addition, an applicant who files to extend an EAD while the I-485 is pending would also have to pay the I-765 filing fee.
New I-589 Asylum Filing Fee
In addition, for the first time, the USCIS would charge a filing fee for an I-589 asylum application and a filing fee for a request for renewal of status under Deferred Action for Childhood Arrival (DACA).
Proposed Changes to the Form I-129 and Increased Fees
In addition to adjusting certain filing fees, the DHS is proposing that the petition for nonimmigrant workers (form I-129) be separated into various (different) forms.
Currently, a petitioner can use Form I-129 for deferent nonimmigrant classifications, including H-1B, L-1, TN, and E classifications. Under the proposed rule, the DHS will classify the I-129 Form into eight (8) different categories. Each category will have an individual form and a separate fee as follows:
DHS is justifying the division of the forms into separate forms due to the differing adjudication times of each petition.
Increased Fees for Certain H-1 and L-1 Dependent Employers
The proposed rule includes a policy change, which will affect employers who have more than 50 employees, of whom more than 50 percent are working pursuant to H-1B or L-1 status. These employers are currently required to pay an additional $4,000 filing fee for each initial application filed on behalf of an employee. Under the proposed policy change, these employers would be required to pay the additional $4,000 fee with every H-1B and/or L-1 petition filed, including extension application.
Good Moral Character – USCIS Policy Update!
USCIS issued a policy alert expanding existing guidance on the “unlawful acts” bar to establishing good moral character for naturalization, including adding additional examples of unlawful acts. The updated guidance emphasizes that USCIS officers determine conditional bars on a case-by-case basis.
For a link to the policy alert, click here. If you want to view the Policy Manual and section where this guidance has been added, click here.
On January 31, these offices will be closed permanently. This is part of the USCIS plan to reduce International Field offices. They commenced with the closing of the Field Offices in Ciudad Juarez, Mexico (June 30, 2019) and Manila, the Philippines (July 5, 2019).
On August 9, 2019, the USCIS announced its plans to maintain operations at seven international USCIS field offices (in Beijing and Guangzhou, China; Nairobi, Kenya; and New Delhi, India). However, previously, Acting Director Ken Cuccinelli directed the agency to continue operating in Guatemala City, Guatemala; Mexico City, Mexico; and San Salvador, El Salvador, as part of a whole-of-government approach to address the crisis at the southern border. USICS expects to complete closings of International Filed Offices by August 2020.
According to the USCIS, many functions currently performed at international offices will be handled domestically or by USCIS domestic staff on temporary assignments abroad. As part of this shift, the Department of State (DOS) will assume responsibility for certain in-person services that USCIS currently provides at international field offices. In addition to issuing visas to foreign nationals who are abroad, DOS already performs many of these service functions where USCIS does not have an office. USCIS is working closely with DOS to minimize interruptions in immigration services to affected applicants and petitioners.
The U.S. Department of State (DOS) released the Visa Bulletin for February 2020. Slight movement for most countries, and anticipating EB-3 Worldwide to retrogress in March.
According to the Department of State, cutoff dates for immigrant visas in the month of February will be as follows:
EB-1: All countries except for China and India will advance by two months to December 1, 2018. China will remain at May 22, 2017, and India will remain at January 1, 2015.
EB-2: All countries, except for China and India, are current. China will advance by two weeks, to July 15, 2015, and India will advance by one day, to May 19, 2009.
EB-3 Professional and Skilled Workers: All countries, except for India, China, and the Philippines, are current. China will advance by one month, to January 1, 2016, India will advance by one week, to January 8, 2009, and the Philippines will advance by two and a half months, to June 1, 2018.
EB-5: All countries, except for China, India, and Vietnam, are current. China will advance by one week to December 1, 2014; India will advance by four months to September 1, 2018; and Vietnam will advance by one week to December 15, 2016.
The USCIS sets its own determination regarding which dates to follow based on the Department of State Visa Bulletin. If you are applying for adjustment of status (I-485 form), please review the USCIS Adjustment of Status Filing Charts from the Visa Bulletin to ascertain your filing date. For February, it is not yet known whether USCIS will again accept adjustment applications based on the Dates for Filing chart, rather than the Final Action chart, as it has done for the last several months. They will announce on its own Visa Bulletin web page the cutoff dates for acceptance of adjustment of status applications shortly.
Cutoff dates in the Dates for Filing chart for February will remain unchanged from January 2020.
Question of the month:
Do employers need to have the H-1B CAP visa application ready for filing before completing the Registration process?
Answer:
NO. Employers will be required to register for the H-1B CAP random selection (“lottery”). Once the lottery is completed, the USCIS will notify the employer that was selected so they file the H-1B CAP application within 90 days. In our experience, 90 days is enough time to prepare and file the H-1B CAP application. However, before completing the registration process and to avoid filing frivolous H-1B visa applications (which is against the law), employers and attorneys must exercise due diligence when reviewing basic information and documentation related to the employer and employee H-1B qualifications.
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