DHS PROPOSED RULE FOR USCIS FEE SCHEDULE INCREASE

Today the Department of Homeland Security (DHS) published a New Rule in the Federal Register following its review of United States Citizenship and Immigration Service's (USCIS) filing fee schedule.  The weighted average increase for USCIS fees is 21%. 

Fee comparisons for the most common types of filings are summarized in the attached D&S USCIS Fee Comparison Chart.

Of note, DHS's proposed rule establishes a three-level fee for the Form N-400, Application for Naturalization and clarifies that individuals filing a benefit request may be required to pay the biometrics services fee and appear for biometrics services or an interview.

The Rule's 60 day comment period starts today, May 4, 2016.

D&S will continue to monitor and provide updates as they become available.

Department of State May 2016 Visa Bulletin Summary

The Department of State released the May 2016 Visa Bulletin this week.  D&S provides a Monthly Summary of the family and employment-based priority dates.  For the second and third employment-based preference categories, Application Filing dates remained unchanged and there was modest forward movement in the Final Action dates EB-2 and EB-3 India of three weeks. There was no movement in EB-2 and EB-3 China Final Action dates.  Final Action dates for EB-3 Worldwide and EB-3 Mexico also remained unchanged and EB-3 Philippines progressed just over 3 months. The EB-5 China Final Action date advanced by just one week from February 1, 2014 to February 8, 2014.  Finally, the visa bulletin establishes a new cut-off date for the employment-based, fourth preference and certain religious workers preference categories for applicants from El Salvador, Guatemala, and Honduras.

As of today, April 13, 2016, USCIS has not advised whether in May 2016, it will accept adjustment of status applications for family or employment-based petitions based on filing dates, rather than final action dates. USCIS anticipates that this information will be released within one week of the monthly Visa Bulletin.

D&S will provide further updates as they become available. 

USCIS Reaches H-1B Cap for Fiscal Year 2017

USCIS announced today that the H-1B cap for Fiscal Year (FY) 2017 has been reached. As expected, USCIS received more than the limit of 65,000 H-1B petitions and also received more than the limit of 20,000 H-1B petitions filed under the U.S. advanced degree cap. 

Because the cap has been met, USCIS will use a computer-generated process, known as the H-1B Lottery, to randomly select the petitions that will make up the 65,000 visas for the regular cap and the 20,000 visas for the U.S. advanced degree cap.

As in past years, USCIS will first run the lottery to select the petition under the U.S. advanced degree cap. All advanced degree petitions that are not selected under this cap will become part of the lottery for the 65,000 regular cap. Once the lottery process is completed, USCIS will then reject and return all unselected cap-subject petitions along with the accompanying filing fees.

Due to the high number of petitions, USCIS has indicated they they are currently unable confirm the date the Service will begin the random selection process.

As a reminder, USCIS will continue to accept and process petitions that are otherwise exempt from the cap, including H-1B Extensions, Amendments, and "Change of Employer" filings.

UPDATE: On April 12, 2016 USCIS announced that the agency had received over 236,000 cap-subject H-1B petitions, including petitions filed for both the 65,000 general-category cap and the 20,000 advanced cap. USCIS also indicated that the computer-generated lottery selection process was completed on April 9th.  USCIS still expects to begin Premium Processing adjudication no later than May 16, 2016.

D&S will continue to monitor this and will provide updates as they become available. 

Department of State April 2016 Visa Bulletin Summary

The Department of State released the April 2016 Visa Bulletin this week.  D&S provides a Monthly Summary of the family and employment-based priority dates.  For the employment-based preference category, Application Filing dates remained unchanged and there was modest forward movement in the Final Action dates for most preference categories. EB-2 & EB-3 India both advanced 3 weeks with EB-2 India moving from October 15, 2008 to November 8, 2008 and EB-3 India progressing from July 15, 2004 to August 8, 2004.  EB-2 China Final Action dates progressed 1 month from August 1, 2012 to September 1, 2012 and EB-3 China Final Action dates progressed 2.5 months from June 1, 2013 to August 15, 2013.  Moreover, Final Action dates for EB-3 Worldwide and EB-3 Mexico both progressed 1.5 months from January 1, 2016 to February 15, 2016. The EB-5 China Final Action date advanced by just 1 week from January 22, 2014 to February 1, 2014.  As of today, March 10, 2016, USCIS has not advised whether in April 2016, it will accept adjustment of status applications for family or employment-based petitions based on filing dates, rather than final action dates. USCIS anticipates that this information will be released within one week of the monthly Visa Bulletin.

Final DHS Rule Published: "240-Day Rule" Now Includes E-3, H-1B1, and CW-1 Nonimmigrants

Earlier this year the Department of Homeland Security (DHS) published a Final Rule which extends the 240-day employment authorization rule to H-1B1, E-3, and CMNI (CW-1) workers, adds a "comparable evidence" provision for outstanding professors and researchers, and clarifies and updates several point regarding work authorization and extension filing procedures for the above nonimmigrant visa classifications.  On February 16, 2016, the final rule became effective, thus permitting E-3, H-1B1, and CW-1 nonimmigrant workers to now benefit from the rule permitting a 240-day extension of employment authorization following a timely-filed request for extension of stay.

Employers should keep this new rule in mind when documenting continued employment authorization during I-9 re-verification and discuss with immigration counsel if they have any questions regarding what documents serve as acceptable proof of continued employment authorization following this regulatory change.

Department of State March 2016 Visa Bulletin Summary

The Department of State released the March 2016 Visa Bulletin this week.  D&S provides a Monthly Summary of the family and employment-based priority dates.  For the employment-based preference category, there was forward movement in the Final Action date for EB-2 India, which advanced 2.5 months from August 1, 2008 to October 15, 2008.  The Final Action date for EB-3 India progressed just one month to July 15, 2004.  There was forward movement in both the Filing dates and the Final Action dates for EB-2 and EB-3 China.  For EB-2 China, the Filing date progressed 5 months from January 1, 2013 to June 1, 2013 and the Final Action date progressed 5 months from March 1, 2012 to August 1, 2012.  For EB-3 China the Filing date progressed 1 year and 7 months from October 1, 2013 to May 1, 2015 and the Final Action date progressed 8 months from October 1, 2012 to June 1, 2013.  Moreover, the Filing dates for EB-3 Worldwide and EB-3 Mexico will be current and the Final Action dates will progress 3 months from October 1, 2015 to January 1, 2016. EB-5 China Final Action Dates advanced by just 7 days from January 15, 2014 to January 22, 2014.  As of today, February 9, 2016, USCIS has not advised whether in March 2016, it will accept adjustment of status applications for family or employment-based petitions based on filing dates, rather than final action dates. USCIS anticipates that this information will be released within one week of the monthly Visa Bulletin.

District Court Judge Grants DHS's Request for Extension in STEM OPT Litigation

On Saturday, January 23, 2016, the U.S. District Court for the District of Columbia granted DHS's request for an extension of time to implement new STEM OPT regulations.  Originally, the Court stayed the invalidation of the current STEM OPT regulations and gave DHS until February 12, 2016, to implement the new rule.  On October 19, 2016, DHS published the new rule as part of the required notice and comment period. On December 22, 2016, DHS requested an extension of this deadline in light of the large amount of comments (over 50,000) the agency received during the notice period. This weekend, the District Court granted DHS's request for an extension to May 10, 2016, giving the agency almost three additional months to review the comments received during the notice period and publish a final rule.  

This extension comes as a welcome relief to STEM students given the uncertainty surrounding their status and employment authorization if DHS did not meet the original February deadline. DHS will hopefully provide clarification as to whether individuals with STEM extension requests pending at the time the new regulation takes effect will be eligible for a 17-month extension under the old regulation or a 24-month extension under the new regulation .  Students who will become eligible to file a STEM extension between now and May 10 should contact immigration counsel to discuss the timing of the filing prior to submitting their extension request.

D&S will continue to monitor the situation and provide updates as they become available.

USCIS Issues Draft Policy Memo Discussing “Comparable Evidence” Provision for O Visa Category

This week the United States Citizenship and Immigration Service (USCIS) issued a Draft Policy Memo addressing the comparable evidence provision for O nonimmigrant visas.  The Draft Memo indicates that adjudicators can take a “more flexible” approach to their review of other comparable evidence and need not accept such evidence only where the petitioner has established that the majority of the listed criteria do not readily apply to the beneficiary’s occupation.  Rather, the Draft Memo advises adjudicators that the comparable evidence provision was considered as a “catch-all” criterion to allow for additional evidence to be considered when the other enumerated criteria do not readily apply “in whole or in part” when evaluating a beneficiary’s eligibility.  

The Draft Memo further clarifies that the the best interpretation of the regulatory language, as a matter of policy, is to consider comparable evidence “on a criterion-by-criterion basis.”  Thus, adjudicators are instructed to consider evidence of equal significance demonstrating the beneficiary’s extraordinary ability when one or more of the listed criteria do not readily apply to the beneficiary’s occupation. Thus, while petitioners must still show that any of the particular O-1 criteria do not apply before submitting comparable evidence, they need not demonstrate that the majority of the criteria do not apply.  

The Draft Memo also reiterates that adjudicators should use both a quantitative and qualitative approach when assessing whether the evidence submitted demonstrates the beneficiary’s extraordinary ability.

In addition to the Draft Memo, USCIS has also issued a revised Draft RFE Template.  Comments on the Draft Memo and Draft RFE Template are due by February 22, 2016.

Department of State February 2016 Visa Bulletin Summary

The Department of State released the February 2016 Visa Bulletin today.  D&S provides a Monthly Summary of the family and employment-based priority dates.  This month, there was no forward movement in any employment-based or family-based Filing Dates.  For the employment-based preference category Final Action Dates, there was forward movement for EB-2 India, which advanced 5 months from February 1, 2008 to August 1, 2008.  EB-2 China advanced one month from February 1, 2012 to March 1, 2012. EB-3 Worldwide and Mexico remained unchanged and EB-3 China, India, and the Philippines all saw forward movement of between 1 and 3 months. EB-5 China Final Action Dates advanced by just 7 days from January 8, 2014 to January 15, 2014.  As of today, January 8, 2016, USCIS has not advised whether in February 2016, it will accept adjustment of status applications for family or employment-based petitions based on filing dates, rather than final action dates. USCIS anticipates that this information will be released within one week of the monthly Visa Bulletin.

DHS Proposes New Rule Impacting High-Skilled Nonimmigrant Workers

On the last day of 2015, The Department of Homeland Security (DHS) published a proposed rule entitled the Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers.  Some of the principal changes that the new rule would bring include:

• Clarifying and improving longstanding agency policies and procedures implementing sections of the American Competitiveness in the Twenty-First Century Act (AC21) and the American Competitiveness and Workforce Improvement Act (ACWIA) related to certain foreign workers, which will enhance USCIS’ consistency in adjudication.
• Better enabling U.S. employers to employ and retain certain foreign workers who are beneficiaries of approved employment based immigrant visa petitions (I-140 Petitions) while also providing stability and job flexibility to these workers. The proposed rule will increase the ability of such workers to further their careers by accepting promotions, making position changes with current employers, changing employers, and pursuing other employment opportunities.
• Improving job portability for certain beneficiaries of approved I-140 petitions by limiting the grounds for automatic revocation of petition approval.
• Clarifying when individuals may keep their priority date to use when applying for adjustment of status to lawful permanent residence, including when USCIS has revoked the approval of their approved I-140 petitions because the employer withdrew the petition or because the employer’s business shut down.
• Allowing certain high-skilled individuals in the United States in E-3, H-1B, H-1B1, L-1, or O-1 nonimmigrant status to apply for one year of unrestricted employment authorization if they:
  1. Are the beneficiaries of an approved I-140 petition;
  2. Remain unable to adjust status due to visa unavailability; and
  3. Can demonstrate that compelling circumstances exist which justify issuing an employment authorization document.
• Clarifying various policies and procedures related to the adjudication of H-1B petitions, including, among other things, extensions of status, determining cap exemptions and counting workers under the H-1B visa cap, H-1B portability, licensure requirements, and protections for whistleblowers.
• Establishing a one-time grace period during an authorized validity period of up to 60 days for certain high-skilled nonimmigrant workers whenever their employment ends so that they may more readily pursue new employment and an extension of their nonimmigrant status.

The proposed rule appears to be an implementation of the immigration executive actions announced in November 2014, although DHS does not state this affirmatively. DHS will accept comments through February 29, 2016, and should publish a final rule by December 19, 2016, prior to the end of the current Administration.

D&S will continue to monitor developments with the proposed rule and provide updates as they become available.

D&S Update: STEM OPT Regulation

What's Happening

Several months ago, in August of 2015, the United States District Court for the District of Columbia vacated the Department of Homeland Security's (DHS) 2008 Science, Technology, Engineering and Mathematics (STEM) optional practical training (OPT) interim final rule finding that DHS failed to comply with the Administrative Procedure Act (APA) because it lacked sufficient good cause to bypass the requirements of advance notice and an opportunity for public comment. The district court the Court suspended the ruling from taking effect until February 12, 2016, to permit DHS time to promulgate a new rule and avoid the disruptive effect of vacatur on STEM employers and STEM students.

In response to the district court's order, DHS proposed a revision on October 19, 2015, providing only a 30-day public comment period, which is close to the minimum amount of time permitted. Still, DHS received more than 50,700 comments during the public comment period and, as a result, on December 22, 2015, the Department of Justice (DOJ) asked the court to “extend the stay of vacatur for approximately ninety (90) days, through May 10, 2016, providing for approximately 30 days to complete the rulemaking and 60 days for a delayed-effective-date period, under which DHS would train agency personnel and coordinate with the regulated community.” On December 24, 2015, the district court gave the plaintiffs until January 11, 2016, to respond to DHS' request for an extension. 

What this Means

While the expectation is that the request will be granted in an effort to avoid the serious adverse impact this would have on students and employers,  if the court does not grant DHS' extension request, the current rule would expire effective February 13, 2016. If that happens, DHS has suggested that the agency may have to consider options like returning any pending STEM OPT applications and requiring that applicants refile after the effective date of a final rule.   

D&S will continue to monitor this developing situation and provide updates as they become available.

Omnibus Appropriations Bill Contains Fee Increase for H-1B and L-1 Supplemental Fees

The omnibus appropriations bill, which was singed into law last week, includes a provision to increase the H-1B and L-1 supplemental fees for companies with more than 50 employees, that have 50% or more of their employees in H-1B or L-1 status. The supplemental fees for L-1 petitions will increase from $2,250 to $4,500 and the supplemental fees for H-1B petitions will increase from $2,000 to $4,000.  Under the new law, these fees must be paid upon initial filing as well as for extension petitions.

This provision is effective immediately, which may impact individuals who filed petitions on December 18, 2015, or shortly thereafter, with the old fee amount.  It is unclear whether a grace period will be put in place which will allow USCIS to accept the case and then request the proper supplemental fee by issuing a Request for Evidence (RFE). 

Employers and attorneys should keep these fee increases in mind as we approach H-1B cap filing season.  The fees will be in effect for at least 10 years, until September 30, 2025, and are not expected to have a substantial impact on demand for either the H-1B or L-1 visa. 

D&S will continue to monitor and provide updates as they become available.

D&S Legislative Update: Omnibus Spending Bill Passed by the House, Up for Vote in the Senate

In the late hours of Tuesday evening, December 15, 2015, after days of intense negotiations, Congressional leadership announced that it has reached a sweeping year-end deal on the omnibus federal spending bill needed to continue to fund the Federal government. This announcement follows the five-day continuing resolution passed by Congress on December 10, 2015, to allow for additional time for the omnibus federal spending bill to be finalized and avoid a government shutdown.

On Thursday, December 17, 2015, the House passed the spending bill by a vote of 318 to 109.  The Senate is expected to vote on and pass the bill on Friday, December 18, 2015.  The omnibus appropriations bill contains a recommendation to extend the EB-5 program in its current form through September 30, 2016, without the widely discussed changes to the minimum investment amounts or the definition of Targeted Employment Area (TEA).  In addition to extending the EB-5 program, the bill will also extend other expiring immigration programs, including the E-verify program, Conrad 30 waivers for J-1 medical workers, and R-1 visas for religious workers. Finally, the bill contains reforms to the Visa Waiver Program (VWP), including the requirement that program users have electronic passports with biometric and biographic information and restricting use of the program for certain individuals who have traveled to Iraq, Sudan, Iran and Syria.

UPDATE: On Friday, December 18, 2015, the U.S. Senate approved the spending bill by a vote of 65 to 33. President Obama is expected to sign the bill into law no later than December 18th.