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U.S. Citizenship and Immigration Services (USCIS) posted guidance today on its website in response to a court order on Tuesday that blocked the agency from implementing a fee regulation. The regulation would increase filing fees and introduce revised forms, and was scheduled to take effect tomorrow.
Key points:
Background: USCIS issued the fee regulation in August, and a lawsuit was filed the same month challenging the regulation. On Tuesday, a judge issued a nationwide preliminary injunction blocking USCIS from implementing the regulation while litigation continues.
This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.
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A continuing appropriations bill signed into law last night that will fund the federal government through Dec. 11 makes changes to the U.S. Citizenship and Immigration Services (USCIS) premium processing service. The legislation requires the agency to increase premium processing fees and expand the service to other benefit categories. Premium processing is an expedited service that certain filers may request by paying an additional fee. These provisions aim to increase revenue for USCIS, which is experiencing a budget shortfall.
Key provisions:
Additional provisions:
BAL Analysis: Although the appropriations law takes effect immediately, USCIS is expected to provide guidance regarding the increases in the premium processing fee. Expansion of premium processing to other benefit categories will not happen immediately, and the agency’s next steps toward implementing those requirements are not yet known. BAL continues to monitor the agency’s response to the legislation and will provide updates as more information becomes available.
The Labor Department’s Office of Foreign Labor Certification (OFLC) has announced it will permanently adopt a recent policy of issuing PERM labor certification documents electronically.
Background: The OFLC initially introduced the electronic issuance policy on March 24 because of the COVID-19 pandemic, and extended the temporary policy once before making it permanent.
BAL Analysis: The permanent shift to electronic PERM issuance is welcome news for employers. Employers are reminded to safe list plc.atlanta@dol.gov to ensure receipt of electronic PERM documents. A July 30 inter-agency memorandum of agreement allows the Department of Homeland Security to access all PERM applications submitted to the Department of Labor through the online system, providing greater government oversight of employer compliance with wage and other labor certification requirements.
A federal judge in California issued a nationwide injunction Tuesday, blocking U.S. Citizenship and Immigration Services (USCIS) from implementing a rule to significantly increase immigration filing fees. The rule had been set to take effect Friday, Oct. 2.
Key Points:
Background: USCIS published the final version of the rule in August. Later that month, the American Immigration Lawyers Association and several nonprofit organizations filed suit to block the regulation from taking effect. Judge White did not rule on the merits of the case, but issued the injunction to stop the rule from taking effect while litigation continues.
BAL Analysis: The fee rule will not take effect while the injunction is in place. BAL continues to follow the litigation and will alert clients to important developments.
A federal appeals court recently overturned an injunction that since Oct. 2018 has blocked the Trump administration from terminating the Temporary Protected Status (TPS) program for El Salvador, Haiti, Nicaragua, and Sudan. The case, Ramos v. Wolf, affects more than 400,000 TPS holders.
Background: The court heard an appeal in a case in which a U.S. District Court in California issued a preliminary injunction in 2018 preventing DHS from terminating TPS for the four countries while the lawsuit proceeds. The Ninth Circuit vacated the injunction and ruled that the decision to terminate TPS was not reviewable by the courts. A separate injunction that blocks DHS from terminating TPS for Haiti is on appeal with another federal appeals court whose ruling is pending.
BAL Analysis: The decision does not immediately affect TPS designations for the four countries, which DHS had extended until Jan. 4, 2021. For information on the status of TPS for specific countries in light of the litigation, USCIS has a TPS page on its website.
U.S. Citizenship and Immigration Services has announced that in October it will follow the State Department’s Dates for Filing chart, as published in the October Visa Bulletin, to determine whether applicants are eligible to file for adjustment of status.
Dates for Filing for Employment-Based Preference Cases:
USCIS will also use Dates for Filing for family-based applicants, except for F2A category applicants, who may use Final Action Dates.
BAL Analysis: The use of Dates for Filing is good news for a number of employment-based immigrants, as the Dates for Filing chart contains more progressive cutoff dates than the Final Action Dates chart. Because Vietnam is not included on the Dates for Filing chart, adjustment of status applicants from Vietnam should use the dates listed under “all other countries.”
Priority-date cutoffs will advance in most employment-based categories next month, according to the State Department’s October Visa Bulletin, which was released Thursday. The October bulletin is the first for the new fiscal year.
Key Movements in Final Action Dates:
EB-1
EB-2
EB-3
Final Action Dates for Employment-Based Preference Cases:
The State Department also released its Dates for Filing chart for October. Applicants seeking to file for adjustment of status are reminded that the chart does not take effect unless U.S. Citizenship and Immigration Services confirms that it does via a web posting after the Visa Bulletin is released. BAL will update clients once officials confirm whether the chart can be used.
Additional Information: The bulletin predicted “rapid forward movement” in most employment classifications later this year. This would be expected since there were many unused numbers from this year that will roll over to the fiscal year that begins Oct. 1.
U.S. Immigration and Customs Enforcement (ICE) will publish a proposed regulation tomorrow that would set maximum periods of stay for foreign students, exchange visitors, and media personnel. The agency posted a prepublication version of the proposal today. This is the first step in the formal notice-and-comment process, and a final rule would not take effect for several months.
BAL Analysis: Current rules on duration of status (“D/S”) for F, J, and I nonimmigrants will remain in place until a final regulation takes effect. The government will accept comments from the public until Oct. 26 on the proposed regulation, and until Nov. 25 on the form changes required by the rule. ICE must review and consider the comments before finalizing the rule, and may make changes to the rule based on comments it receives. The prepublication version indicates the final rule would have a 60-day delayed effective date. BAL continues to review the proposed rule and assess its impact on foreign nationals.
Following an appellate court ruling, the Department of Homeland Security announced it will resume implementing the public charge rule nationwide, including in Connecticut, New York and Vermont.
Background: The resumption of the public charge rule comes in response to the U.S. Court of Appeals for the Second Circuit ruling on Sept. 11 that stayed an injunction that previously prevented the agency from implementing the public charge rule while the lawsuits make their way through the courts.
BAL Analysis: This announcement confirms that employers and employees must continue to submit documentation required by the new public charge rule to USCIS at this time. More information about filing requirements can be found on the USCIS website. The ruling does not disturb an injunction on the State Department’s version of the public charge rule that prevents that agency from implementing the rule for visa applicants outside the U.S. BAL is continuing to monitor the multiple lawsuits challenging the public charge regulations and will provide news and analysis as additional information becomes available.
The Department of Homeland Security has extended restrictions on nonessential travel across the U.S.’s land borders with Canada and Mexico.
Additional Information: The nonessential travel bans were imposed March 20, initially for 30 days, and have since been extended in 30-day increments.