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U.S. Citizenship and Immigration Services announced today that it will increase the premium processing fee for certain employment-based petitions, effective Dec.2.
Key points:
Background: Premium processing is an optional expedited service that allows petitioners to request 15-day processing for a fee by filing the Form I-907, Request for Premium Processing Service. The premium processing fee is paid in addition to the base filing fee and any other applicable fees. The current fee of $1,410 was last changed in October 2018, and the agency has said it is increasing it to account for inflation.
BAL Analysis: Employers requesting premium processing should budget for the increase and ensure that they file the correct amount for petitions postmarked Dec. 2 and after to avoid delays. The fee hike could cause a spike in premium processing requests in November by employers attempting to file before the change takes effect.
This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.
Copyright © 2019 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.
Under a bilateral migration agreement signed by the United States and El Salvador Monday, the U.S. will extend work authorization for Salvadoran nationals holding temporary protected status (TPS) for one year.
Background: In January 2018, the Department of Homeland Security announced it would terminate the TPS program for El Salvador on Sept. 9, 2019. In October 2018, a court ordered the Department of Homeland Security to keep the program in place while lawsuits progress. To comply with the court order, DHS is maintaining TPS for six countries—El Salvador, Haiti, Honduras, Nepal, Nicaragua and Sudan. The U.S. Court of Appeals for the Ninth Circuit is weighing whether to keep the injunction in place or remove it. TPS covers approximately 280,000 Salvadorans.
BAL Analysis: The bilateral agreement will extend work authorization until Jan. 4, 2021, and, if a court upholds DHS’ decision to terminate TPS, will allow Salvadorans a year to repatriate after the lawsuit concludes. TPS for Salvadorans remains in place at this time and courts may require DHS to extend the program beyond the current date of Jan. 2, 2020 while the lawsuits progress.
More than 50 deans of U.S. business schools and 14 CEOs have signed a letter to President Donald Trump warning that this administration’s immigration policies are capping America’s economic growth and leaving a deficit of skills in key sectors, particularly STEM fields. The letter warns that “a combination of our outdated laws, artificial regional and skills-based caps on immigration and recent spikes in hostility are closing the doors to high-skilled immigrants our economy needs to thrive.”
BAL Analysis: The letter calls the current skills deficit a “crisis” and the reduction in international students and turning away of thousands of prospective H-1B candidates every year a “dangerous negative trend” for the U.S. economy, but suggests the trend could be reversed with key policy changes that remove some of the limitations on high-skilled immigrants and ease barriers to employment of international students after graduating from U.S. schools.
The Labor Department has posted processing times current as of Sept. 30 for permanent labor certification (PERM) applications and processing times as of Aug. 31 for prevailing wage determination (PWD) requests.
PERM Processing: Applications filed in July and earlier are now being adjudicated, according to the department. Audit reviews are being conducted on applications filed in February and earlier, and appeals filed in May and earlier are being reviewed for reconsideration.
Average PERM processing times as of July:
PWD Processing: The Labor Department has not yet posted PWD processing times for September. As of Aug. 31, however, the National Prevailing Center was processing PWD requests filed in May and earlier for H-1B and PERM cases. Redeterminations were being considered on appeals filed in August and earlier for H-1B cases and July and earlier for PERM cases. Center director reviews were being conducted on appeals filed in June and earlier for PERM cases. The department reported that it had no center director reviews pending for H-1B cases.
Average times for issuance of prevailing wage determinations in August:
The Labor Department reports PERM and PWD processing time frames on its iCERT page.
BAL Analysis: BAL’s internal case tracking is consistent with the Labor Department’s published processing times. BAL is seeing approvals for PERM applications filed in July and earlier and is seeing PWDs for requests filed in May and earlier.
Copyright © 2019 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries, please contact copyright@bal.com.
The American Immigration Lawyers Association (AILA) has submitted comments during the public comment period for the H-1B online registration fee rule. The rule, which U.S. Citizenship and Immigration Services (USCIS) has said it plans to introduce this coming cap season, will require petitioners to file an online registration form for each prospective H-1B candidate, using an H-1B registration tool, and pay a $10 fee per registration.
Background: USCIS has taken steps in recent months to implement the H-1B registration system for the upcoming cap season. The agency proposed a $10 H-1B registration fee rule on Sept. 4 and opened a 30-day public comment period that ended Oct. 4. The agency also released a screen shot of the H-1B registration tool earlier this month with a comment period ending Nov. 8.
BAL Analysis: The comments indicate some of the concerns of the immigration bar about the timing and implementation of the H-1B registration system and their impact on employers who are now beginning to prepare for cap season. It is hoped that USCIS will address these concerns in the final regulation and in its testing and rollout of the system. Employers should continue to anticipate that the agency is likely to implement the H-1B registration system for the coming cap season, and that the registration period would likely be held sometime between January and March.
The U.S. State Department has proposed a questionnaire seeking information from visa applicants about their potential ineligibility on the basis of the agency’s new “public charge” rule. The questionnaire has not been published yet, and is forthcoming.
Background: The State Department issued an interim final rule on Oct. 11 to take effect Oct. 15, but later announced it would delay implementation while it worked to finalize the visa applicant questionnaire. The rule was intended to align the State Department’s public charge inadmissibility standards for visa applicants applying at U.S. missions abroad with new public charge rules issued by the Department of Homeland Security for applicants within the U.S. But the same day the State Department issued its rule, federal courts blocked implementation of the DHS public charge rule. Federal courts in California, Illinois, Maryland, New York and Washington have enjoined the DHS rule from taking effect while the lawsuits proceed. Although those lawsuits and injunctions did not include the State Department’s public charge rule, the State Department rule is likely to face lawsuits and may be similarly enjoined from taking effect.
BAL Analysis: At this time, the State Department’s public charge rule and forthcoming questionnaire for visa applicants (Form DS-5540) have not yet been implemented. The 60-day public comment period and OMB review process mean that implementation is likely to take months and the rule would take effect in 2020 at the earliest. Visa applicants applying at U.S. consulates abroad should be aware that if the State Department rule takes effect, consular officers will use the information on the questionnaire to determine if visa applicants are likely to become a public charge and therefore ineligible for a visa. BAL is closely monitoring this rule and the questionnaire that is expected to be released soon, as well as litigation that may be filed to stop implementation of the rule. BAL will provide updates on developments as information becomes available.
By Martin Robles-Avila
The Supreme Court will hear arguments on Nov. 12 about whether the Trump administration acted lawfully when it terminated Deferred Action for Childhood Arrivals, the Obama-era program that has benefited roughly 700,000 Dreamers. Courts have kept DACA on life support and have required the government to continue accepting renewal applications while the case proceeds.
Will the Supreme Court resuscitate DACA or deliver the coup de grace? The outcome hinges on a federal law called the Administrative Procedure Act. Passed in 1946, the APA requires all federal agencies, including the Department of Homeland Security, to follow certain steps when promulgating rules and regulations. Since Congress is the branch of government authorized to make laws, these agencies, which are extensions of the executive branch, are only authorized to pass rules needed to implement those laws.
Because the APA limits how agencies implement rules and policies, it is often used to challenge immigration decisions, such as denials of visa petitions, and is the reason for many of the Trump administration’s losses in court. Several ongoing lawsuits invoke the APA to challenge policies such as the elimination of Temporary Protected Status, restrictions on asylum eligibility, the public charge rule, and the Optional Practical Training (OPT) program.
In what is known as notice-and-comment rulemaking, federal agencies must publish proposed rules in the Federal Register and allow the public to comment before they become final. Courts may invalidate rules deemed “arbitrary and capricious,” as they often do when they deem the agency’s stated reasons insufficient. This is why lower courts blocked DACA from termination. Importantly, no court has said that DACA cannot be rescinded—only that the process must result from reasoned decision-making. Exceptions to the notice-and-comment requirement exist, but courts tend to take a hard look at them.
A twist in the case is that President Obama introduced DACA through executive action without a notice-and-comment period. (Another lawsuit is challenging the legality of DACA.1) DHS will argue that if Obama had the authority to create DACA, Trump has the power to undo it, also without notice-and-comment, or as Trump has tweeted: “how can [Obama] have the right to sign and I don’t have the right to ‘unsigned’ [sic].” They will also argue that DHS’s decision to wind down DACA is not judicially reviewable at all, which is the other issue the Supreme Court has agreed to consider.
DACA advocates will counter that the government must follow the APA’s requirements even when repealing a rule crafted by a prior administration, and that the government never acknowledged “the devastating consequences of the rescission on the hundreds of thousands of DACA participants and the countless other stakeholders who have come to rely on the policy.”2 This “wholesale disregard” of the impact on DACA beneficiaries, “their families, their employers, and their communities renders the decision to rescind DACA arbitrary and capricious decision making.”
Dreamers represent a sympathetic population making substantial economic and educational contributions. Their fate depends on how nine justices, two appointed by Trump, interpret this septuagenarian law, whose full title is an “Act to improve the administration of justice by prescribing fair administrative procedures.” Of course, fairness is in the eye of the beholder—and difficult to adjudicate. A decision is expected by June.
Martin R. Robles-Avila is Senior Counsel in the San Francisco office of Berry Appleman & Leiden LLP.
The information contained here is meant to be informational, and while BAL has made every effort to ensure the accuracy of the information, it is not promised or guaranteed to be complete. Readers of this information should not act upon any information contained on this alert/blog without seeking professional counsel. This alert does not constitute legal advice or create an attorney-client relationship. Any reference to prior results, does not imply or guarantee similar future outcomes.
1 Texas v. Nielsen, U.S. District Court for the Southern District of Texas, 1:18-CV-00068, in which seven states challenge the legality of the introduction of DACA, remains pending.
2 DHS v. Regents of the University of California et al., No. 18-587, Brief of Regents of the University of California, et al., In Opposition to the Petition for Writ of Certiorari to the United States Supreme Court, https://www.supremecourt.gov/DocketPDF/18/18-587/76442/20181217133718115_18-587%20Regents%20Brief%20in%20Opposition.pdf.
U.S. Citizenship and Immigration Services has announced that in November it will follow the State Department’s Dates for Filing chart, as published in the November Visa Bulletin, to determine whether applicants are eligible to file for adjustment of status.
Dates for Filing for Employment-Based Preference Cases:
Family-based immigrants will also use the Dates for Filing chart applicable to family-sponsored immigrants, which was also published in the November Visa Bulletin.
BAL Analysis: November will mark the second straight month that USCIS will use the Dates for Filing chart. This 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, especially in the EB-1 category. 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 modestly or remain the same in employment-based categories next month, according to the Final Action Dates published Thursday in the November Visa Bulletin. The limited movement comes after more dramatic advancement in a number of categories in the October Visa Bulletin, the first of the fiscal year.
Key movements in the November Visa Bulletin.
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 November. 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 in the coming days. BAL will update clients once officials confirm whether the chart can be used in November.
A policy guidance released by the Student and Exchange Visitor Program indicates that F-1 students in Optional Practical Training or STEM-OPT extension programs must provide the designated school official (DSO) with a description of how their training program is directly related to their major area of study. While a direct relationship with the field of study is required for these programs, schools have never previously been required to keep and or review documentation relating to the requirement.
BAL Analysis: The policy guidance lays out the compliance responsibilities of designated school officials in determining whether a student’s degree is directly related to employment under an OPT or STEM-OPT program. While the guidance provides various examples of how seemingly unrelated connections between a degree and a job could occur, the requirements could lead DSOs to more closely scrutinize OPT applications and decline to recommend OPT employment in cases where the direct relationship is not clearly demonstrated. The Trump administration has indicated an increased focus on the OPT and STEM-OPT programs. Earlier this year, Immigration and Customs Enforcement began conducting site visits of employers of OPT and STEM-OPT students.