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Immigration and business organizations continue to voice their concerns about U.S. Citizenship and Immigration Services’ proposal to dramatically increase filing fees and urge the agency to improve services.
In January, USCIS published a proposed rule that would raise fees for immigration benefit requests by a weighted average of 40% — and more for most high-skilled classifications. In a joint comment submitted last month, the American Immigration Lawyers Association and the American Immigration Council objected to the proposal, saying that USCIS is failing to fulfill its promises to stakeholders.
“We believe any request to increase fees for these unkept promises must incorporate significant process improvements and specific implementation timelines that fundamentally change the existing paradigm of slow and inefficient service,” the comment said.
USCIS has said the increased fees would allow the agency “to more fully recover its operating costs, reestablish and maintain timely case processing, and prevent the accumulation of future case backlogs.”
The agency accepted comments on the proposed rule through March 13. After a delay in publishing some of the comments, the government’s rulemaking portal now shows USCIS received nearly 8,000 comments on the proposed fee hikes. Comments are available for public review here.
Groups such as Business Roundtable, Compete America, the Worldwide Employee Relocation Council (WERC) and the Society for Human Resource Management (SHRM) say they understand that, as a fee-funded agency, USCIS must adjust fees from time to time. They say, however, USCIS must be clearer about how it is calculating the proposed fees and should take additional steps to improve services.
Among the more common critiques:
Opposition to the current proposal has come from throughout the business and immigration communities, including from humanitarian groups and organizations representing farmers, artists, athletes and colleges and universities.
The Presidents’ Alliance on Higher Education and Immigration said that even small fee increases can have a significant negative impact on international students, refugees, Deferred Action for Childhood Arrivals (DACA) recipients or anyone seeking to apply for naturalization. The organization called on Congress to “provide sufficient funding through annual appropriations, rather than saddling applicants seeking unrelated benefits with the responsibility of funding USCIS.”
BAL Analysis: USCIS has not raised fees since 2016, and employers and business and immigration organizations understand that fees do have to be adjusted. Stakeholders have continued to express concern, however, about the amount of the proposed increases, the $600 Asylum Program Fee surcharge and the extent to which agency services will improve with additional funding. The proposal would impose significant costs on employers; however, USCIS may make adjustments to its proposal. USCIS has also noted that fee amounts could change if Congress appropriates additional funding to the agency.
USCIS is now in the process of reviewing the nearly 8,000 comments it received, and the agency must consider them in formulating a final rule. Higher fees will not take effect for at least several months, and the possibility of litigation means implementation could be delayed even further. BAL will provide updates as information becomes available. In the meantime, companies can use BAL’s fee calculator to estimate the impact of the proposed fees on their programs.
This alert has been provided by the BAL U.S. Practice Group. For additional information, please contact berryapplemanleiden@bal.com.
Copyright © 2023 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.
U.S. Citizenship and Immigration Services extended the temporary suspension of the biometrics submission requirement for certain Form I-539 applicants.
Key Points:
Additional Information: USCIS stated that it plans to establish a permanent biometrics exemption for all Form I-539 applicants in the coming months. More information regarding this plan is available in the USCIS Fiscal Year 2022 Progress Report.
Copyright © 2023 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 White House announced a plan last week to extend Medicaid and Affordable Care Act healthcare coverage to Deferred Action for Childhood Arrival recipients.
Background: The Biden administration published a regulation to “preserve and fortify” DACA in August. The Fifth Circuit Court of Appeals is weighing the legality of the regulation after it ruled in October that the Obama administration did not follow proper procedures in creating DACA in 2012.
Currently, the Department of Homeland Security continues to adjudicate renewal applications (both DACA and employment authorization) and advance parole requests for existing DACA recipients; the agency remains prohibited from granting initial DACA requests and accompanying requests for employment authorization. Given the uncertainty around the litigation, individuals who are eligible to renew their DACA and related employment authorization are urged to do so as soon as possible.
BAL will continue to monitor the ongoing litigation and will provide updates on important developments related to DACA. For more information, visit BAL’s DACA Resource Center here.
U.S. Citizenship and Immigration Services announced that in May it will follow the State Department’s Final Action Dates chart, as published in the May Visa Bulletin, to determine whether applicants are eligible to file for adjustment of status.
Final Action Dates: Key Movements
EB-1
EB-2
EB-3
Final Action Dates for Employment-Based Preference Cases:
Additional Information: Family-based applicants must use the Dates for Filing chart next month, according to the USCIS announcement. More information is available here.
Get this news and more in the new episode of BAL’s podcast, the BAL Immigration Report, available on Apple, Spotify and Google Podcasts or on the BAL news site.
This alert has been provided by the BAL U.S. Practice Group.
Copyright ©2023 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 State Department released the May Visa Bulletin, showing advancement for China EB-3 and no movement for other China and India categories under Final Action Dates and Dates for Filing. All other countries under EB-3 will no longer be current under Final Action Dates and Dates for Filing, and all other countries under EB-2 will retrogress under Final Action Dates.
Dates for Filing: Key Movements
Dates for Filing for Employment-Based Preference Cases:
Additional Information: U.S. Citizenship and Immigration Services has not yet announced whether it will use the Final Action Dates or Dates for Filing chart in May. BAL will update clients once USCIS announces which chart will be used.
The Labor Department has posted updated processing times for permanent labor certification (PERM) applications and prevailing wage determination (PWD) requests.
PERM Processing: As of March 31, the department was adjudicating applications filed in July and earlier, conducting audit reviews on applications filed in April and earlier, and reviewing appeals for reconsideration filed in July and earlier.
PWD Processing: As of March 31, the National Prevailing Wage Center was processing PWD requests filed in January 2022 and earlier for H-1B OES and PERM OES cases, February 2022 and earlier for H-1B non-OES cases, and January 2022 and earlier for PERM non-OES cases. Redeterminations were being considered on appeals filed July and earlier for H-1B cases, and June and earlier for PERM cases.
BAL Analysis: BAL’s internal case tracking is mostly consistent with the Labor Department’s published processing times. BAL is seeing faster PWD issuances for PERM OES and non-OES cases. BAL is seeing approvals for PERM applications filed in July and earlier, and is starting to see PWDs for requests filed in January and earlier for H-1B OES cases, February and earlier for H-1B non-OES cases, and October and earlier for PERM OES and non-OES cases.
The U.S. State Department has waived and modified Exchange Visitor Program regulations for some Ukrainian students on J-1 visas.
Additional Information: Special Student Relief with respect to program status and employment for J-1 Ukrainian students does not apply to Federal Work-Study jobs. The waived and modified regulations will remain in effect until at least Oct. 23, 2023, unless the U.S. government ends the arrangement early or both the U.S. and Ukrainian governments extend its end date. The full Federal Register notice is available here.
BAL Analysis: The temporary changes of the Exchange Visitor Program regulations only address conditions that eligible Ukrainian exchange visitors must meet to be in status and comply with Exchange Visitor Program eligibility requirements. The State Department modified the requirements so that it can extend Special Student Relief to eligible Ukrainian J-1 students in the U.S. to mitigate the impact of Russia’s invasions of Ukraine has on them.
The state of Connecticut is celebrating another NCAA basketball championship, but its U.S. senators are lamenting a broader problem in college sports.
Two weeks ago, Sens. Richard Blumenthal and Chris Murphy, both Democrats, wrote a letter to Homeland Security Secretary Alejandro Mayorkas urging him to address current regulations that make it difficult for foreign student athletes to capitalize on their Name, Image and Likeness.
Blumenthal and Murphy noted that both the University of Connecticut’s men’s and women’s basketball teams had international players who made “significant contributions” this year (Blumenthal later mentioned Adama Sanogo and Aaliyah Edwards specifically), and added that, nationwide, more than 20,000 international students currently compete in collegiate athletics.
“As these athletes compete in their sports’ national championships and other high-profile competitions, any one of them could gain notoriety overnight and have substantial NIL opportunities presented to them,” the senators wrote. “The only thing standing in their way is our outdated regulations on the terms of their visas. This is unacceptable.”
We agree.
The problem stems from the fact that most foreign student athletes are on F-1 visas, which permit work only in limited circumstances. In this context, “work” is often equated with earning money from a U.S. source.
As Blumenthal and Murphy correctly note, current regulations do not “speak to the unique circumstances” of foreign students’ use of their NIL to earn money. This creates two classes of student athletes—U.S. athletes who are able to take any NIL deal they are offered, and foreign athletes who could jeopardize their immigration status for doing the same thing.
There are some workarounds. For example, foreign student athletes can conduct NIL activities while outside the U.S. Others have been successful in converting from an F-1 to an O-1 visa (for individuals with outstanding abilities) or P-1 visa (for athletes, artists or entertainers), which would allow them to work, attend class and participate in their sport.
Neither is a satisfactory long-term solution, however. There are logistical challenges to going abroad, and legal costs and filing fees make applying for a different visa an unattractive option for many student athletes.
A sensible solution would be for DHS to turn to the B-1 Temporary Business Visitor visa as a model. B-1 visitors are barred from “performing skilled or unskilled labor” in the U.S. However, the government has issued rules and guidance regarding a range of business-related activities that are considered permissible (i.e., not “labor”), such as engaging in certain commercial transactions, consulting with business associates, traveling to conferences, short-term training and negotiating contracts.
Even professional athletes can use B-1 visas to participate in tournaments or sporting events if they only receive prize money, which, for some sports, can mean earning millions of dollars.
There is no reason DHS cannot do the same for F-1 international students. After all, they are—first and foremost—students, and most NIL deals are worth far less than the amounts professional athletes can receive competing in multiple tournaments or events.
Many NIL activities require very little of the athlete and may include signing autographs, making personal appearances or posting on social media. These activities are merely incidental to visa holders’ status as student athletes, which requires them to maintain a full course of study. This kind of approach would allow international athletes to secure NIL deals and carry out their end of the bargain in the U.S.—not outside the country.
To date, DHS has not engaged relevant stakeholders on this issue and appears to lack a true understanding of the NIL opportunities available to students. It has been nearly two years since the NCAA adopted its NIL policy, and the government has yet to issue any guidance.
The good news is Blumenthal and Murphy appear to have grabbed Mayorkas’ attention. At a Senate Judiciary Committee hearing last week, Mayorkas thanked Blumenthal for the letter and said he had not previously been aware of the issue.
“We are indeed looking at the issue very carefully,” he said, adding, “We will move with deliberate speed … we will move as quickly as we can.”
Until then, the two-tiered system of college sports will continue. DHS, the ball is in your court.
Gabriel Castro is a Senior Associate at BAL who leads the firm’s Los Angeles office and Sports and Entertainment practice. Tiffany Derentz is a Senior Counsel at BAL who leads the firm’s Washington, D.C. office. She is a member of the firm’s Government Strategies and Sports and Entertainment teams. Castro and Derentz authored a white paper on the NCAA’s NIL rules in 2022 and appeared on a recent episode of the firm’s podcast to discuss the issue.