USCIS PUBLISHES FILING FEE INCREASE

On July 31, 2020, the USCIS published a rule that will increase or decrease USCIS filing fees.   The new fees for most business immigration filings are in the table, below.  You can find a full list of new fees here. The new fees go into effect October 2, 2020. 

Form	Current Fee	New Fee	Change
I-129	$460	$460	+$0
I-130	$535	$560	+$25
I-140	$700	$555	-$145
I-485	$1225	$1160	-$65
I-539	$370	$400	+$30
I-765	$410	$550	+$140

USCIS last raised their fees in 2016.  USCIS fees basically pay for the entire USCIS budget.  Very little of the USCIS’s budget comes from federal tax dollars.

USCIS’s budget has recently received news coverage, as the USCIS has indicated they are planning to furlough 13,000 workers due to a budget shortfall.  The USCIS has requested $1.2 billion in emergency funding from Congress.

HWRA ON THE SENATE FLOOR (VIDEO)

Sens. Perdue and Durbin make the case for the Healthcare Worker Resilience Act on the floor of the Senate. 

CLICK HERE (Scroll to 1:36)

USCIS SHORTENS H-1B APPROVALS BASED ON PROFESSIONAL LICENSES

In recently issued H-1B approval notices the USCIS has approved the H-1B for less than the requested 3 years. The USCIS has explained the H-1B was issued for less than 3 years because the employee’s professional license expired before the end of the 3 year H-1B term.

The USCIS is mistakenly interpreting a clause of the code of federal regulations to state that an H-1B approval notice can be shortened to the validity period of an employee’s permanent professional license, when the law clearly states the H-1B can only be shortened to the term of a temporary license.

It is crucial that employees closely monitor the expiration date of their professional licenses, along with other documentation required for the H-1B filing, and timely renew all documents. This includes the professional license, passport, and Visa Screen (FCCPT certificate or CGFNS Visa Screen).

States vary in their procedures for renewing professional licenses and the validity term of the professional license. In addition, the length of time a passport is issued for varies by country. Visa Screens are valid for 5 years from the date of issuance and can take several months to renew. All foreign nationals should closely monitor the expiration dates of their documents.

221g PROBLEM CONTINUES AT MANILA

The Manila Post continues to refuse to issue immigrant visas to nurses as has been the case since before the pandemic.   The Post issues 221g letters or outright denials.  

We had been given some assurance in the spring that the problem was solved but it has not.

We are trying to get Congressional action and agency action with the aim of solving the problem.  Unfortunately, it may take some time because we have to reengage our prior contacts. 

If you have been issued a 221g or a denial and would like to be involved please contact your I-140 petitioner.  The I-140 petitioner (US employer) can then contact Chris Musillo who is helping coordinate the effort.  We must have the US employer involved. 

AUGUST 2020 VISA BULLETIN: EB3 JUMPS ONE FULL YEAR

The Department of State has just issued the August 2020 Visa Bulletin. This is the eleventh Visa Bulletin of Fiscal Year 2020. This blog post analyzes this month's Visa Bulletin.

August 2020 Visa Bulletin

Table A: Final Action Dates -- Applications with these dates may be approved for their Green Card (Permanent Residency card) or Immigrant Visa appointment.

Employment- based	All Other	CHINA	INDIA	PHILIPPINES
1st	C	08FEB18	08FEB18	C
2nd	C	15JAN16	08JUL09	C
3rd	01APR19	15FEB17	01OCT09	01APR19

MU Law Analysis

This Visa Bulletin continued the big progressions that we saw in the June and July Visa Bulletins.  MU Law has been calling on the DOS to rapidly advance the dates so that all immigrant visas are used in 2020, and they finally responded in a big way.  The big story is the one-year progression Worldwide EB-3 and Philippines EB-3.  These EB-3 dates are now at April 2019.

The good news was not limited to those categories.  India EB-1 and India EB-3 also jumped forward.  EB-1 moved ahead ten months to February 2018, and EB-3 by five months, to October 2009.  Only India EB-2 disappointed, staying at July 8, 2009.  India EB-2 and EB-3 are inverted.  MU Law expects India EB-2 and EB-3 to move in sync for the foreseeable future.  EB-2s will downgrade their petitions to EB-3 to take advantage of the more favorable processing date, leading to an equilibrium between the two categories. 

All of the China categories moved forward as well, as expected in a year where few immigrant visa have been issued. 

MU Law expects the favorable employment-based visa dates to continue next fiscal year.  We explained why on this blog post.

PRESIDENT TRUMP RESCINDS GUIDANCE REQUIRING IN-PERSON CLASSES FOR FOREIGN STUDENTS

The Trump administration is rescinding its new guidance blocking international students from staying in the United States while taking only online classes.

The U.S. District Court Judge announced July 14, 2020 that the government and plaintiffs had reached a resolution in a lawsuit brought by Harvard University and MIT.

The Trump Administration will rescind its July 6 rule that said foreign students on F-1 visas would need to take at least some in-person courses in order to legally remain in the U.S. for the fall 2020 semester.

Seventeen states and the District of Columbia had sued the Trump Administration over the guidance.  The Trump Administration received heavy criticism from both colleges and universities as well as members of Congress for the policy.  Late last week 99 members of Congress sent a letter to the Department of Homeland Security and Immigration Customs Enforcement urging the agencies to withdraw the new guidance.

SEVP ANNOUNCES STUDENTS MAY NOT REMAIN IN THE US IF ENROLLED IN A FULLY ONLINE SCHOOL OR PROGRAM FOR FALL 2020 SEMESTER

On July 6, 2020, ICE’s Student and Exchange Visitor Program (SEVP), announced that for the Fall 2020 semester, it would prohibit F-1 students from attending fully online schools or programs and taking a full online course load in the United States. Students attending fully online schools or programs may only do so from outside the U.S., but can remain Active in the Student and Exchange Visitor Information System (SEVIS).

If a student is outside the U.S., he or she may not enter the U.S. on F-1 status if the student’s school or program is operating entirely online. This applies even if a student has already obtained a Form I-20 for the Fall 2020 semester.

A student may study in the U.S. if they transfer to a school that consists entirely of in-person classes or a hybrid model (combination of both in-person and online classes). However, the student must depart the U.S. or transfer again if the school changes to a fully online model at any point during the Fall 2020 semester. If students are not in compliance with the new guidance, deportation proceedings may be initiated against them.

By August 4, 2020, designated school officials (DSOs) must update and reissue ALL Form I-20s that have been issued for the Fall 2020 Semester to certify the school meets the requirements of the new guidance.

DHS will publish this rule shortly which could clarify some of the situations faced by students that are not addressed in ICE’s press release. In particular, the current guidance does not address the effect of the new guidance on students employed on Optional Practical Training (OPT).  On July 8, Harvard and MIT filed a lawsuit against DHS and ICE seeking a temporary restraining order of the new guidance, and on July 9, 99 members of Congress sent a letter to DHS and ICE urging the agencies to withdraw the new guidance.

FAQ REGARDING PRESIDENT TRUMP’S RECENT VISA BAN

President Trump issued a Presidential Proclamation stop the issuance of H-1B, L-1, J-1, and H-2B and dependent visa stamps at Embassies until December 31, 2020.  For a detailed analysis of the visa of the Proclamation and the visa classifications impacted, please review our previous blog post.

On our June 30, 2020 webinar we reviewed several situations in which visa holders may now find themselves due to the Proclamation.  Below is an FAQ to help employers and employees navigate travel and visa issues under the Proclamation.

Q: My employee is in the US on an H-1B right now.  The employee does not have a valid visa stamp in her passport.  Can the employee leave the US?

A: NO – H-1B workers who are in the US and do not have a valid visa stamp should not travel outside the US.  Without a valid visa stamp, the worker will not be allowed back into the US.

Q: I have a valid visa stamp in my passport.  Can I travel overseas?

A: YES – Those who are in the US and have a valid visa stamp can travel abroad, provided they return to the US before the expiration of their visa stamp.

Q: My employee is overseas and had an appointment at the Embassy to get a visa stamp in July 2020.  Will my employee be able to return to the US?

A: NO – Visa stamps in the effected categories will not be issued until after January 1, 2021, or perhaps later.

Q: My employee’s spouse and child are outside the US for their regular summer visit to their home country.  The spoues and child were able to visit the Embassy in May and obtain new visa stamps.  Will my employee’s spouse and child be able to return to the US?

A: YES - The spouse and child can enter the US if they have valid visa stamps in their passports.

Q: My employee is abroad right now and does not have a valid H-1B visa stamp in his passport.  However, he does have a valid B1/B2 tourist visa stamp in his passport, can he travel to the US on his B1/B2 stamp?

A: MAYBE - but this is not recommended.  The employee cannot work in tourist status so a change of status to H-1B would have to be filed once the employee enters the US.  The employee cannot return to work until this change of status is approved by the USCIS.

Q: My employee currently holds a green card.  She is outside the US and plans to return in July 2020.  Can she return on her green card?

A: YES – the April Proclamation exempts US Legal Permanent Residents from the ban.

Q: My company has filed a green card case for our future employee who is a nurse.  We are a staffing company and do not yet know at which of our client sites the nurse will be assigned to work.  Can the nurse enter the US?

A: MAYBE – Under current interpretation, the nurse may enter the US on a green card for any reason.  Later this summer, the Trump Administration may narrow the ban and require nurses to be treating patients who are currently hospitalized with Covid-19.

Q: My employee is currently in the US working for my company on OPT as an F-1 student.  My company has filed an H-1B for this employee which was selected in the H-1B lottery and is currently in process with the USCIS.  Will the H-1B be impacted by the ban?

A: NO – because this is a change of status from F-1 to H-1B, the employee will not be impacted.  However, the employee should not travel outside the US, as he will not be able to get an H-1B visa stamp and return.

Q: My employee is in the US on an H-1B and has no plans to travel.  Can I sponsor this employee for a green card?

A: YES – the there is no prohibition against filing green card cases from inside the US.  Employees can still “adjust status.”

Q: My employee holds an H-1B that will expire later this year.  Can I file an extension of the employee’s H-1B status?

A: YES – the there is no prohibition against filing for an extension, amendment, or transfer of an H-1B. 

WHAT DOES THIS NEW PRESIDENTIAL PROCLAMATION MEAN FOR MY EMPLOYEES?

MU Law will be hosting a free webinar for our clients and friends on Tuesday, June 30, 2020 at 2PM Eastern (1PM Central).
 

This webinar will discuss the NEW Proclamation issued by President Trump suspending entry of immigrants and nonimmigrants until the end of 2020. Interested clients and friends can register for our webinar by clicking on the link below.

REGISTER HERE

Your Questions Answered, including:

• What types of cases are impacted?
• My employee’s status expires this fall, can it be extended? Or will the employee have to stop working?
• What should I do if my employee needs to travel?
• What can I do if my employee is currently outside the US and needs to return?
• My employee’s spouse and children went home for summer vacation, will the family be allowed back into the US?
• Can I file a green card case for my employee who is in the US?
• Is my employee eligible for a waiver from the proclamation?

PLEASE JOIN US!

TRUMP ISSUES WIDE RANGING EXECUTIVE ORDER BANNING NEW LEGAL EMPLOYMENT BASED IMMIGRANTS UNTIL 2021

Last night, President Trump updated and expanded his April Presidential Proclamation that had banned legal immigrant visas for 60 days.  Last night’s ban extends the April legal immigration ban through December 31, 2020 and adds many temporary employment-based nonimmigrant visas, including H-1Bs, L-1s, J-1s, and H-2Bs. 

It seems certain that the President will be sued and so any information contained here is subject to the outcome of the lawsuits.

The ban effects many types of employment-based immigration, such as:

Green Cards (Immigrant visas) Consular Processing. 

All Consular Processing green cards continue to be banned, as they have been since April.  There are a few exceptions:

• Permanent Residents of the US;
• Healthcare workers and their immediate family members (including those family members traveling with the healthcare worker and those family members coming to the US at a later date);
• Other individuals coming to the US to perform work essential to combating, recovering from, or alleviating the effects of Covid-19 and their immediate family members (including those family members traveling with the healthcare worker and those family members coming to the US at a later date).
• Spouses and children of US Citizens;
• EB-5 investors;
• Individuals who are entering to assist law enforcement or who are members of the US Armed Forces;
• Special Immigrants in the SI or SQ Class and their family members; and
• Any person whose entry is in the national interest of the US as determine by the Secretary of State or Secretary of Homeland Security.

Green Cards (Immigrant visas) Adjustment of Status

No effect whatsoever.  Many Adjustment of Status interviews, of course, have been delayed because of COVID-19, although we have seen that the USCIS is approving some employment based green cards without an actual visa interview.

H-1B, L-1, J-1, and H-2B visas

• Beneficiaries approved for H-1B and L-1s will not be allowed to enter the US unless they currently have a valid visa stamp, even if they have an approved I-797.
• H-1B and L-1 visa stamps cannot be granted at embassies or consulates unless the H-1B or L-1 is for one of the exemption categories below. 
• If you have an H-1B or L-1 approval and you are in the US, you should not travel outside the US unless you already have a valid H-1B visa stamp in your passport and you intend to return to the US prior to the expiration of that visa stamp.
• H-1B and L-1 amendments, extensions, and transfers continue to be permissible.
• H-1B cap petitions that are based on a change of status (e.g. F-1 to H-1B) should be approved with a new I-94 card for the H-1B status.  The ban does not prohibit or effect the change of status, however, individuals changing status to H-1B should not leave the US after October 1 as they will not be able to return without a valid H-1B visa stamp.  
• Similar prohibitions apply to J-1 and H-2B visas, although the J-1 visa ban is limited to interns, trainees, teachers, camp counselors, au pairs, and summer work programs.  Other J-1s may obtain visas and enter the US.
• The ban also applies to the H-4, L-2, J-2 dependent classifications.  Spouses and children in the US as dependents should not travel abroad unless each family member has a valid visa stamp in their passport.  Dependents who are currently abroad will not be allowed to enter the US unless they currently have a valid visa stamp.

Exemptions to the H-1B, L-1, J-1, and H-2B nonimmigrant visa ban

The visa ban does not apply to:

• any lawful permanent resident of the United States;
• any alien who is the spouse or child of a United States citizen;
• any alien seeking to enter the United States to provide temporary labor or services essential to the United States food supply chain; and
• any alien whose entry would be in the national interest as determined by the Secretary of State or the Secretary of Homeland Security.

National Interest Entry Requests

The Proclamation allows for exemptions to the nonimmigrant visa ban if the Beneficiary is one of several categories deemed by DOS or DHS to be “in the national interest”.  It is expected that the DOS and DHS will issue details about these exemptions and the process to request an exemption.  The Proclamation’s named categories include those who:

• are critical to the defense, law enforcement, diplomacy, or national security of the United States;
• are involved with the provision of medical care to individuals who have contracted COVID-19 and are currently hospitalized;
• are involved with the provision of medical research at United States facilities to help the United States combat COVID-19;
• are necessary to facilitate the immediate and continued economic recovery of the United States; or
• are children who would age out of eligibility for a visa as a result of the visa ban.

EMPLOYMENT BASED IV QUOTA COULD INCREASE BY 60,000 IN FY 2021

The Department of State expects that there will be “significant advancement” in many categories, including all EB-1s and EB-5s, as well as EB-3 Worldwide and Philippines, starting in FY 2021 (October 2020 Visa Bulletin). This is terrific news for all EB IV applicants.

The news come from the Department of State’s Charlie Oppenhiem, who is always gracious with his time.  Charlie’s monthly AILA Q&As, Check In With Charlie, are always informative.  This month’s Check In contained many interesting answers, including answers to questions posed by MU attorneys.

Charlie expects that the Family-Based Immigrant Visa category will be underused by about 60,000 visas, as a result of slowdowns in processing related to COVID-19.  US law says that when the FB IV does not meet its quota, all of those visa flow into the Employment-Based category in the next fiscal year.  Therefore, Charlie expects the EB category to increase from 140,000 to about 200,000 visas in FY 2021. 

This means that the per country quotas, which are normally about 10,000 IVs, will increase to approximately 14,000 IVs per country.  It is this increase in EB visas that will lead to the dramatic progressions in October 2020.

Charlie also helpfully explained that while he could have progressed the Visa Bulletin more aggressively in June and July, he did not do so because “processing capacity at both consular posts and USCIS is diminished due to the pandemic.”  Therefore, Visa Bulletin progressions would not have meant increased visa umber usage and may have resulted in a future retrogression, which he tries to avoid.

JULY 2020 VISA BULLETIN: PROGRESS FOR PHILS AND WW EB-3

The Department of State has just issued the July 2020 Visa Bulletin. This is the tenth Visa Bulletin of Fiscal Year 2020. This blog post analyzes this month's Visa Bulletin.

July 2020 Visa Bulletin

Table A: Final Action Dates -- Applications with these dates may be approved for their Green Card (Permanent Residency card) or Immigrant Visa appointment.

Employment- based	All Other	CHINA	INDIA	PHILIPPINES
1st	C	22AUG17	08MAY17	C
2nd	C	08NOV15	08JUL09	C
3rd	15APR18	22JUN16	01JUN09	15APR18

MU Law Analysis

This Visa Bulletin continued the big progressions that we saw in the June Visa Bulletin.  MU Law has been calling on the DOS to rapidly advance the dates so that all immigrant visas are used in 2020.  Many visas appear that they will go unused without this progression. 

The Worldwide EB-3 dates moved almost six months are now at April 2018, as is the Philippines EB-3.  We continue to expect big progressions in these categories for the August and September VBs because very few visas were used due to the global shutdown caused by COVID-19.

The Indian EB-3 dates moved ahead two months.  It continues to move at a quicker rate than we have seen in years.  India EB-2 even advanced a month.  China EB-2 and EB-3 advanced by one week.  We might see continued progressions of a few weeks or months in these categories for the rest of the fiscal year.

The EB-1 movements were also reassuring.  As was the case last month, India EB-1 progressed another 10 months, reflecting reduced demand.  China EB-1 advanced by a week, as the DOS remains concerned about pending demand.  Limited progressions in EB-1 and EB-2 categories in the future could mean that more visa numbers flow down to EB-3, which would mean more advancement.

HWRA CO-SPONSOR LIST GROWS AND GROWS

Support for the Healthcare Workforce Resilience Act continues to grow.  In the Senate, co-sponsorship of S. 3599 has grown to 26 Senators.  Several others will be announced shortly.  Over one-quarter of all Senators in just a month.  Sen. Perdue (R-GA), Sen. Durbin (D-IL) and their teams deserve enormous credit for moving so quickly to garner support.

In the House, HR 6788 now has 29 co-sponsors.  In both chambers, the measure is entirely bipartisan.  Likewise, Rep. Schneider (D-IL) and Rep. Cole (R-OK) and their staffs merit great praise from the community.

Senate list of co-sponsors

House list of co-sponsors

USCIS REINSTATES PREMIUM PROCESSING

Beginning Monday, June 1, 2020, the USCIS will reinstate premium processing on certain applications.  Below is a list of case types and the date on which premium processing will be reinstated.

June 1 – All I-140s, except those on behalf of Multinational Managers / Executives and National Interest Waivers can be filed for or upgraded to premium processing.  (NOTE – I-140s on behalf of Multinational Managers / Executives and National Interest Waivers have never been allowed to file under premium processing.)

June 8 – Cap-exempt H-1B petitions that were filed before June 8 can be upgraded to premium processing.  Typical cap-exempt H-1B petitions include:

·        H-1B extensions

·        H-1B amendments

·        H-1B transfers

·       H-1B petitions filed on behalf of cap-exempt entities such as research facilities and universities.

June 15 – Cap-exempt H-1Bs filed on or after June 15 can be filed for premium processing

June 22 – All other H-1Bs petitions, including H-1B cap cases selected in April 2020 can be filed for or upgraded to premium processing.

US NURSING SUPPLY IS AT A CRISIS

Nursing supply was already at a tipping point before the COVID-19 crisis.  The US was struggling to satisfy rising demand in the face of a decade-long and acute nursing shortage, which was projected to balloon to 200,000 unfilled positions this year.  The COVID-19 crisis has exasperated an already overwhelming shortage.

The HWRA is legislation that will increase the supply of nurses and doctors into the US.  These two occupations are among the shortest supplied occupations by US workers.

The US nursing crisis will only get worse:

• While the crisis is abating in some areas of the country, a COVID-19 vaccine is not expected for 18 months.  Spikes in infection rates will continue until the vaccine is developed.  
• CDC Director Robert Redfield fears that the virus’s continued assault on our nation next winter could “actually be even more difficult than the one we just went through.” He continued, "and when I've said this to others, they kind of put their head back, they don't understand what I mean." 
• Likewise, during the 1918 Spanish Flu pandemic some areas in the country did not reach their peaks until the following November.  The second wave was much more deadly than the first wave.
• Infection peaks have not yet happened in most of the country.  Seven of the eight counties with the most infections are all in New York.  While New York appears to have finally hit its peak, that state is an outlier.
• Other countries have not yet reached an infection peak.  As international travel comes back on line, it is expected that US infection rates will re-emerge.
• Maldistribution of healthcare workers means that grave nursing shortages exist in some localities and specialties.  For instance, employers of dialysis nurses have seen their national shortage triple in the just eight weeks.  New York area hospitals are offering pay rates at 2 to 4 times a nurse’s usual salary, in an effort to attract nurses from other areas of the country.
• Nursing schools are forcing rushed graduations in an effort to put nurses immediately onto hospital rosters.  States are even waiving licensing requirements in an effort to get as many healthcare workers to work as quickly as possible.
• We know based on the experience of other countries that the coronavirus is a caregivers' illness. In Italy's Lombardy region, one of the country's hardest-hit, as much as 10 percent of all nurses and doctors have been infected and placed in quarantine.  Italy is now desperately calling on retried healthcare workers to join their fight.

JUNE 2020 VISA BULLETIN: PROGRESS FOR PHILS AND WW EB-3; EB-1

The Department of State has just issued the June 2020 Visa Bulletin. This is the ninth Visa Bulletin of Fiscal Year 2020. This blog post analyzes this month's Visa Bulletin.

June 2020 Visa Bulletin

Table A: Final Action Dates -- Applications with these dates may be approved for their Green Card (Permanent Residency card) or Immigrant Visa appointment.

Employment- based	All Other	CHINA	INDIA	PHILIPPINES
1st	C	15AUG17	08JUN16	C
2nd	C	01NOV15	12JUN09	C
3rd	08NOV17	15JUN16	01APR09	08NOV17

MU Law Analysis

This was another eagerly anticipated Visa Bulletin.  The DOS moved the Philippines and Worldwide EB-3 ahead by 10 months, which is encouraging.  The Indian and Chinese EB-3 dates moved ahead one month, which is also a promising sign. It would not surprise us to see another big progression in the July Visa Bulletin, especially for the Philippines and Worldwide EB-3s. 

The EB-1 movements were also reassuring.  India EB-1 progressed 10 months.  China EB-1 advanced by a month.  The Indian and Chinese EB-2 dates also moved ahead, with India progressing by 10 days and China by one month.  These progressions could mean that more visa numbers flow down to other categories.

MU continues to believe that the State Department should be accelerating these dates at a faster rate and will need to aggressively accelerate the dates in the next few months in order to ensure that all visas are used in fiscal year 2020.  We have said this for several months.  Very few immigrant visas have been issued in the last 60 days because of the COVID-19 crisis. 

Conspiracy rumors are out there.  Some are speculating that the White House is interfering and illegally holding back progressions. The State Department did not include any comments at the end of the Visa Bulletin.  This lack of transparency from the State Department is feeding the speculation.  At the very least the State Department should explain how it expect to use this year’s full allotment of immigrant visas.