"What makes someone American isn’t just blood or birth but alliance to our principles and faith in the idea that anyone—from anywhere, can write the next chapter of our history"
~Barack Obama
Premium Processing Fee Increase Effective Oct. 19, 2020

U.S. Citizenship and Immigration Services (USCIS) today announced it will increase fees for premium processing, effective Oct. 19th, 2020.

The USCIS premium processing service allows petitioners to pay an additional filing fee to expedite the adjudication of certain forms, generally within 15 days. The Act included the Emergency Stopgap USCIS Stabilization Act, which requires USCIS to establish and collect additional premium processing fees and to use those additional funds for expanded purposes.

Pub. L. No. 116-159 increases the fee for Form I-907, Request for Premium Processing, from $1,440 to $2,500, for all filings except those from petitioners filing Form I-129, Petition for a Nonimmigrant Worker, requesting H-2B or R-1 nonimmigrant status. The premium processing fee for petitioners filing Form I-129 requesting H-2B or R-1 nonimmigrant status is increasing from $1,440 to $1,500.

Any Form I-907 postmarked on or after Oct. 19 must include the new fee amount. If USCIS receives a Form I-907 postmarked on or after Oct. 19 with the incorrect filing fee, we will reject the Form I-907 and return the filing fee. For filings sent by commercial courier (such as UPS, FedEx, and DHL), the postmark date is the date reflected on the courier receipt.

Pub. L. No. 116-159 also gives USCIS the ability to expand premium processing to additional forms and benefit requests, but USCIS is not yet taking that action. Any expansion of premium processing to other forms will be implemented as provided in the legislation.
USCIS Issues Update on 2020 Fee Rule Preliminary Injunction

USCIS issued the following update, stating that: On Sept. 29, 2020, the U.S. District Court for the Northern District of California, in Immigration Legal Resource Center et al., v. Wolf, et al., 20-cv-05883-JWS, preliminarily enjoined DHS from implementing or enforcing any part of the USCIS Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements rule.

On September 29, 2020, a Federal district court enjoined, or stopped, DHS from using any part of the USCIS Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements rule scheduled to go into effect today. As a result of this preliminary injunction, USCIS announced that it will:

-Continue to accept USCIS forms with the current editions and current fees, not the updated forms or any of the new filing fees; and
-Use the regulations and guidance currently in place to adjudicate applications and petitions. This includes accepting and adjudicating fee waiver requests as provided under Adjudicator's Field Manual (AFM) Chapters 10.9  and  10.10.

The Ombudsman’s Office will continue to work on requests for case assistance regarding issues such as erroneous rejections. For additional information on filing fees, please see the USCIS website at https://www.uscis.gov/forms/filing-fees.
DOS Issues Visa Bulletin for October 2020

DOS posted the October 2020 visa bulletin. In addition to final action dates and dates for filing for family and employment-based petitions, it contains notes on the DV category, the DV category rank cut-offs which will apply in November, movement of the October final action and application filing dates, visa availability in the coming months, and the scheduled expiration of two employment categories, including the employment fourth preference certain religious workers (SR) and employment fifth preference categories (I5 and R5). The FY2021 annual limit for employment-based visas is approximately 261,500.

Note: On September 24, 2020, USCIS determined that for October 2020, F2A applicants may file using the Final Action Dates chart. Applicants in all other family-sponsored preference and employment-based preference categories must use the Dates for Filing chart.
New Rules Will Impact H-1b, E-3 & PERM Programs

On October 8th, the Department of Homeland Security (DHS) and the Department of Labor (DOL) are set to publish two interim final rules impacting the H-1B program and the prevailing wage system.

President Trump has made H-1B reform a priority in his June proclamation restricting the entry of H-1B, L-1 and certain J-1 nonimmigrants. The new DHS regulation, along with the Department of Labor affecting wage minimums for the H-1B and PERM programs, are the result of that proclamation.

The DOL rule, Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States, will change prevailing wage levels for Labor Condition Applications (LCAs) and Prevailing Wage Determinations (ETA-9141) for PERM applications. Specifically, the 4-level prevailing wage system will change from being set at the 17th, 34th, 50th, and 67th percentiles to the 45th, 62nd, 78th, and 95th percentiles (i.e., the new level-1 prevailing wage will be nearly as high as the current level-3 prevailing wage). This rule is set to take effect tomorrow, October 8th, and new wage levels will only apply to LCAs filed on or after the effective date, and PWDs pending or filed as of the effective date.

The DHS rule, Strengthening the H-1B Nonimmigrant Visa Classification Program, aims to clarify the definitions of “specialty occupation” and “employer-employee relationships” in order to “strengthen the integrity of the H-1B program,” while limiting the employment authorization of workers at third party sites to 1 year periods. As stated earlier, this rule will be effective 60 days after the publication date and will not apply to any pending or previously approved petitions.

An H-1B specialty occupation is one that normally requires a bachelor’s degree or equivalent as a minimum requirement. The new regulation tightens the regulatory definition of a specialty occupation to mandate that the bachelor’s degree requirement be more directly related to the specific H-1B specialty. The rule explicitly states that a position is not a specialty occupation if a general degree – such as business administration or liberal arts – is sufficient to qualify, without any further specialization.

The new regulation also removes an option that permitted a petitioning employer to establish that the required degree is common in the industry for the specialty occupation. The revised version requires the petitioner to establish that the required degree is the minimum requirement for entry into parallel positions at similar organizations.

The new regulation also adds definitions that distinguish a “worksite” from a “third-party worksite.” Under the rule, a worksite is the physical location where the work is actually performed by the H-1B worker and must conform to the U.S. Department of Labor LCA rules. A third-party worksite is a place “other than the beneficiary’s residence in the United States” that is not owned, leased or operated by the petitioner.

The rule also clarifies how USCIS will determine whether an employer-employee relationship exists between the H-1B petitioner and the beneficiary. The regulation draws from longstanding common-law factors and adds new elements such as whether the beneficiary produces an end-product that is directly linked to the petitioner’s line of business. It also includes commonly used elements such as right to control, supervise, hire and fire. USCIS’s former policy memorandum on the employer-employee relationship was invalidated by a federal court earlier this year. USCIS will also limit the H-1B validity period for third party worksite petitions to a maximum period of one year.

In addition USCIS’s Fraud Detection and National Security Directorate authority to conduct site visits only tightens. USCIS can conduct site visits before or after the approval of an H-1B petition, the authority to the authority to deny or revoke a petition as a result of a petitioner’s or third party’s refusal to cooperate with or permit a site visit and the authority to go to third party sites.
Proposed Rule Change to I-864 process

The DHS announced it will publish a notice of proposed rulemaking that would "increase the integrity of the nation's lawful immigration system in accordance with the May 2019 Presidential Memorandum on Sponsors of Aliens".

The Department of Homeland Security today announced it will publish a notice of proposed rulemaking that would increase the integrity of the nation’s lawful immigration system, make it easier to hold immigrant sponsors accountable for failing to meet the obligations of contracts they sign with the federal government, and align agency policy in accordance with the May 2019 Presidential Memorandum on Enforcing the Legal Responsibilities of Sponsors of Aliens.

“Reforming the immigrant sponsorship process will more effectively protect American taxpayers, ensure that aliens applying for permanent benefits don’t rely on public resources, and strengthen the accountability mechanism against those who fail to financially support aliens they sponsor,” said USCIS Deputy Director for Policy Joseph Edlow. “The department will continue to advance the president’s directive to properly enforce immigration laws and ensure the federal government is reimbursed should sponsored aliens receive public benefits, which is what Congress intended when they passed the relevant legislation.”

The proposed update would require American citizens, U.S. nationals and lawful permanent residents who choose to sponsor an immigrant by submitting a Form I-864, Affidavit of Support Under Section 213A of the INA, or Form I-864EZ, Affidavit of Support Under Section 213A of the INA, to provide credit reports and credit scores, certified copies of income tax returns for the last three years, and bank account information to effectively demonstrate they can maintain the required income.

Additionally, under the proposed rule, any petitioning sponsor found to have received means-tested public benefits within the last 36 months of submitting a Form I-864, or to have defaulted on previous obligations to support an immigrant, must be backed by a joint sponsor who has received no such public benefits during that time.

Other proposed changes include eliminating the subpoena requirement before USCIS can provide certain information to benefit-granting agencies and other parties authorized to pursue civil action against defaulting sponsors, and limiting the type/number of household members who can file a Form I-864A, Contract Between Sponsor and Household Member.

The Affidavit of Support process is required for most family-based immigrants and some employment-based intending immigrants to show that they have adequate means of financial support and are not likely to become a public charge.
USCIS Public Charge

USCIS updated its adjustment of status webpage on Sept. 22, 2020, to reflect that it is resuming implementation of its new public charge rule.

The announcement follows a decision on Sept. 11, 2020, by the Second Circuit Court of Appeals staying a previously issued injunction against implementation of the new rules. The adjustment of status webpage on the USCIS website now states that the public charge final rule and related guidance will apply to all adjustment applications filed on or after Feb. 24, 2020.

Additional information provided on the USCIS public charge injunction page states that the agency is now requiring the inclusion of the I-944 with the I-485 for those subject to the final pubic charge rule. Applicants who fail to submit the I-944 with applications received by USCIS after Feb. 24, 2020, and before Oct. 13, 2020, should expect to receive a Request for Evidence, or RFE, to submit the missing evidence. Adjustment applications received on or after Oct. 13, 2020, that do not include the I-944 will be rejected. Any adjustment application that was filed without the I-944 and approved during this period, however, will not be re-adjudicated.

The nationwide injunction against the State Department’s implementation or enforcement of its new public charge rule, as well as its use of the DS-5540, is still in effect.

SEVP modifies temporary exemptions for nonimmigrant students taking online courses during fall 2020 semester

WASHINGTON – The Student and Exchange Visitor Program (SEVP) announced modifications Monday to temporary exemptions for nonimmigrant students taking online classes due to the pandemic for the fall 2020 semester. The U.S. Department of Homeland Security plans to publish the procedures and responsibilities in the Federal Register as a Temporary Final Rule.

Temporary exemptions for the fall 2020 semester include:

1. Nonimmigrant F-1 and M-1 students attending schools operating entirely online may not take a full online course load and remain in the United States. The U.S. Department of State will not issue visas to students enrolled in schools and/or programs that are fully online for the fall semester nor will U.S. Customs and Border Protection permit these students to enter the United States. Active students currently in the United States enrolled in such programs must depart the country or take other measures, such as transferring to a school with in-person instruction to remain in lawful status. If not, they may face immigration consequences including, but not limited to, the initiation of removal proceedings.

2. Nonimmigrant F-1 students attending schools operating under normal in-person classes are bound by existing federal regulations. Eligible F students may take a maximum of one class or three credit hours online.

3. Nonimmigrant F-1 students attending schools adopting a hybrid model—that is, a mixture of online and in person classes—will be allowed to take more than one class or three credit hours online. These schools must certify to SEVP, through the Form I-20, “Certificate of Eligibility for Nonimmigrant Student Status,” certifying that the program is not entirely online, that the student is not taking an entirely online course load this semester, and that the student is taking the minimum number of online classes required to make normal progress in their degree program. The above exemptions do not apply to F-1 students in English language training programs or M-1 students pursing vocational degrees, who are not permitted to enroll in any online courses.

Schools should update their information in the Student and Exchange Visitor Information System (SEVIS) within 10 days of the change if they begin the fall semester with in-person classes but are later required to switch to only online classes, or a nonimmigrant student changes their course selections, and as a result, ends up taking an entirely online course load. Nonimmigrant students within the United States are not permitted to take a full course of study through online classes. If students find themselves in this situation, they must leave the country or take alternative steps to maintain their nonimmigrant status such as a reduced course load or appropriate medical leave.

Due to COVID-19, SEVP instituted a temporary exemption regarding online courses for the spring and summer semesters. This policy permitted nonimmigrant students to take more online courses than normally permitted by federal regulation to maintain their nonimmigrant status during the COVID-19 emergency.

F-1 nonimmigrant students pursue academic coursework and M-1 nonimmigrant students pursue vocational coursework while studying in the United States.
Executive Order Suspending Entry of Immigrants

On April 22, 2020, President Trump issued a proclamation “Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak.”

The proclamation went into effect April 23, 2020 at 11:59 PM (ET).

The proclamation suspends the entry of certain Immigrants into the U.S. for a period of 60 days from the effective date. Certain categories of individuals are exempt from the suspension including current lawful permanent residents, spouses and children (under 21) of U.S. citizens, and those with valid Immigrant Visas, among others.

The order does not affect the filing or processing of applications for Adjustment of Status (I-485 Applications) by U.S. Citizenship and Immigration Services (“USCIS”) in the U.S.

Nonimmigrant visa holders are not included in the President’s proclamation.

Clients should contact their BMK attorney with any questions regarding the impact of this Presidential Proclamation. General inquiries or requests to set up a consultation may be made using info@bmkllp.com or by calling (212) 686-3838.

Who is effected by the suspension?

The proclamation suspends the entry of any individual who seeks to enter the United States as an Immigrant who:

Is outside the United States on the effective date of the proclamation;
Does not have a valid Immigrant Visa on the effective date; and
Does not have a valid official Travel Document (such as a transportation letter, boarding foil, or advance parole document) on the effective date, or issued on any date thereafter that permits travel to the United States to seek entry or admission.
How long will the suspension last?

The proclamation will expire 60 days from its effective date. However, it may be continued as necessary.

Within 50 days from the effective date, the Secretary of the DHS will, in consultation with the Secretaries of State and the Secretary of Labor, recommend whether the President should continue or modify the proclamation.

Which categories of individuals are exempt from the suspension?

The following categories of individuals are exempted from the proclamation:

Lawful permanent residents (“LPR”);
Individuals and their spouses or children (under age 21) seeking to enter the U.S. on an Immigrant Visa as a physician, nurse, or other healthcare professional “to perform medical research or other research intended to combat the spread of COVID-19; or to perform work essential to combating, recovering from, or otherwise alleviating the effects of the COVID-19 outbreak, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees;”
Individuals applying for a visa to enter the U.S. under the EB-5 Immigrant Investor Visa Program;
Spouses of U.S. citizens;
Children of U.S. citizens under age 21 and prospective adoptees seeking to enter the U.S. on an IR-4 or IH-4 visa;
Individuals whose entry “would further important United States law enforcement objectives, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees, based on a recommendation of the Attorney General or his designee;”
Members of the U.S. Armed Forces and any spouse and children of a member of the U.S. Armed Forces;
Individuals and their spouses or children eligible for Special Immigrant Visas as an Afghan or Iraqi translator/interpreter or U.S. Government Employee pursuant to SI or SQ classification;
Individuals whose entry “would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.”
The consular officer shall have the discretion to determine whether an individual is within a category which is exempt from the suspension.

The proclamation states that individuals who circumvent the application of the proclamation through fraud, willful misrepresentation of a material fact, or illegal entry shall be prioritized for removal from the U.S. by DHS.

What other categories of individuals are not included in the proclamation?

Nonimmigrant visa holders are not included in the President’s proclamation.

However, the proclamation does state that within 30 days of the effective date, the Secretary of Labor and the Secretary of DHS are required to review nonimmigrant programs and recommend to the President “other measures appropriate to stimulate the United States economy and ensure the prioritization, hiring, and employment of United States workers.”

Asylum seekers are also not included in the suspension. The proclamation does not “limit the ability of an individual to seek asylum, refugee status, withholding of removal, or protection under the Convention Against Torture” consistent with U.S. law.

BMK will continue to provide updates regarding the implementation of the proclamation as more information becomes available.
NOTE: Immigration law changes frequently. The resources and information provided on this web site are intended to help you understand basic issues involved in the immigration process, and are offered only for general informational and educational purposes. This information is not offered as, nor does it constitute legal advice or legal opinions. Although we strive to keep this information current, we neither promise nor guarantee that the information is the latest available, or that it applies to your specific situation. You should not act or rely upon the information in these pages without seeking the advice of an attorney.
© 2020 SECKIN LAW | Practice Limited to Immigration Law | License in New Jersey and Minnesota

125 Park Avenue 25th Floor New York, NY 10017 Phone: (212) 520-1663 Fax: (425) 871-5874