On October 1, 2020, the U.S. District Court for the Northern District of California issued a preliminary injunction against the Department of Homeland Security and the U.S. Department of State’s implementation of Presidential Proclamation 10052. The injunction stops the agencies from barring certain non-immigrant visa holders (H-1B, H-2B, certain J-1 visa holders, L-1 visa holders) from entering the U.S. and orders these agencies to stop delaying the processing of these non-immigrant visas applications at the U.S. Consular Offices abroad. Unfortunately, the court limited the scope of the injunctive relief to the plaintiffs in the case (the U.S. Chamber of Commerce and a coalition of technology giants such as Apple and Google), thus the injunction does not cover everyone. We are awaiting guidance from the Department of Homeland Security and the U.S. Department of State on how they will proceed given the order.
On September 30, 2020, the Continuing Appropriations Act of 2021, was signed into law. This law funds the federal government through December 11, 2020. The bill includes provisions to help USCIS’ budget shortfall by increasing existing premium processing fees and expanding premium processing to cover additional types of cases. Even though the bill has been passed, USCIS will need to implement the new law before any changes to premium processing go into effect. Thus, at this time, there have not yet been any changes to USCIS’ premium processing service. Stay tuned…..there will be more to come!
The large increases to immigration filing fees, scheduled to go into effect on Oct. 2nd, 2020, have been blocked by a federal judge in California. Attorneys at Curray York & Associates will review the Court’s Order and prepare an update, but in the mean time, immigrants scrambling to file before the Oct. 2nd increase have been given a reprieve.
The USDOS announced significant advancement in the employment and family-based preference categories through the rest of 2020 and into 2021!
Visit the Department of State website for the October Visa Bulletin and updated visa availability dates.
Earlier this year, the Department of Homeland Security’s (DHS) rule on public charge inadmissibility went into effect, requiring the use of Form I-944 Declaration of Self-Sufficiency for adjustment of status applicants in deciding whether the applicant is inadmissible based on public charge grounds. Subsequently, a U.S. District Court imposed a nationwide injunction halting implementation of the public charge rule during the COVID-19 national health emergency. The result of the injunction was that applicants for adjustment of status to permanent residence were not required to submit the Form I-944.
On August 12, 2020, the Second Circuit Court of Appeals limited the scope of the injunction to just three states- New York, Connecticut, and Vermont. This means that the government may resume implementation of the public charge inadmissibility rule everywhere outside of those states, which includes requiring adjustment of status applicants to submit Form I-944. We had been hoping for some clarification from USCIS subsequent to the Court of Appeals’ decision. Unfortunately, clarification has not come and we don’t know if it will.
It is difficult to know how to advise clients when many questions remain. However, we believe the safest approach is for applicants residing in states other than New York, Connecticut, and Vermont to prepare and file the I-944 with adjustment of status applications.
The attorneys at Curray York & Associates will continue to closely monitor the situation and provide updates when possible.
Employment-Based USCIS Filing Fees Effective October 2, 2020
|Immigration Form||Current Fee||New Fee Effective 10/02/20||Difference in Cost||Percent Change|
|I-129H1, Petition for Nonimmigrant Worker: H-1 Classification (H-1B, H-1B1)||$460||$555||+$95||+21|
|I-129L, Petition for Nonimmigrant Worker: L Classification (L-1A, L-1B, Blanket L)||$460||$805||+$345||+75|
|I-129E&TN, Petition for Nonimmigrant Worker: E or TN Classification||$460||$695||+$235||+51|
|I-129O, Petition for Nonimmigrant Worker: O Classification||$460||$705||+$245||+53|
|I-539, Application to Extend/Change Nonimmigrant Status (paper filing)||$370||$400 ($390 for online filing)||+$30||+8|
|I-140, Immigrant Petition for Alien Workers||$700||$555||-$145||-21|
|I-485, Application to Register Permanent Residence or Adjust Status||$1,140 including EAD and AP* (the $85 biometrics fee is currently charged separately)|| $1,130 |
Separate fee for EAD and AP (the biometrics fee is eliminated)
|I-485*, Application to Register Permanent Residence or Adjust Status for applicant under the age of 14||$750||$1,130||+$380||+51|
|I-765, Application for Employment Authorization||$410||$550||+$140||+34|
|I-765, Application for Employment Authorization (Deferred Action for Childhood Arrivals (DACA))||$410||$410||$0||0|
|I-131, Application for Travel Document||$575||$590||+$15||+3|
|N-400, Application for Naturalization (paper filing)||$640||$1,170 ($1160 for online filing)||+$530||+83|
*USCIS is decoupling the I-485 application for permanent residence and the related applications for the I-765 employment authorization document and I-131 advanced parole travel documents. Currently, there is a single combined filing fee for all of these to be submitted together and the USCIS does not charge an additional fee for renewals of the I-765 and I-131 as long as the I-485 is pending. Effective October 2, 2020, there will be separate government filing fees for all I-765 and I-131 applications.
In May 2020, U.S. Citizenship & Immigration Services (USCIS) reported a massive funding shortage that threatens the agency’s operations. USCIS is primarily funded by application fees, which have dramatically fallen this year for a number of reasons, including the COVID-19 pandemic, as well as the implementation of unnecessary and inefficient policies like requiring in-person interviews for all employment-based cases and not giving deference to prior adjudications. USCIS has asked Congress for a $1.2 billion dollar bailout which it intends to repay by imposing a 10% surcharge on most immigration-related applications and petitions. Without the bailout, USCIS asserts that it will not have sufficient funds to maintain its operations through the end of the fiscal year (September 30, 2020) and that it will not have enough funds for the first quarter of FY2021. USCIS has begun issuing furlough notices to its employees and estimates that it will need to furlough approximately 13,400 employees (70% of the USCIS workforce) starting August 3, 2020 if Congress does not grant its funding request. If USCIS furloughs its employees, we anticipate even longer processing times, as well as more inconsistent and error ridden adjudications. We hope that the agency’s request for funding is granted along with safeguards to ensure that USCIS institutes policies and procedures to ensure quality adjudications in an efficient and cost-effective manner.
On June 30, 2020 Presidential Proclamation 10052 was amended to clarify that individuals (and their dependents) outside of the United States are suspended from seeking entry as an H-1B, H-2B, J-1, or L-1, unless they had a valid H-1B, H-2B, J-1, or L-1 nonimmigrant visa on June 24, 2020 or are eligible for an exemption. For example, an individual outside the U.S. with a valid B-1 visa on the day of the proclamation would be barred from receiving an H-1B, H-2B, J-1, or L-1 visa until the end of the year.
On June 24, 2020, DHS confirmed that the H, L, and J entry ban announced on June 22, 2020 does not apply to Canadian citizens. However, the U.S./Canadian border restrictions remain in effect until July 22, 2020 and the U.S. Consular Offices in Canada remain closed. At this time, there has been no announcement regarding the reopening of routine visa services at the U.S. Consular Offices in Canada. Nor do we know whether the current U.S./Canadian border restrictions will be extended into August.
The information in this FAQ is general in nature and does constitute legal advice.
When does this proclamation take effect? June 24, 2020. Except the portion extending the suspension of immigrant visas which took effect June 22, 2020.
Till when is this order in effect? Until December 31, 2020. It is also eligible for extension and is to be reviewed for changes and/or extension every 30 days.
To whom does this order apply? It applies to non-permanent resident foreigners who are outside the U.S. at the time it takes effect.
NON-IMMIGRANT APPLICANTS (THOSE SEEKING STATUS SUCH AS H-1B, L-1, TN, J-1, ETC.)
How does this order affect foreigners seeking to come to the U.S. to work temporarily? The order bars entry into the U.S. of those seeking to come to work. in H-1B, H-2B, L-1A, and L-1B status unless they already had a visa of the corresponding type at the time the order took effect, June 24, 2020. It also bars entry of J-1s seeking to work in the U.S. as an intern, trainee, au pair, teacher, camp counselor or in a summer work travel program. It also bars the entry of family members of those barred who would be seeking to enter in H-4, L-2 or J-2 status.
Does it prohibit the issuance of a visa to such individuals or just the entry into the U.S.? The order specifically states that it bars entry of such individuals who did not have a visa prior to the time the order took effect. However, the order also states that it will be a consular officer’s decision whether a visa applicant for meets an exception and is therefore eligible for a visa. Reading these statements together, we believe the order bars the issuance of visas to individuals in the specified categories of H-1B, H-2B, L- 1, H-4, L-2, and certain J-1 and J-2. Additionally, it is important to note that at the time of preparing this FAQ, regular visa services have been suspended at U.S. consulates throughout the world which are open only for emergency situations, and a foreign worker needing to get a visa is not an emergency unless that worker meets one of the exceptions (e.g., medical researcher working in U.S. to combat COVIID-19). As such, though the order does not expressly say that it prohibits issuing specific visas, as a practical matter, such visas will not be issued.
FOREIGN WORKERS CURRENTLY IN THE U.S.
I am in the U.S. lawfully and need to change my status to H-1B, H-2B, or L-1; or I hold such status and need to extend it. Does this order affect that change or extension of status? No. Individuals lawfully in the U.S. who are eligible to change their status to H-1B, H-2B, or L-1, or the dependent statuses of H-4 or L-2, are not affected by this order and may continue with the process to change or extend status in the U.S.
I am lawfully in the U.S. in H-1B, L-1, H-2B, H-4, or L-2 status, but do not have a valid visa in my passport. Can I leave the U.S., obtain a visa and reenter the U.S.? The language of the order is conflicting. It says it only applies to those who are outside of the U.S. on the day it took effect, but there is sufficient language in it for us to believe that it bars all individuals from obtaining visas in these categories, and therefore, reentering the U.S. Additionally, as noted above, regular visa services are currently suspended throughout the world. Therefore, any individuals who hold the specified statuses, should carefully consider if a trip outside the U.S. is absolutely necessary, because it is highly likely that such individuals will not be able to return before year end, and possibly longer. Additionally, we do not have a way to help those who are stuck outside the U.S. return to the U.S.
I have applied or am eligible to apply for an employment authorization document (EAD). Does this order affect my EAD application or eligibility? No.
I’m a Canadian in the U.S. in L-1/L-2 status. Since I do not need a visa to reenter the U.S., am I safe to leave the U.S. and reenter? Sadly, we do not know. We are awaiting clarification on this point since the order does not expressly address it. As an individual who already holds L-1 or L-2 status and is in the U.S., we believe you should be able to leave and re-enter the U.S., assuming there is no other travel ban in place that effects your entry into the U.S. However, we caution all who are in this situation that they leave the U.S. at the risk of not being able to return until after the end of the year.
INDIVIDUALS OUTSIDE THE U.S. WHO ARE NOT SPECIFICALLY MENTIONED IN THE ORDER
I am a Canadian seeking to enter the U.S. in H, L or J status, will I be able to enter? The USCBP has clarified that the order does not apply to Canadians entering the U.S. in the restricted categories. As such, once travel restrictions at the U.S. – Canada border due to the pandemic are lifted, you should be able to enter the U.S. We recommend entering at the U.S. – Canada border as USCBP officers elsewhere may not be trained on this issue.
Can individuals outside the U.S. enter in other non-immigrant statuses to work in the U.S.? The order does not bar entry for those seeking to enter in other statuses, including E-1, E-2, E-3, O-1, R- 1 and TN. However, those seeking to enter another status, except Canadians seeking TN or O-1, must first obtain a visa to travel to the U.S. Since regular visa services are currently suspended at consulates across the world, it would be difficult for individuals to obtain a visa in one of those statuses. At this point, we believe that Canadians who are eligible to enter in TN or O-1 status may do so.
PERMANENT RESIDENCE / GREEN CARDS / IMMIGRANT VISAS
How does this order affect those applying permanent residence? It extends the order issued April 22, 2020 with respect to those seeking to come to the U.S. as immigrants, until the end of 2020.
Are all individuals applying for green cards or wanting to apply for green cards affected? No. The bar on immigrants only applies to those seeking immigrant visas at a U.S. consulate abroad. It does not apply to individuals in the U.S. who apply to adjust status to permanent residence.
I am in the U.S. and applying for permanent residence or about to apply. Can my application move forward? Yes. As long as your last step of permanent residence is applying to adjust status from your current non-immigrant status (H-1B, H-4, E-3, etc.) to that of a lawful permanent resident (green card holder / immigrant), you are eligible to continue your application (I-485).
I am in the U.S. applying for permanent residence but my spouse (and child) is outside the U.S. and will need an immigrant visa. Will my spouse (and child) be able to continue that process? At this point in time, no. At least until the end of 2020, issuance of immigrant visas is suspended unless the individual meets one of the exceptions.
I am in the process or about to start the process to apply for permanent residence. How can I speed up my permanent residence application? Unfortunately, permanent residence generally cannot be sped up. Some I-140 petitions, which is Step 1 or 2 depending on your application pathway, can be filed with premium processing but none of the other steps are eligible for premium processing.
I have heard that some colleagues who were getting close to having their applications for permanent residence adjudicated have had them held by USCIS because USCIS is not issuing green cards due to the ban. Is this true? USCIS has, in some cases, held up the issuance of green cards because it has interpreted the order to mean that green cards cannot be issued. This is not our interpretation of the order and the American Immigration Lawyers Association is working with USCIS to resolve this issue. Please note that even subsequent to the April 22 order, suspending the issuance of immigrant visas, that we have had applications for permanent residence approved and have had clients receive their green cards. As such, there is confusion in this area, and we hope it is resolved soon.
What are the exceptions, or who would be eligible to enter the U.S. in one of the barred non- immigrant categories such as H-1B? Only those coming to work in the U.S. in an area of the national interest. These include those coming to work in roles to combat COVID-19, roles which are essential to economic recovery or roles critical to national security. The order is silent regarding family members of such individuals. Children who would turn 21 and thereby lose visa eligibility are also excepted.
Who is excepted from the ban on issuance of immigrant visas? The list is long but exceptions are primarily for those related to U.S. citizens, permanent residents, or members of the armed services, or those seeking a visa to enter the U.S. to work in an area in the country’s national interest.
Where can I get further updates? This is the latest information as of June 24, 2020. We will post new information to our website www.cyavisalaw.com.