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. Since then, the legal status of the public charge rule has been in limbo, as nationwide injunctions have halted implementation of the public charge rule only to have the injunction’s scope limited in the same week and completely reversed the week after. The amount of uncertainty surrounding the public charge rule has made it difficult to know how to advise clients.
Most recently, on December 2, 2020, the Ninth Circuit Court of Appeals upheld preliminary injunctions issued against the rule that were issued by the Northern District of California and the Eastern District of Washington. At this time, it remains unclear whether the preliminary injunction applies nationwide in scope or if it only applies to the plaintiff states (CA, DC, ME, OR, PA, WA, CO, DE, IL, MD, MA, MN, NV, NJ, NM, RI, HI). As of December 8, 2020, USCIS has not yet decided how to implement the state-specific injunction and has not updated its guidance since November 4, 2020. For now, we believe that the safest approach is 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.
Upcoming Immigration Filing Fees Increase Blocked
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.
A True October Surprise – U.S. Immigrant Visas Available
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.
DHS Public Charge Updates
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 Fee Changes
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) | -$10 | -1 |
| 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.
USCIS Temporarily Closing Offices to Public
USCIS has announced that it will close all field offices, asylum offices, and Application Support Centers to the public until at least April 1 in an effort to slow the spread of the coronavirus COVID-19. All scheduled interviews will be canceled and new interview notices will be sent out at a later date when they are rescheduled. Individuals with InfoPass appointments will need to reach out to the USCIS Contact Center to reschedule their appointments.
Below is the full announcement from USCIS:
Effective March 18, U.S. Citizenship and Immigration Services is suspending in-person services at its field offices, asylum offices and Application Support Centers (ASCs) to help slow the spread of Coronavirus Disease 2019 (COVID-19). This suspension of services will be effective until at least April 1. In the meantime, USCIS will provide limited emergency services. Please call the Contact Center for assistance with emergency services.
USCIS field offices will send notices to applicants and petitioners with scheduled appointments and naturalization ceremonies impacted by this closure. USCIS asylum offices will send interview cancellation notices and automatically reschedule asylum interviews. When the interview is rescheduled, asylum applicants will receive a new interview notice with the new time, date and location of the interview. When USCIS again resumes normal operations, USCIS will automatically reschedule ASC appointments due to the office closure. You will receive a new appointment letter in the mail. Individuals who had InfoPass or other appointments must reschedule through the USCIS Contact Center once field offices are open to the public again. Please check to see if your field office has been reopened before reaching out to the USCIS Contact Center.
Education and precautions are the strongest tools against infection. Get the latest facts by visiting the Centers for Disease Control and Prevention’s COVID-19 website. Continue to practice good health habits, refrain from handshakes or hugs as greetings, and wash hands and clean surfaces appropriately.
USCIS will provide further updates as the situation develops and will continue to follow CDC guidance. Please also visit uscis.gov/coronavirus for updates.
SCOTUS Convenes for a New Term, Expected to Rule on DACA
The Obama Administration created Deferred Action for Childhood Arrivals, or DACA, program, in 2012 to establish protections for children who were brought to the U.S. without proper immigration documentation. The program was available for undocumented foreign nationals who met certain requirements, including having arrived in the United States prior to 2007 when they were under the age of 16. Since the program’s inception, nearly 800,000 individuals have acquired status under DACA, which does not offer a permanent path to remain in the United States but protects those individuals from immediate deportation.
In September 2017, despite broad and longstanding bipartisan support for codification of the program’s protections, the Trump Administration announced that it would shut down the program entirely. President Trump argued that the program was illegal in the first place and that allowing undocumented individuals work authorization would undercut native-born Americans by usurping jobs and driving down wages. The president’s actions were swiftly met with several lawsuits, resulting in three nationwide injunctions by federal district courts. Individuals who currently have or have previously had DACA have been able to continue to renew their status in the meantime. In FY2018, USCIS processed approximately 332,500 requests for DACA renewals.
The Supreme Court announced in July that the justices will review the dispute over the termination of the DACA program. With the new term convening this week, the Justices have scheduled to hear oral arguments in November. The case purports to decide two fundamental questions: 1) If the decision to terminate the DACA program is a decision the Court can review at all, and 2) If so, whether the decision to terminate the DACA program is legal. A decision on the case is expected no later than July 2020.
Students Protest Software Company Over ICE Contract
Over 1,200 students from more than 17 colleges, including Yale, Stanford, Harvard, and the University of California-Berkley, are pledging not to work for software company Palantir over its contract with Immigration and Customs Enforcement (ICE). Palantir has come under recent criticism for providing data-mining software for ICE’s Investigative Case Management system, which is used in workplace raids and deportations. Palantir, who has worked with ICE since 2014, has an estimated $51 million contract with the immigration enforcement agency.
The advocacy campaign, called No Tech For ICE, is specifically targeting Palantir’s recruitment efforts on university and college campuses. “Without these corporate partnerships, Palantir’s recruitment efforts and future growth would stall,” the campaign said in a statement.
Earlier this month, Palantir’s CEO, Alex Karp, authored an op-ed defending the company’s position, stating, “[i]mmigration policy is not a software challenge; it’s a political one. . .[t]he solution lies with our political and judiciary system, not with Silicon Valley’s C-suite.”
Palantir, along with Microsoft, Amazon, Dell, and others, have faced criticism in recent months as part of a growing effort to call out companies for doing business with immigration enforcement agencies.
DHS Proposes Rule to Charge H-1B Cap Registration Fee
On September 4, 2019, The Department of Homeland Security (DHS) published a notice of proposed rulemaking in the Federal Register that would amend current regulations to require petitioners filing an H-1B cap-subject petition to pay a registration fee. The rule proposes that U.S. Citizenship and Immigration Services (USCIS) would charge a $10 fee for each registration submitted. According to DHS, the purpose of the fee is to offset the cost of the H-1B cap registration system, but also to “deter frivolous [H-1B cap] registrations.”
The notice and comment period for the proposed rule was shortened to 30 days (instead of the usual 60) to allow for the requirement to be finalized before the new electronic registration system goes into operation. Accordingly, written comments on the rule must be submitted on or before October 4, 2019, and can be submitted to:
Federal eRulemaking Portal: http://www.regulations.gov. Follow this site’s instructions for submitting comments.
Mail: Samantha Deshommes, Chief, Regulatory Coordination Division, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue NW, Mailstop #2140, Washington, DC 20529-2140. To ensure proper handling, please reference DHS Docket No. USCIS-2019-0006 in your correspondence. Mail must be postmarked by the comment submission deadline. Please note that we will not accept any comments that are hand delivered or couriered. In addition, we will not accept any comments that are on removable media (e.g. thumb drives, CDs, etc.). All comments that are mailed must be addressed as specifically written above.
This rule is only a proposal and is not yet in effect. The attorneys at Stern & Curray will provide updates as more information becomes available.
Canada is a Haven for Global Tech Companies
While the U.S. gets stricter on employment immigration, entrepreneurs choose to set up shop in Canada instead.
Everyone always seems to be concerned about the health of the economy, and rightfully so. As a country, we would all like to see our economy do better, and one way to do that is by providing a welcoming environment for tech companies to grow.
Tech companies are a hotbed for innovation and development. They hire a lot of skilled workers, who in turn generate new business and create new jobs, both within and outside of the tech industry. In the tech sphere, the best way to find the right people for the job is by bringing in professionals from around the globe.
Fortunately for our neighbors to the north, tech companies are now finding Canadian immigration policies to be much better suited to their business needs. In the meantime, the United States is losing out on some of these opportunities.
The U.S. used to be the center for entrepreneurial activity back in the 90s, when 95%of start-ups around the globe began here. Now that number has been cut in half, with no expected increase in sight. So why are more tech companies choosing Canada over the U.S.?
Economists and executives in the tech industry are saying that tough stances on immigration and increased backlogs for skilled worker permits pose a challenge to the start-up industry in the United States. Businesses want clarity and efficiency on what the work authorization process looks like—two words that are rarely associated with the U.S. immigration system. In fact, processing times for some work permits have doubled since 2014, and denial rates for H-1B temporary work visas have increased by 18% since 2015.
Meanwhile, in the past few years, Canada has been in the process of revamping its immigration system, adding new programs that are designed to attract business and skilled professionals. In 2017, Canada implemented the Global Skills Strategy program that allows businesses with offices in Canada to get their skilled worker visa applications processed in just two weeks. These workers can soon after apply for permanent residency, and can usually become citizens in just three years. In contrast, obtaining permanent resident status alone can take more than 10 years in the U.S. The program also allows applicants’ spouses to obtain work permits, making a move to Canada more feasible for prospective employees.
In 2018, Canada began its Start-Up Visa Program, which allows immigrant entrepreneurs to live and work in the country, as long as they have secured enough funding to support their businesses. Here in the U.S., we have a similar system called the International Entrepreneur Rule, but the Department of Homeland Security is currently planning on removing the program due to concerns that it doesn’t adequately project American workers.
Even giant companies are diverting workers to Canada to take advantage of the country’s streamlined business immigration policies. For example, in addition to sending more and more foreign skilled workers to Canada, Amazon is planning on expanding its presence in Vancouver, creating 3,000 new jobs in its new downtown office alone. Creating tech jobs isn’t where potential economic growth stops, either. Researchers have found that for every new high-paying tech job, five more jobs are created as a result, which include positions outside the tech industry.
For America, what used to be a great place for entrepreneurs to get started is now full of delays and barriers to global business immigration. Canada’s policies are faster and more clear-cut, and its goal of increasing its immigrant population is expected to account for about a third of the increase in the nation’s GDP by 2021. All immigrants, not just skilled workers, are good for business, and the U.S. could stand to take a page out of Canada’s playbook as we look for new ways to facilitate economic growth.