Ever wondered what immigration court proceedings sound like? Have a listen to the April 28th episode of the NPR podcast “Embedded.”
On its face, the immigration system can look a lot like the criminal justice system: prisons, courts, judges, prosecutors. But the rules are different and the details are often hard to access. Today we go inside an immigration courtroom to follow the story of one man and his family.
USCIS recently proposed a substantial increase in immigration filing fees, which will likely go into effect this summer. After a review of operating costs, USCIS found that current filing fees are too low to cover the cost of the services it provides, leaving the agency with an annual shortfall of $560 million. Approximately 95 percent of USCIS funding comes from filing fees collected from applicants and petitioners, with the remaining 5 percent covered by discretionary appropriation from Congress.
The highest fee increases will apply to employment-based filings, such as a 42 percent increase for filing Form I-129 for H-1B professionals and L-1 intracompany transfers (from $325 to $460), and a 21 percent increase for filing Form I-140 to petition a nonimmigrant worker for permanent resident status (from $580 to $700). The most significant increase, however, would be to the EB-5 visa program for immigrants investing at least $1 million in the United States and creating at least 10 jobs for U.S. workers. The filing fee for the corresponding Form I-526 will increase by 145 percent, from $1,500 to $3,675. Fees will also increase substantially for EB-5 Regional Centers, which are U.S. entities that petitioners may invest in to indirectly satisfy the job creation requirement. The proposed change will increase the initial filing fee to designate these regional centers from $6,230 to $17,795, and will create a new annual fee of $3,035. Fees for many family-sponsored petitions and other benefits will also increase under the proposed rule, such as filings for employment authorization, advanced parole, and reentry for permanent residents. Premium processing fees, however, will remain at $1,225.
Interested stakeholders may submit comments on the proposed rule until July 5, 2016.
The I-9 Form that employers use to verify work authorization in the United States expired on March 31, 2016. However, according to U.S. Citizenship and Immigration Services, U.S. employers should continue to use the recently expired I-9 Form until the new “Smart” I-9 Form becomes available.
U.S. Citizenship and Immigration Services is currently working on the implementation of a “Smart” I-9 Form. This new “Smart” I-9 Form is designed to reduce error and make the form easier to complete. In particular, the new “Smart” I-9 Form will contain new drop-down menus, error messages, and field checks, among other enhancements, to help ensure accurate data entry for employment verification.
At present, the “Smart” I-9 Form is in the notice and comment stage of rule making where U.S. Citizenship and Immigration Services publishes the document and any proposed changes to the Federal Register and gives the public 30 days to comment. The notice and comment period is scheduled to be concluded on April 27, 2016. Thereafter, once U.S. Citizenship and Immigration Services considers the public’s comments, the new “Smart” I-9 Form will be sent to the Office of Management and Budget for approval and publication. Once approved, employers should begin to use the new “Smart” I-9 Form which will be available for download at: www.uscis.gov.
On April 7, 2016 U.S. Citizenship and Immigration Services (“USCIS”) announced that it had received more than the statutorily allowed number of H-1B petitions for fiscal year 2017. As such, USCIS will no longer accept H-1B petitions for this fiscal year. In the one week that USCIS accepted H-1Bs the agency received more than 236,000 H-1B petitions. Under the law a maximum of 65,000 H-1B petitions may be issued per year, in addition to a limit of 20,000 H-1B petitions filed under the Master’s Cap for those with advanced degrees from U.S. colleges and universities.
Since the H-1B Cap has been closed, USCIS performed the random computer-generated lottery process to select which H-1B petitions will be counted under the Cap. In the coming weeks USCIS will reject and return all unselected H-1B petitions with their filing fees. Those who received an H-1B Cap number will begin to receive receipt notices. USCIS will continue to accept H-1B Cap exempt petitions.
Starting April 1, 2016, E-Passports are required for all non-citizens who plan to travel to the United States on the Visa Waiver Program. E-Passports are enhanced security passports that have a machine-readable zone on the front biographic page that has a digital chip which contains the identity information of the traveler. E-Passports are being required by the Visa Waiver Program because they increase security, provide greater protection against tampering, and protect against fraud. Non-citizens seeking to enter the U.S. on the Visa Waiver Program can obtain an E-Passport from the standard passport issuing authority.
A study recently released by the National Foundation for American Policy has found that more than half of startups in the United States that are valued at more than $1 billion are founded by immigrants. In addition, the study found that in 71% of these $1 billion startups immigrants occupy important management and product development positions. While the majority of foreign entrepreneurs who have founded $1 billion startups in the United States hail from India, nationals from Canada, the United Kingdom, Argentina, and Singapore also made the list.
At present, there are only a select few visas that allow entrepreneurs to come to the United States for work. Business and work visas are limited, with the ever-popular H-1B visa being a challenge for many to attain due to the limited number of visas available each fiscal year (65,000 plus 20,000 for the Masters CAP). According to the report by the National Foundation for American Policy, the $1 billion startups in the United States owned by immigrants currently employ more than 33,000 people and are valued at a combined $168 billion. Given the success of these companies, supporters argue that United States immigration laws should be updated to provide for an easier path for foreign entrepreneurs to come to the United States. To learn more about what visas are available for entrepreneurs in the United States please schedule a consultation with one of our attorneys.
For years, immigration detention centers at Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) have been criticized by immigration attorneys and activists for their sub-standard and inhumane conditions. In particular, immigration attorneys, activists, and detainees regularly complained of inadequate showers, toilets, food, bedding, and access to medical care, among other complaints. Overcrowding, cold temperatures, and restricted access to telephone calls and visitation have also been significant problems. It has long been the practice of the Department of Homeland Security to allow immigration detention centers to exist largely free from accountability for these deplorable conditions. However, in a recent announcement, the Department has stated that it will now begin conducting random inspections of CBP and ICE immigration detention facilities in order to ensure compliance with governmental health and safety standards for detention facilities. Also of importance, the results of these inspections are to be made available to lawmakers and the public. This is a step forward for ensuring agency transparency and accountability as well as for making sure that the basic needs of detainees in immigration detention are met.
Certain F-1 students will now be able to extend their optional practical training period (OPT) by 24 months under a new final rule published by the Department of Homeland Security on Friday. This extension will allow STEM graduates to supplement their academic knowledge with practical workplace experience. The rule also includes requirements for the employer to protect the integrity of the training program and safeguard U.S. workers from any adverse effects.
The new 24-month OPT extension is only available to F-1 students who have earned a qualifying STEM degree from an accredited school in the United States. The specific fields of study that qualify as a basis for a STEM extension can be found on the Department of Education Classification of Instructional Program Categories. Students may use a previously-earned STEM degree to apply for the extension, but the STEM degree must be from an accredited U.S. school certified by SEVP to receive F-1 students, and the student’s most recent degree must also be from an accredited and SEVP-certified school.
Apart from the degree requirement, the rule also places requirements on the employers. Specifically, all STEM OPT employers must participate in DHS’s E-Verify program, and the employer must incorporate a formal mentor and training program that includes concrete learning objectives and oversight. In an effort to guard against any adverse effects on U.S. employees, employers will also be required to attest that 1) the employer has the resources and personnel to provide training and mentoring, 2) none of the employer’s full- or part-time U.S. workers will be terminated, laid off or furloughed as a result, and 3) the student’s opportunity assists the student in attaining his or her training objectives. Additionally, both the student and the employer will be required to report any changes in employment status or material changes to the student’s training plan to their designated school officials. Finally, the rule clarifies that DHS may conduct employer site visits to verify whether employers are meeting the program requirements.
Normally, F-1 nonimmigrant student must return to their home country upon completion of their studies. The OPT program allows F-1 students to remain and work in the United States after completing their degree. This employment period is intended to supplement the student’s formal education and provide valuable on-the-job workplace experience. The OPT program is available to F-1 students in all academic fields except English Language programs. The initial OPT period is limited to 12 months, but the new rule will allow F-1 students with STEM degrees to extend their OPT period by an additional 24 months, for a total of three years. The new rule replaces the previous 17 month extension available to STEM OPT students.
Public Universities in California are leading the nation by being the first to provide low-interest college loans to Dreamers. The law making this possible appropriates funding through the California DREAM loan allotment and currently totals a fund of $7 million. Each applicant will be eligible to borrow up to $4,000 for each academic year at 4.29% interest. Like many other student loans, students will have a 6 month grace period before they must begin repaying the loan. Approximately 10,000 students may be eligible to qualify for a loan, which would help reduce the cost of their college tuition and help make attending college a reality for more students. This will come as an immense help to noncitizen children living in the United States who do not qualify for federal financial aid.
It’s H-1B season! As a reminder to employers in the tech industry and other sectors that rely on H-1B workers, employers must file their H-1B petitions April 1, 2016 to try to obtain one of the limited H-1Bs with a start date of October 1, 2016.
There are a total of 85,000 H-1B visas available each year, with 20,000 of those reserved for individuals who obtained a master’s degree or higher in the U.S. During the first week of April last year, USCIS received nearly 233,000 petitions, up from the 172,500 petitions received in 2014. As such, time is of the essence. Please contact us now if you have employees currently on working on OPT or if you are recruiting foreign nationals and you would like to submit an H-1B visa on their behalf.