USCIS proposes significant fee increases for nearly all applications & petitions

On May 4, 2016, USCIS published a proposed rule to increase filing fees an average of 21% across all application-types and add a few new fees to its existing fee schedule. The agency noted the current fees, set in 2010, are not sufficient to cover the full costs of the services USCIS provides. In hopes of providing better service, reducing wait times and increasing enforcement efforts, USCIS announced its proposed fee increases, which include the following changes for common applications:

• Form I-129 (H-1B, L-1, O-1, TN, E) would increase from $325 to $460 (42%)
• Form I-140 Immigrant Petition for Alien Worker would increase from $580 to $700 (21%)
• Form I-485 Application to Adjust Status for adults would increase from $1,070 to $1,225 (16%)
• Form I-130 Petition for Alien Relative would increase from $420 to $535 (27%)
• Form N-400 Application for Naturalization would increase from $680 to $725 (8%)

The proposed rule in its entirety can be viewed on the Federal Register website. Comments are due by July 5, 2016 and can be submitted via the Federal eRulemaking Portal at http://www.regulations.gov.  All submissions should include the DHS Docket No. USCIS-2016-0001. 

New requirement for Lawful Permanent Residents traveling to Canada

Effective March 15, 2016, the Canadian Border Service Agency ("CBSA") is now requiring all U.S. lawful permanent residents ("LPRs") who are visa exempt for Canada to sign-up for Electronic Travel Authorization ("eTA") prior to any travel to or through Canada by plane. LPRs travelling via land or sea, U.S. citizens, and foreign nationals with a valid Canadian visa are not subject to this new requirement. CBSA is allowing LPRs travelling by plane between March 15, 2016 and September 29, 2016 without eTA to board flights as long as they have appropriate travel documents, such as a valid passport, and meet all requirements to enter Canada.  After that LPRs must sign up for eTA prior to any travel.
 
To apply for eTA please visit: http://www.cic.gc.ca/english/visit/eta.asp. According to CBSA, the application process costs $7 CAD and most are approved within minutes of applying.

First-time tourist visa appointments suspended & other significant delays at the U.S. Embassy in Caracas, Venezuela

For the past several months, the Venezuelan Foreign Ministry has refused to issue visas for U.S. Embassy personnel, resulting in a severe staff shortage at the U.S. Embassy in Caracas. On May 18, 2016, the U.S. Department of State ("DOS") announced that due to limited staff, the U.S. Embassy in Caracas is forced to cease making appointments for certain visas and significantly limit the processing of others.

Until further notice, the Embassy in Caracas is no longer scheduling appointments for first-time business or tourist (B-1/B-2) visa applicants. For those who already paid the visa application fee prior to May 18, 2016, the Consulate will honor those paid fees for up to one year but will only be scheduling a limited number of appointments each day. Applicants should be prepared for the application process to take longer than expected. In addition, applicants applying for renewal of their U.S. visa or first-time applicants for any of the petition-based, student, or investor visas, a limited number of appointments for those visa types will be made available but wait times may be significant.

For immigrant-based visa applications, the Embassy has confirmed it will continue to schedule appointments as usual once the National Visa Center ("NVC") has notified them that cases are ready for an interview. For more information please visit:  http://caracas.usembassy.gov/news¬events/embassy¬news/new¬information¬niv¬visa-venezuela.html.  

USCIS announces TPS extended for Nicaragua and Honduras

USCIS recently announced Temporary Protected Status ("TPS") for Nicaragua will be extended for an additional 18 months, effective July 6, 2016, through January 5, 2018. Current beneficiaries who wish to extend their TPS must re-register during the 60-day period that is open now through July 15, 2016. USCIS will automatically extend current TPS Nicaragua employment authorization documents (EADs) with a July 5, 2016 expiration date for six months. For more information please visit: https://www.uscis.gov/news/news-releases/temporary-protected-status-extended-nicaragua.
 
In addition, USCIS announced TPS for Honduras will also be extended for an additional 18 months, effective July 6, 2016, through January 5, 2018. Current beneficiaries from Honduras seeking to extend their TPS must re-register during the 60-day period that is open now through July 15, 2016. USCIS will automatically extend current TPS Honduras employment authorization documents (EADs) with a July 5, 2016 expiration date for six months. For additional details, please visit: https://www.uscis.gov/news/news-releases/temporary-protected-status-extended-honduras.

USCIS announces H-1B cap reached for 4th year in a row during the first week of April

U.S. Citizenship and Immigration Services ("USCIS") announced on April 7, 2016 that it had reached the congressionally mandated H-1B cap for fiscal year 2017 ("FY2017").  A few days later, USCIS disclosed the total number of H-1B petitions the agency received for FY2017: 236,000.  As a result, USCIS employed a lottery system to select the 65,000 H-1B visas in the general category cap and the additional 20,000 H-1B visas available to applicants with a U.S. master's degree or other advanced degree obtained in the U.S. 

The number of applications submitted by employers seeking to hire professionals under the H-1B program has increased since 2013 and the lottery process has become commonplace. USCIS confirmed it received 124,000 applicants in FY2014, 172,500 in FY2015, 233,000 in FY2016, and now 236,000 in FY2017. 

For petitions filed via premium processing that were selected in the lottery, USCIS announced it will begin the guaranteed 15-day processing time for those petitions on May 12, 2016. On May 2, 2016, USCIS confirmed it had completed data entry for all FY2017 H-1B cap-subject petitions selected in the lottery. The agency will now begin the process of returning filing fee checks and the petitions not selected in the lottery, typically mailing those packages back to employers beginning in late May or early June. 

Not selected in the H-1B lottery? Other work visas for professionals to consider

Employers and foreign nationals disappointed in this year's H-1B lottery results may want to consider other work visa options.  A few possibilities that are not subject to annual quotas include:

• Cap-exempt H-1B visas - available where the beneficiary will be employed at an institution of higher education (even in some cases with a private company who maintains space on a college or university campus), a related or affiliated nonprofit entity, a nonprofit research organization, or a government research organization, or concurrently employed by both a cap-exempt employer and a private, otherwise cap-subject employer;
• TN visas - available to nationals of Canada and Mexico;
• E-3 visas - available to nationals of Australia;
• H-1B1 visas - available for nationals of Chile and Singapore (subject to a quota but that quota is rarely met);
• E visas - E-1 treaty trader and E-2 treaty investor visas are available for nationals of a number of countries (full list here);
• F-1 student visas - F-1 students with a degree in a STEM field may be eligible under the new STEM OPT rules that permit work authorization for up to 3 years following graduation;
• J-1 visas - available for interns or trainees in a variety of work categories if sponsored by a qualified J-1 entity, including umbrella sponsorship agencies;
• L-1 visas - available to managers, executives or those with specialized knowledge who have worked abroad for at least 1 year within the past 3 years for a company abroad related as a parent, branch, subsidiary, or affiliate of a U.S. company;
• O-1 visas - available for persons of extraordinary ability in the sciences, arts, education, business or athletics.

Please contact the attorneys at Iandoli Desai & Cronin at info@iandoli.com to discuss these and other options for your professional employees.

Department of State announces new policy of visa revocation for DUI arrests

In a recent Q&A session, the Department of State's Visa Office discussed its new policy requiring consular officers to prudentially revoke nonimmigrant visas for driving under the influence ("DUI") arrests subsequent to visa issuance. The arrest alone is sufficient for DOS to prudentially revoke a visa based on suspected ineligibility - a conviction or admission is not required.  Although consular officers generally may revoke a visa only if the alien is ineligible under INA 212(a) (including for conviction of certain crimes, controlled substance violations, etc.) or is no longer entitled to the visa classification, the Department of State ("DOS") may revoke a visa if an ineligibility or lack of entitlement is suspected, or for virtually any other reason. This is known as a prudential revocation.  

Effective November 5, 2015, DOS implemented the requirement for consular officers to prudentially revoke nonimmigrant visas after a DUI arrest because the agency considers such an arrest as indicative of a possible ineligibility under the Immigration and Nationality Act ("INA"): ineligibility for a visa due to a possible physical or mental disorder associated with harmful behavior. Previously, a nonimmigrant's DUI arrest subsequent to being issued a visa did not pose an issue for a foreign national until the next time she or he sought to apply for a visa and would have to disclose the arrest on the visa application. 

DOS and its affiliated visa offices receive information on arrests and convictions through a number of U.S. government agencies' electronic databases, some of which do not include final dispositions of criminal charges after arrest. Following a DUI arrest, a foreign national in the U.S. on a nonimmigrant visa may receive a notice from a consulate stating his/her visa has been revoked due to derogatory information received by DOS and that the visa is not valid for future travel to the U.S. Although affected visa holders are not required to immediately depart the U.S., they are required to present the visa at the consulate for physical cancellation upon returning abroad. Revocation does not preclude a foreign national from reapplying for a new visa, but the DUI arrest would have to be disclosed on any future visa application.

This is a major change in policy and has the potential to affect a significant number of visa holders currently living and working in the U.S. who have been arrested for a DUI within the past five years and who have not yet had opportunity to disclose that information on a visa application. For more information on DOS's new policy and to view the updated Foreign Affairs Manual ("FAM") that includes the DUI arrest provision visit the FAM online.

USCIS adopts recent AAO decision about L-1A functional managers

On April 14, 2016, USCIS issued a Policy Memorandum officially adopting Matter of Z-A-, Inc. and establishing policy guidance that applies to and binds all USCIS employees adjudicating L-1A petitions for managers. In its holding in Matter of Z-A-, Inc., the Administration Appeals Office ("AAO") confirmed USCIS officers must weigh all relevant factors in determining whether the beneficiary of an L-1A will manage an essential function, including evidence of the beneficiary's role within the wider qualifying international organization. 

In the instant case, USCIS had initially denied the employer's L-1A functional manager petition on behalf of one of its company Vice Presidents. In its denial, USCIS stated the Petitioner did not establish it had an organizational structure sufficient to support the Beneficiary in a qualifying managerial capacity in light of there only being two U.S. payroll employees in sales and administrative positions. USCIS suggested that because of this small organizational structure, the Petitioner had not adequately demonstrated how Beneficiary would be working in a managerial capacity rather than as a sales person or administrator. The AAO disagreed and found USCIS failed to take into account the fact that the Beneficiary, in addition to supervising the two U.S. payroll employees, also oversaw the duties performed by eight foreign staff located in Japan whose roles support the U.S. enterprise.

In making future determinations concerning managing an essential function of an organization, USCIS must now consider evidence presented by the Petitioner of personnel employed by another related entity within the qualifying organization who perform day-to-day non-managerial tasks of the petitioning entity.  To read the new Policy Memo and AAO decision in the Matter of Z-A-, Inc., visit USCIS's policy memorandum site.  

E-Verify is going mobile

On April 27, 2016, the Department of Homeland Security ("DHS") announced testing for the new E-Verify Mobile App, encouraging up to 2,000 E-Verify users to test the App on their iPads and report performance time through the Apple TestFlight feedback tool. 

E-Verify is a free, internet-based system offered by DHS to allow employers to determine the eligibility of their employees to work in the U.S. Since 1986 U.S. law has required employers to verify worker eligibility and to maintain records through the use of form I-9. E-Verify was officially introduced in 2007 after a pilot program that allowed employers to electronically verify worker eligibility in the U.S.  The program has grown to over 602,000 participating employers verifying over 13 million employees each year.

While E-Verify is an optional program, it is a required program for certain federal contractors and for any employer who seeks to employ F-1 students during their additional two years of work authorization in the U.S. following graduation as part of the STEM OPT program. The E-Verify Mobile App is the next step DHS hopes will attract more users to its program. If your company uses E-Verify and you have an Apple iPad (2nd and 3rd generation only) and want to participate in the test program, email the E-Verify program at MobileE-Verify@uscis.dhs.gov by May 4, 2016.

Immigration relief available for those affected by severe earthquakes

In the wake of several major earthquakes in Ecuador, Japan and Burma, USCIS announced a variety of immigration relief measures available to people affected by these natural disasters. In its April 26, 2016 press release, USCIS described the measures available upon request including a change or extension of nonimmigrant status (even if the request is filed after an authorized period of admission has expired), expedited processing of advance parole or employment authorization documents, consideration of fee waivers due to inability to pay, and replacement of a lost or damaged Legal Permanent Resident Card ("green card") or other immigration or travel documents issued by USCIS. 

Foreign nationals seeking relief under these measures must file the appropriate forms with USCIS and include information with their requests about how the natural disaster created the need for the requested relief.  For more details, please visit USCIS's website section for Humanitarian Relief and Special Situations.