House Holds Hearing on USCIS Policy Changes, Processing Delays

On July 16, 2019, the House of Representatives held a hearing on policy changes and processing delays at U.S. Citizenship and Immigration Services (USCIS). Witnesses included representatives from USCIS, the American Immigration Lawyers Association (AILA), Catholic Legal Immigration Network (CLINIC), the Immigrant Legal Resource Center, and the Center for Immigration Studies. Statements were also submitted by various organizations.

Regarding policy changes, Jill Marie Bussey, CLINIC’s Director of Advocacy, cited the following changes: expansion of in-person interview requirements and related “extreme vetting;” new rules on requests for evidence and notices of intent to deny; elimination of the 90-day processing requirement for employment authorization documents; information services “modernization” that includes narrowing of the options and points of access for stakeholders to request information and services regarding their pending cases; the ending of self-scheduling of in-person InfoPass appointments at field offices; and diverting resources to enforcement-focused activities. All of these policy changes, she said, are contrary to USCIS’s mission, contribute to backlogs and inefficiencies, and create unnecessary barriers for applicants and their legal representatives, are not justified by data, and thus have contributed to significant consequences and cascading effects for employers, legal service providers, individuals and families, and USCIS and other agencies.

With respect to processing delays, Marketa Lindt, AILA President, testified that USCIS’s average case processing time surged by 46 percent from FY 2016 to FY 2018 and by 91 percent from FY 2014 to FY 2018. “[I]n FY 2018 the agency processed 94 percent of its benefit form types more slowly than in FY 2014. For many of these form types, processing times more than doubled in recent years, and some tripled. This past fiscal year, the agency’s overall backlog of delayed cases exceeded 5.69 million, a 69 percent increase over FY 2014.” Hearing testimony and statements are available for the public.

The Irish International Immigrant Center recognized

The American Immigration Lawyers Association (AILA) recently recognized the Irish International Immigrant Center (IIIC) of Boston, MA, with the 2019 Diversity and Inclusion Award for outstanding efforts in promoting diversity and inclusion excellence.

The IIIC empowers immigrants and refugees from more than 125 countries by providing the legal, wellness and educational support they need to build successful lives. Building on the Irish roots of welcoming others and social justice, they help newcomers find community and they stand up for immigration policies that are humane and just. America is a nation of immigrants, and despite the current political climate, they are proud to continue the tradition of welcoming immigrants to this country and working together to create a better future for all.

The IIIC was founded in 1989 to help immigrants make successful transitions to new lives in Greater Boston. They serve families from Haiti, Ireland, Central and South America, the Middle East, Africa, and beyond. Their attorneys, social workers, and teachers work alongside refugees fleeing persecution, young students who have lived in the US for most of their lives, homeless women and children, survivors of domestic abuse, and immigrant families who now call Boston their home.

IIIC dedicated staff and volunteers are passionate about creating a safe and vibrant welcome center, where families trust them and are able to avail of a range of free or low-cost programs. For example, a constituent seeking legal help gaining citizenship may also enroll in tutoring with IIIC's Citizenship instructors to better prepare for their naturalization exam. Anyone who is experiencing stress, trauma, fear, and anxiety is invited to meet with a licensed independent clinical social worker to problem-solve, to access further resources, and to receive counseling. By empowering families on a holistic level, they further our vision of a society where all are welcomed, valued, and enjoy equal opportunities and protections.

We also would like to honor and congratulate the IIIC for their dedication and leadership in the immigrant community.

Supreme Court Grants Certiorari to Consider DACA Rescission Issue

The Supreme Court granted certiorari to rule on whether Department of Homeland Security’s decision to rescind the DACA program is judicially reviewable, as well as whether the decision to rescind the program was lawful. The Court further consolidated two other DACA related cases, Trump v. NAACP and McAleenan v. Batalla Vidal, together with this case, DHS v. Regents of the University of California.

The Court set aside one hour for oral argument. There are no new changes to the DACA program at this time, it is still being implemented on the terms of the prior court rulings discussed below. However, the Court will be issuing a decision following oral arguments, likely sometime in the first half of 2020.

Given USCIS processing times and the Court’s cert grant, clients who want to renew their DACA should submit their applications to USCIS as soon as possible.

Presidential Memorandum on Enforcing the Legal Responsibilities of Sponsors of Aliens (I-864s)

On May 23, 2019, the President issued a Presidential Memorandum on Enforcing the Legal Responsibilities of Sponsors of Aliens. As part of USCIS’ implementation of this memorandum, USCIS officers will now be required to remind individuals at their adjustment of status interviews of their sponsors’ responsibilities under existing law and regulations. This new Memorandum is part of the President’s directive to enforce the public charge ground of inadmissibility.

As background, most family-based immigrants and some employment-based immigrants must submit Form I-864, Affidavit of Support Under Section 213A of the INA, when they apply for status as a lawful permanent resident. The individual executing the affidavit of support, whether sponsor, substitute sponsor, or joint sponsor, agrees to accept legal responsibility for financially supporting the intending immigrant who applies for an immigrant visa or adjustment of status to lawful permanent resident.

Since Dec. 19, 1997, federal law has required an immigrant’s sponsor to reimburse any benefit granting entity in the event the sponsored immigrant applies for or receives means-tested public benefits. The law also requires that, if a benefit-granting entity is notified that a sponsored immigrant is receiving a means-tested public benefit, the benefit-granting entity request reimbursement from the sponsor(s). The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 states that when an individual with an affidavit of support applies for a federal means-tested benefit, the income and resources of the sponsor and the sponsor’s spouse are deemed to be income and resources when determining the immigrant’s eligibility for the benefit.

Proposed H-1B Registration Fee Rule Pending Review at OMB

On May 22, 2019, Department of Homeland Security (DHS) published its Spring 2019 Fall Unified Agenda of Regulatory and Deregulatory Actions, which provides the public with an overview of anticipated federal regulatory activity. The regulations featured in the Unified Agenda and the timelines stated are aspirational and are not strictly adhered to by DHS.

Included in the agenda is a proposed H-1B Registration Fee, entitled "Fee for Registration Requirement for Petitioners Seeking To File H-1B Petitions on Behalf of Cap Subject Aliens." The proposed rule is described as follows:

The Department of Homeland Security (DHS) will propose to amend its regulations to require a fee for H-1B registrations required by 8 CFR 214.2(h)(8)(iii)(A)(1).

It is our understanding that USCIS will propose a nominal fee of approximately $10-20 for each registration that is submitted for an H-1B cap-subject petition. This small fee is in response to comments received on the Registration Requirement for Petitioner Seeking to File H-1B Petitions on Behalf of Cap-Subject Aliens Rule that took effect on April 1, 2019.

Given that the proposed H-1B Registration Fee rule was delivered to the OMB for review shortly after it was announced on the Spring Unified Agenda, we expect that this proposed rule will be published this summer and anticipate that USCIS will seek to finalize before the FY2021 H-1B cap filing period begins.

Check-in with Department of State’s Charlie Oppenheim regarding the July 2019 Visa Bulletin

General Trends and Observations:  In the July 2019 Visa Bulletin, Charlie modifies previous projections for EB-1, EB-2 and EB-3 Worldwide, based on new data received from USCIS. This data reflects a rapid increase in actual demand across these categories that has materialized over the past month, and projections of continued higher levels of demand during the summer than had been experienced through mid-May.

EB-1:

• The Final Action Date for EB-1 Worldwide remains the same at April 22, 2018. Furthermore, Charlie predicts that there will be retrogression in this category as early as August 2019. If demand trends allow, the goal is that the Final Action Date in this category will return to the current level (i.e., April 22, 2018) in October 2019.

• The Final Action Date for EB-1 India remains the same at January 1, 2015. No further forward movement will occur in this category during FY2019. If possible, Charlie's goal is for EB-1 India to return to a Final Action Date of February 22, 2017 in October 2019.

• EB-1 China will advance approximately two months to May 8, 2017 in July. No additional forward movement is expected in this category for the remainder of FY2019. This preference may also become subject to the corrective action that Charlie mentions above for EB-1 Worldwide. The reason why EB-1 China was able to advance in July is that, unlike India, China has otherwise unused numbers in the EB-4 category that "fall up" to EB-1 to allow additional number usage. In contrast, there is sufficient EB-4 India number usage which restricts the ability to have unused numbers "fall up" to EB-1 India.

Charlie expects that going forward EB-1 Worldwide, EB-1 China, and EB-1 India will have distinct Final Action Dates. He also expects that the Final Action Dates for EB-1 China and EB-1 India will differ, with both lagging behind the Final Action Date for EB-1 Worldwide.

EB-2:

The June 2019 pace of demand continues to be higher than earlier in FY2019. This is in combination with USCIS's projected high summer usage.

• Based on this data, whereas Charlie previously believed EB-2 Worldwide might remain current through FY2019, this no longer remains the case. Charlie now anticipates that this category will have a Final Action Date imposed during FY19, and possibly as early as August 2019. At this time, he is unable to predict how far back the date imposed might be. As Charlie knows how many numbers remain available and how many USCIS predicts will materialize, he will continue to watch the demand in this category very closely. While it is possible that the Final Action Date for EB-2 Worldwide will hold in August 2019 and be limited to September 2019, AILA members are cautioned to file any current cases through the month of July 2019, as it is unclear whether these priority dates will still be current in August 2019. Charlie's goal is, if possible, to return the Final Action Date for this category to current in October 2019.

• In July, EB-2 China advances three months to November 1, 2016. Charlie predicts that this category may share a Final Action Date with the EB-2 Worldwide category, if corrective action is required for EB-2 Worldwide in August 2019.

• EB-2 India advances 5 days to April 24, 2009 in July. Charlie predicts that this category will continue to advance at a pace of up to one week until the limit is reached.

EB-3:

As with EB-2, Charlie is starting to see heavy demand in the EB-3 category, in addition to USCIS projections for additional demand. This demand is causing similar changes in the projections for this category.

• Whereas Charlie had been predicting that EB-3 Worldwide seemed likely to remain current through FY2019, that is no longer the case. Charlie has now modified his prediction and expects retrogression at some point during this fiscal year, perhaps as early as August 2019.

• EB-3 China advances 3.5 months to January 1, 2016 in July, and EB-3 China Other Workers advances about two months to November 22, 2007. Charlie continues to predict advancement of up to several months for the EB-3 category.

• The Final Action Date for EB-3 India continues to hold at July 1, 2009, with little if any forward movement predicted in the immediate future. Last year, action on all of the pre-adjudicated EB-3 India numbers from the 2007 Adjustment of Status filings were finalized. Charlie's only visibility to the demand in this category comes from new filings, which are coming in at a steady pace. Part of the reason that this category was allowed to advance is that Charlie assumed that the rest of the world numbers would not be used, as had been the case for the past five fiscal years. However, this year there are no extra EB-3 numbers available from other countries to transfer to EB-3 India. Therefore, in order to limit future use of numbers, any required corrective action for EB-3 Worldwide will also impact the Final Action Date for EB-3 India.

If you have questions about planning, please feel free to reach out and schedule a consultation with one of the attorneys (info@iandoli.com).

July Visa Bulletin

Each month, the U.S. Department of State publishes the Visa Bulletin, listing all "preference" categories and states whether or not a backlog exists for each one. For July 2019, there continues to be a worldwide backlog for all applicants for the EB-1 "Priority Worker" preference category. As in previous months, the final action dates remain steady. This means that only those who filed Form I-140 on or before the date given in the Visa Bulletin are able to file for or be granted permanent resident status. The listed date for all countries other than China and India in the EB-1 category is April 22, 2018. China and India are backlogged to May 8, 2017 and January 1, 2015, respectively, meaning that only those applicants whose I-140 was filed on or before that date are able to file Form I-485 to become permanent residents, or if their I-485 applications are already pending, to be approved.

While, in the EB-2 preference category, there is currently no backlog for the worldwide numbers (except for China and India). China EB-2 numbers are backlogged to November 1, 2016 and India EB-2 is backlogged to April 24, 2009.  

These backlogs may require employers or immigrants to extend H-1B, O-1, and other nonimmigrant categories until such time that visa numbers do become available, so it is strongly advised to plan accordingly and to allow enough time so that no gap exists which could affect the ability of the applicant to work in the United States and/or travel abroad. We will be checking each month to monitor the Visa Bulletin and will provide updates.

Increased Fees for International Students, Scholars, Exchange Visitors, and SEVP-Certified Schools

The Department of Homeland Security (DHS) has finalized changes to fees charged by the Student and Exchange Visitor Program (SEVP) to international students, exchange visitors and SEVP-certified schools. The new fees took effect June 24, 2019.

Fee increases include:

• The I-901 SEVIS Fee for F and M international students increased from $200 to $350.

• DHS maintained the $35 I-901 SEVIS Fee for J exchange visitors in the au pair, camp counselor, and summer work travel program participant categories, but increased the full I-901 SEVIS Fee for other J exchange visitors from $180 to $220.

• The SEVP school certification petition fee for initial certification increased from $1,700 to $3,000.

New fees include:

• A $1,250 fee for SEVP-certified schools filing a petition for recertification.

• A $675 fee when schools file the Form I-290B, “Notice of Appeal or Motion.”

• DHS maintained the $655 fee for an initial school site visit but will also charge this fee when a SEVP-certified school changes its physical location or adds a new physical location or campus to its Form I-17, “Petition for Approval of School for Attendance by Nonimmigrant Student.”

Regulation requires all prospective international students, scholars, and exchange visitors to pay the I-901 SEVIS Fee before the U.S. Department of State issues a visa. Students and exchange visitors who paid the I-901 SEVIS Fee prior to the fee implementation date, but before they obtain a visa or enter the United States, will not need to pay the difference between the new fee and the old fee. Students and exchange visitors will continue to pay the I-901 SEVIS Fee on FMJfee.com.

Schools will continue to pay all fees related to the Form I-17 at Pay.gov. Should a school file an initial certification or recertification petition, petition update or Form I-290B, and it is not adjudicated before the fee implementation date, the school will not be required to pay the new or increased fee retroactively.

Citizenship and Adjustment of Status Interviews May Be Conducted at Different Locations to Improve Processing Times

USCIS announced at the end of June that it will implement a national strategy to decrease differences in processing times based on location for Form N-400, Application for Naturalization, and Form I-485, Application to Register Permanent Residence or Adjust Status.

Since the end of the Fiscal Year (FY) 2017, filings were up 15.6% from FY 2016, and FY 2016 filings were up 25.5% from FY 2015. Because the increased filing volumes did not affect the USCIS field offices equally, the processing times among field offices differed vastly. As a result, caseloads will now be shifted between field offices to decrease processing times.

This means an applicant may be scheduled for an interview at a field office outside of their normal jurisdiction, geographic location. Applicants may also receive other types of notices (such as a Request for Evidence) from a field office outside of their normal jurisdiction. Luckily, these caseload changes will not affect where applicants attend their biometrics appointments. In the event the applicant is not able to travel to the field office, they may reschedule the appointment, but this will likely result in further delays in processing the naturalization or adjustment of status petition.

USCIS Expands Digital Delivery of FOIA Requests

In May 2018, US Citizenship and Immigration Services (USICS) announced the initial rollout of FOIA Immigration Records System FIRST, which allowed requestors to create a USCIS online account to receive requested documents digitally. 

In keeping with the transition to online services, USICS announced at the end of June the expansion of FIRST. USCIS online account holders can submit requests online for their own records, and soon will be able to submit requests for non-A-File materials. Later this year, users will be able to make requests on behalf of another person.

Iandoli Desai & Cronin will continue to provide updates as the FIRST system continues to expand.