USCIS Filing Fee Increases

In November 2019, Department of Homeland Security (DHS) proposed a rule which would make changes to the USCIS fee schedule. DHS proposes to adjust USCIS fees, add new fees, and make other changes, including form changes and the introduction of several new forms.  On January 24, 2020, the comment period on Proposed Rule on USCIS Fee Schedule Changes was reopened. Comments must be submitted by February 10, 2020.

The following are related considerations concerning the proposed fee changes:

• The proposed rule is bad for business. Among other harmful changes, the rule relaxes the premium processing deadline from 15 calendar days to 15 business days, which will result in slower adjudications at higher prices—and as a consequence, slower hiring for American businesses facing critical workforce gaps and an inefficient agency lessening its own accountability standards.

• The proposed rule would force USCIS customers to pay more for less. USCIS is proposing an approximately 18% overall fee hike without offering evidence that this increase will reverse the ongoing deterioration of the agency’s immigration benefit services. In fact, in key respects the rule would further weaken USCIS’s case processing standards. If implemented, families, protection seekers, and American businesses throughout the country would face the dual burden of increased fees and decreased services.

• The proposed fee hikes, coupled with the elimination of vital fee waivers, would price many individuals and families out of our legal immigration system. If the rule is implemented, application fees for green cards, along with associated work and travel authorization, would likely surge by at least 75%, and for citizenship by at least 80%. The rule would also eliminate fee waivers for those form types as well as for numerous others. Moreover, the rule would significantly raise fees for DACA renewal requests. Taken together, these changes constitute yet another brick in the Trump Administration’s “invisible wall” restricting legal immigration.

• USCIS should rescind its inefficient policies rather than ratchet up fees to subsidize them. In recent years, USCIS’s own inefficient policies have comprised core drivers of its crisis-level case processing delays. Now the agency is proposing higher fees to fund their continued implementation—in effect, foisting onto the public the costs of its own inefficiency. To fix the backlog, the agency should start by ending bad policies—not by raising fees to underwrite them.

• The rule’s proposed transfer of over $100 million in USCIS applicant fees to ICE defies the agency’s service-oriented statutory mandate. Congress created USCIS to function as a service-oriented immigration benefits agency, distinct from the immigration enforcement missions of ICE and CBP. Yet the proposed transfer to ICE for immigration enforcement purposes makes clear that USCIS is prioritizing ICE’s work over its own.

• Though the rule seeks to justify its fee increases in large part by citing a need for more staffing, over the past year the agency diverted hundreds of its employees to perform enforcement work for ICE and CBP. In recent years, the rate of new applications and petitions filed with USCIS has declined appreciably. Yet the rule asserts that the agency needs far more resources to properly process its workload. The rule fails to explain why, if that is the case, USCIS sent hundreds of its employees to perform enforcement work for ICE and CBP in FY2019.

Public Charge Rule Implementation

On January 27, 2020, in a 5-4 decision, the U.S. Supreme Court granted the administration’s request for a stay of the nationwide injunction against Department of Homeland Security’s (DHS) public charge rule, allowing DHS to implement the public charge rule nationwide, except for Illinois, which a statewide injunction against the rule remains in effect.

USCIS announced that it will begin implementing the Inadmissibility on Public Charge Grounds final rule (“Final Rule”) on February 24, 2020. USCIS has clarified that it will not consider an individual’s application for, certification or approval to receive, or receipt of certain non-cash public benefits before February 24, 2020 (instead of the original October 15, 2019), when deciding whether the foreign national is likely at any time to become a public charge under the Final Rule.

The term “likely at any time to become a public charge,” which is a ground of inadmissibility found in INA § 212(a)(4), has been redefined in four important ways:

• In determining public charge inadmissibility, the regulation shifts attention away from the petitioner/sponsor’s income as reported on the affidavit of support and re-directs it to the applicant’s age, health, family status, assets/resources/financial status, and education/skills. It defines these terms in ways that may make it very difficult for low-income, low-skilled, under-educated, elderly, or disabled applicants to overcome a public charge finding.

• Instead of being applied to those who might become “primarily dependent” on a designated list of state and federal programs, it is to be applied to those who are more likely than not to receive any of nine benefits for more than 12 months in the aggregate within any 36-month period.

• DHS has expanded the list of designated programs that can be considered when applying the public charge “totality of the circumstances” test. Prior to the regulation becoming final, the agency could only consider receipt of three cash assistance programs— Supplemental Security Income (SSI), Temporary Assistance to Needy Families (TANF), and state general relief or general assistance—as well as a Medicaid program that covers institutionalization for long-term care. The final regulation adds five new programs. It is important to note however, that only benefits received by the applicant are considered.

• The regulation allows for the posting of a public charge bond for applicants who, in the opinion of the USCIS or State Department, might otherwise fail the public charge test.

Many immigrants don’t have to worry about “public charge”, for example:

• Lawful Permanent Residents (green card holders) applying for US citizenship

• Lawful Permanent Residents (green card holders) applying to renew their expired cards

• Refugees and asylees, including people applying for asylum

• People applying for or re-registering for Temporary Protected Status (TPS)

• Violence Against Women Act (VAWA) self-petitioners

• Victims of crime or trafficking who hold a U or T visa

• People with Special Immigrant Juvenile Status, including people applying for this status

Under the final rule, DHS will also conduct a more limited public charge determination of nonimmigrants seeking a change or extension of status, by removing the future-looking requirement of the public charge determination, and only considering whether the noncitizen has received designated benefits (listed below) for more than 12 months in the aggregate within a 36-month period since obtaining the nonimmigrant status they seek to change from or extend, through the adjudication of that request.

The public benefits listed at 8 CFR 212.21(b) and 22 CFR 40.41(c), receipt of which on or after February 24, 2020 will be counted towards this threshold, include the following: (Benefits other than these are not defined as public benefits for purposes of these rules.)

1. Any Federal, State, local, or tribal cash assistance for income maintenance (other than tax credits), including:

   • (i) Supplemental Security Income (SSI);

   • (ii) Temporary Assistance for Needy Families (TANF); or

   • (iii) Federal, State or local cash benefit programs for income maintenance (often called "General Assistance" in the State context, but which also exist under other names);

2. Supplemental Nutrition Assistance Program (SNAP) (commonly known as "food stamps");

3. Section 8 Housing Assistance under the Housing Choice Voucher Program, as administered by HUD;

4. Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation) under Section 8 of the U.S. Housing Act of 1937;

5. Medicaid under 42 U.S.C. 1396 et seq., except for:

   • (i) Benefits received for an emergency medical condition as described in 42 U.S.C. 1396b(v)(2)-(3), 42 CFR 440.255(c);

   • (ii) Services or benefits funded by Medicaid but provided under the Individuals with Disabilities Education Act (IDEA);

   • (iii) School-based services or benefits provided to individuals who are at or below the oldest age eligible for secondary education as determined under State or local law;

   • (iv) Benefits received by an alien under 21 years of age, or a woman during pregnancy (and during the 60-day period beginning on the last day of the pregnancy).

6. Public Housing under section 9 of the U.S. Housing Act of 1937.

USCIS will post updated versions of Forms I-129, I-485 I-539, I-864, and I-864EZ and corresponding instructions, as well as Policy Manual guidance on www.uscis.gov during the week of February 3. These updated forms must be used beginning February 24, 2020, otherwise applications and petitions using incorrect editions of the forms will be rejected.

If you have received public benefits in the past or could require public assistance, we recommend that you contact Iandoli Desai & Cronin to schedule a consultation.

U.S. Travel Bans Impact China & Six Other Countries

On January 31, the Trump administration announced the following sweeping new travel restrictions:

Responding to the Coronavirus Situation, United States Restricts Travel From China

U.S. Health and Human Services Secretary Azar announced a ban on foreign nationals traveling from China and quarantines for U.S. citizens coming from China. The restrictions went into effect at 5:00 p.m. (EST) on Sunday, February 2.

• "Foreign nationals, other than immediate family of U.S. citizens and permanent residents, who have traveled in China within the last 14 days will be denied entry into the United States for this time," per a presidential proclamation under INA 212(f), signed by President Trump on January 31.

• Any U.S. citizen returning to the United States who has been in Hubei province in the 14 days prior to their entry to the United States will be subject to up to 14 days of mandatory quarantine to ensure they have been provided proper medical care and health screening

• Any U.S. citizen returning to the United States who has been anywhere else in mainland China in the 14 days prior to their entry to the United States will undergo "proactive entry health screening at a select number of ports of entry," and up to 14 days of "monitored self-quarantine" to ensure they have not contracted the virus and do not pose a public health risk.

Furthermore, on January 30, the World Health Organization declared that the spread of the virus is a Public Health Emergency of International Concern while, the U.S. State Department issued a Level 4 “do not travel” advisory for China.

Please note, the US Embassy Consulates in China are temporarily closed February 3-7 in accordance with Chinese government guidance.  As such, when they re-open, they will likely be backlogged so visa processing could see substantial delays.

Trump Administration Announces Expansion of Travel Ban

In a January 31, 2020, Presidential Proclamation, the Trump administration expanded its travel ban to place visa and entry restrictions on travelers from six additional countries, including Eritrea, Kyrgyzstan, Myanmar, Nigeria, Sudan, and Tanzania.

The expanded ban will become effective at 12:01 a.m. (EST) on February 21, 2020. The ban contains restrictions on certain (not all) immigrant visa petitions being processed abroad at U.S. Embassies but does not impact nonimmigrants. Therefore, it will not impact applications for Adjustment of Status to Permanent Resident from within the U.S., acquisition of nonimmigrant visas like B-1/B-2 tourist, F-1 student, J-1 exchange visitor, H-1B worker, etc., or of admission to the United States in those categories. However, visitors in these may still be subject to extra scrutiny, as we have seen in the case of Iranian citizens most recently.

Expected USCIS Filing Fee Increases

As highlighted in last month’s newsletter, Department of Homeland Security (DHS) proposed a rule which would make changes to the USCIS fee schedule. DHS proposes to adjust USCIS fees by a weighted average increase of 21%, add new fees, and make other changes.  The proposed changes include new and/or increased fees for adjustment of status, asylum, DACA renewals and naturalization. The proposed rule also seeks to eliminate critical fee waivers that allow vulnerable immigrants to maintain their status and progress in their immigration journey.

The following is a sample of proposed fee increases and changes to the Green Card and Naturalization process:

Adjustment of Status to Lawful Permanent Residency- Currently, an adjustment of status application costs $1,225 for most applicants. The current fee includes the cost of concurrently filed applications for work and travel authorization. USCIS is proposing to separate the filing fees for these applications and increase the total price of that package to $2,195.

Deferred Action for Childhood Arrivals, or DACA - USCIS is proposing to include a new fee for DACA renewals of $275. Currently, renewing DACA requesters pay $410 for employment authorization and $85 for biometrics. However, USCIS is proposing to raise the employment authorization fee to $490 and to roll the biometrics fee into the proposed $275 I-821D fee. Thus, the cost of a DACA renewal will increase from $495 to $765, an overall increase of 55%.  

Fee Waivers - USCIS is proposing to slash existing fee waivers except for those enumerated by statute (i.e., VAWA self-petitioners, battered spouses of certain nonimmigrants, U visas, T visas and TPS). Among the fee waivers largely eliminated are those for applications for naturalization, adjustment of status, green card replacement and renewals (Form I-90) and employment authorization.

Naturalization - USCIS is proposing to increase the naturalization applications (Form N-400) fee 83%, raising the fee from $640 to $1,170. Additionally, USCIS is proposing to eliminate the Form N-400 Reduced Fee as well as fee waivers for the N-400. This will increase the burden on low-income immigrants seeking to naturalize, delaying their access to citizenship.

Please contact Iandoli Desai & Cronin PC if you have questions applying for benefits that you may be eligible for now in preparation of the proposed fee increases taking effect.

USCIS Begins Accepting Green Card Applications under Liberian Refugee Immigration Fairness (LRIF)

U.S. Citizenship and Immigration Services (USCIS) announced that it will begin accepting applications to adjust status to lawful permanent resident from certain Liberian nationals under Section 7611 of the National Defense Authorization Act for Fiscal Year 2020, Liberian Refugee Immigration Fairness (LRIF), signed into law on December 20, 2019.

To be eligible for permanent residence (a Green Card) under LRIF, a Liberian national must have been continuously physically present in the United States from November 20, 2014, to the date they properly file an application for adjustment of status. USCIS will accept properly filed applications until December 20, 2020, one year from the enactment of the LRIF.

Applicants must be otherwise eligible to receive an immigrant visa and be admissible to the United States. The spouses, unmarried children under 21, and unmarried sons and daughters 21 or older of eligible Liberian nationals are also eligible for Green Cards.

The following grounds of inadmissibility do not apply to applicants under the LRIF:

• Public Charge (INA 212(a)(4));

• Labor Certification Requirements (INA 212(a)(5));

• Aliens Present Without Admission or Parole (INA 212(a)(6)(A)); and

• Documentation Requirements (INA 212(a)(7)(A)).

Aliens are ineligible under LRIF if they have:

• Been convicted of any aggravated felony;

• Been convicted of two or more crimes involving moral turpitude (other than a purely political offense); or

• Ordered, incited, assisted or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group or political opinion.

For more information about filing for adjustment of status under the LRIF, contact the attorneys at Iandoli Desai & Cronin PC.

USCIS Expands Guidance on “Unlawful Acts” Bar to Establishing Good Moral Character for Naturalization

In December 2019, USCIS issued a policy alert expanding its policy guidance regarding unlawful acts that reflect adversely on moral character and may prevent an applicant from meeting the good moral character (GMC) requirement for naturalization. Policy highlights include:

• Expands existing guidance on the “unlawful acts” bar to establishing GMC for naturalization, including adding additional examples of unlawful acts.

• Emphasizes that USCIS officers determine whether an “unlawful act” is a conditional bar on a case-by-case basis and provides guidance on that case-by-case analysis.

The policy became effective December 13, 2019.

Economic Value Statistics of International Students and Scholars

NAFSA: Association of International Educators is the world's largest nonprofit association dedicated to international education and exchange. NAFSA provides annual statistics including economic value of international students and visitors.  NAFSA's latest analysis finds that international students studying at U.S. colleges and universities contributed $41 billion and supported 458,290 jobs to the U.S. economy during the 2018-2019 academic year.  NAFSA reports that for every seven international students, three US jobs are created and supported by spending occurring in the higher education, accommodation, dining, retail, transportation, telecommunications and health insurance sectors.

NAFSA conducts an annual state-by-state and congressional district analysis of the economic contributions of international students and their families to the U.S. economy. Massachusetts specific data shows that the 71,098 international students have contributed $3.2 Billion and 38,799 jobs during the 2018-2019 academic year. The economic contributions of international students are in addition to the immeasurable academic and cultural value these students bring to our campuses and local communities.

U.S. Department of Education Information Collection Request based upon Section 117 of the Higher Education Act Foreign Gift and Contract Reporting

Over the last year, motivated largely by concerns about China’s perceived growing influence, federal policy makers and national security and science agencies have been looking into ways to protect sensitive research and academic freedom at American colleges and universities. As a result, the Department of Education and other policy makers have started to focus on the Sec. 117 foreign gift reporting requirements.

In December, the Department of Education Notice asked the Office of Management and Budget (OMB) to conduct an emergency review of the Department's Information Collection Request on Foreign Gifts and Contracts under Section 117 of the Higher Education Act.  This notice asks OMB to conduct an emergency review of the Department's Information Collection Request on Foreign Gifts and Contracts, which requires each institution of higher education to report gifts and contracts with foreign sources that exceed a value of $250,000 (Docket No. ED-2019-ICCD-0154).

In November of this year, the American Council on Education submitted a letter to the Department expressing concerns about the breadth of the request and rather than simplify the process will complicate the reporting process. In essence, it would increase the scope of Section 117 beyond what the statute requires and significantly expand the type of information colleges and universities must report. Click here for details on what new information might be required.

USCIS Issues Public Guidance on Visa Retrogression and How to Follow Up on Pending Green Card Applications

In December, US Citizenship and Immigration Services (USCIS) issued public guidance on visa retrogression which can occur when an application for green card, known as Form I-485, application for adjustment of status, or immigrant visa application is adjudicated.

If, at the time of final adjudication of the green card, an applicant’s priority date no longer meets the cut-off date published in the Visa Bulletin, due to retrogression, his or her case must be held in abeyance until an immigrant visa once again becomes available. If an applicant has been interviewed at a USCIS office and an immigrant visa is not available, then USCIS may hold the case at different USCIS locations until an immigrant visa becomes available. At the conclusion of the interview, and if the officer has determined the Form I-485 is approvable other than an immigrant visa not being available, the officer will provide the green card applicant with a Notice of Interview Results informing the applicant of the reason(s) the application is being continued.

Once the visa number becomes available again, USCIS will not notify the AOS applicant of an immigrant visa becoming available and further processing of his or her case. Applicants may visit the current Visa Bulletin maintained by the Department of State (DOS), which informs the public of the current month’s visa cut-off dates and to monitor when a visa becomes available to them based on their category, country of chargeability, and priority date.

USCIS will finalize processing of the green card application or an immigrant visa-retrogressed case when visas become available to applicants based on their priority dates and the cut-off dates in the current month’s Visa Bulletin. Due to the number of immigrant visa numbers that become available on the first date of each month, and the fact that many cases may require updated evidence, it may take several months before USCIS is able to complete the adjudication of some cases.

These retrogressions may require immigrants to extend H-1B, O-1, and other nonimmigrant categories until such time that immigrant 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.

Check-in with Department of State’s Charlie Oppenheim regarding the January 2020 Visa Bulletin

EB-1

In January, the EB-1 Worldwide Final Action Date advances 2.5 months to October 1, 2018. The EB-1 China Final Action Date advances one week to May 22, 2017, and EB-1 India’s Final Action Date continues to hold at January 1, 2015. While EB-1 China and EB-1 India demand remain high, rest of world demand has tapered off and is currently lower than Charlie’s monthly use target. If this trend continues, EB-1 Worldwide could potentially become current by the summer of 2020.

EB-1 China will continue to advance at a pace of up to three weeks, but members should not expect EB-1 India to advance in the near future. There continues to be sufficient demand in this category for applicants with priority dates that are earlier than January 1, 2015 to enable Charlie to reach his target without having to advance the Final Action Date.

EB-2 Worldwide & EB-3 Worldwide

Last month’s Check-in warned of the possibility of retrogression in the EB-2 Worldwide and EB-3 Worldwide categories as early as January 2020. We were pleasantly surprised that these categories will remain current for January. Members should continue to monitor these categories closely moving forward, as Charlie has informed AILA that Final Action Dates will be imposed in these categories—it is merely a matter of when that will occur. He notes that EB-3 Worldwide will have a Final Action Date imposed no later than March 2020, with a strong possibility of that happening in February. EB-2 Worldwide is likely to remain current longer than EB-3 Worldwide, and hopefully no cut-off date will be required until after March 2020.

The longer these categories remain Current, the more likely it is that the retrogression will be more significant so as to severely limit the number usage for a period of time.

The EB-2 China Final Action Date advances one week in January to July 1, 2015, and EB-2 India advances 3 days to May 18, 2009. Over the coming months, Charlie expects EB-2 China to advance at a pace of up to one month, with EB-2 India advancing at a rate of up to one week. Charlie notes that EB-2 China demand has picked up at a steady pace, but still remains manageable for now.

The EB-3 China Final Action Date advances one month to December 1, 2015, in January, which positions EB-3 China’s Final Action Date five months ahead of EB-2 China, maintaining a climate favorable for downgrades. Charlie predicts that the EB-3 China Final Action Date will continue to advance at a rate of up to six weeks. China EB-3 Other Worker category will continue to have an earlier Final Action Date than EB-3 China due to excessive demand in this category.

The EB-3 India Final Action Date holds at January 1, 2009, for January, keeping it almost five months behind EB-2 India, maintaining a climate favorable for upgrades. Charlie predicts advancement of “up to” three weeks for EB-3 India, but notes that we should not expect to see any movement in this category until the demand begins to drop below his monthly target number usage.

EB-3 Other Worker Worldwide is likely to have a Final Action Date imposed in the coming months.