Issue 134 November 2019

USCIS Implements $10 Fee for H-1B Registration

U.S. Citizenship and Immigration Services has announced that it will require a $10 non-refundable fee for each H-1B resignation submitted by petitioning employers during the electronic registration system for cap-subject H-1B petitions.  According to USCIS, the registration fee “will support the new electronic registration system to make the H-1B cap selection process more efficient for both petitioners and the agency.” 

As a reminder, USCIS is slated to implement the electronic registration process for the fiscal year 2021 H-1B cap selection process, pending completed testing of the system.  In August 2019, the American Immigration Lawyers Association (AILA), along with 14 business, HR, and higher education associations, sent a letter to USCIS urging the agency to confirm whether it intends to mandate use of the electronic registration system for the FY2021 H-1B cap filing season.  USCIS has stated that it will announce the implementation timeframe and initial registration period once a formal decision has been made, and although USCIS indicates that it “will offer ample notice to the public in advance of implementing the registration requirement,” it has not yet done so. 

Chin & Curtis will continue to monitor any updates to the cap H-1B electronic registration process.

Details: USCIS announcement, https://www.uscis.gov/news/news-releases/uscis-implements-10-fee-h-1b-visa-registration

SCOTUS hears cases challenging the Trump administration’s rescission of DACA

On November 12, the Supreme Court considered challenges to the Trump administration’s decision to end Deferred Action for Childhood Arrivals (DACA), a President Obama-era initiative that offers legal protections, including work authorization and protection from deportation, to some immigrants who arrived in the United States as children. 

The Trump administration previously announced the end of the program in September 2017.  Since then, several lower federal courts have issued rulings enjoining the termination of the program.  The Supreme Court will consider whether the administration’s termination of the DACA program was arbitrary and capricious and therefore unlawful.

DACA currently protects over 700,000 young undocumented immigrants who came to the United States as children.  The program has allowed these individuals to work, graduate from college, start businesses, and contribute to the U.S. economy.  Although a more permanent solution, such as the American Dream and Promise Act that was passed by the U.S. House of Representatives earlier this summer, is necessary, DACA allows these individuals to remain and build a future in the only home many of them have ever known, and it would be devasting for immigrant youth were the Court to allow the termination of the program.

Details: “DACA Recipients Look to Supreme Court For Hope,” https://www.npr.org/2019/11/12/776556916/daca-recipients-look-to-supreme-court-for-hope

USCIS Proposes Increase Fees and Other Changes to Fee Structures

USCIS has announced that it is publishing a notice of proposed rulemaking to adjust its fee schedules by a weighted average increase of 21%.  According to the USCIS, current fees would leave the agency underfunded by approximately $1.3 billion per year.  However, USCIS has not offered evidence that this increase will lead to an improvement in the agency’s immigration benefit services.  Moreover, the proposed fee hikes, coupled with the elimination of vital fee waivers, would price many individuals and families out of our legal immigration system. 

Details: USCIS announcement, https://www.uscis.gov/news/news-releases/uscis-proposes-adjust-fees-meet-operational-needs; Proposed fee schedule: https://www.federalregister.gov/documents/2019/11/14/2019-24366/us-citizenship-and-immigration-services-fee-schedule-and-changes-to-certain-other-immigration

USCIS Initiates Production of Security-Enhanced Travel

In an effort to prevent the tampering, counterfeiting, and fraudulence of secure documents, on October 24, USCIS initiated the production of a new security-enhanced document, which resembles a U.S. passport and has two purposes. The new travel document can be used in lieu of:

  • Form I-327, Permit to Reenter the United States. Lawful permanent residents utilize the Form I-327 in order to return from temporary travel outside the U.S. and, in some instances, can use it instead of a passport; and
  • Form I-571, Refugee Travel Document. Individuals who have refugee or asylum status use the Refugee Travel Document in order to temporarily travel outside of the U.S. and, in some instances can use it instead of a passport.

There are numerous security features included in the new travel document, including:

  • Redesign of the booklet cover
  • Four montages containing three images of recognizable U.S. architecture utilized throughout the booklet
  • Combined use of first-, second-, and third-level security features (overt, covert, and forensic):
    • Overt: identifiable by visual inspection, such as the central image of the Statue of Liberty.
    • Covert: requiring a specialized tool, such as a magnifying glass, to identify fine detail artwork.
    • Forensic: requiring laboratory examination in order to identify.

Previous editions of the travel document will remain valid until their given expiration date.

Details: https://www.uscis.gov/news/alerts/uscis-begins-producing-security-enhanced-travel-documents.

USCIS Issues Policy Alert on EB-5 Modernization Final Rule

USCIS is revising its policy guidance in the USCIS Policy Manual to align with the EB-5 Immigrant Investor Program Modernization Final Rule, effective November 21, 2019.  Any petition filed on or after November 21, 2019 will be subject to the new rules.

Under the EB-5 program, applicants may seek an immigrant visa if they make a necessary investment in a new commercial enterprise in the U.S. and create a certain number of jobs.  The changes that USCIS is implementing include increasing the required minimum investment amounts from $1 million to $1.8 million (or from $500,000 to $900,000 for a “targeted employment area” (TEA); revising the standards for certain targeted employment area (TEA) designations; and granting DHS sole authority to designate high-unemployment TEAs. 

Congress initially developed the EB-5 program to attract foreign investment and create U.S. jobs.  However, these changes will make it more difficult for investors to qualify. 

Trump Administration’s Announced Bar on Immigrants Lacking Health Insurance Temporarily Halted by Court

In early October, Donald Trump issued a proclamation blocking the admission of individuals applying for immigrant visas who cannot demonstrate their ability to acquire health insurance within 30 days of their entrance into the United States. Any applicants who receive an immigrant visa after the order was to go into effect on November 3rd would need to demonstrate when applying for a visa that, within 30 days of entering the United States, they would have insurance in place. Individuals who were issued immigrant visas prior to November 3rd but entering after that date are not covered by the proclamation.

Under the executive action, approved health insurance coverage includes coverage under any of the following plans:

  • an employer-sponsored plan, including a retiree plan, association health plan, and coverage provided by the Consolidated Omnibus Budget Reconciliation Act of 1985;
  • an unsubsidized health plan offered in the individual market within a State;
  • a short-term limited duration health policy effective for a minimum of 364 days — or until the beginning of planned, extended travel outside the United States;
  • a catastrophic plan;
  • a family member’s plan;
  • a medical plan under chapter 55 of title 10, United States Code, including coverage under the TRICARE program;
  • a visitor health insurance plan that provides adequate coverage for medical care for a minimum of 364 days — or until the beginning of planned, extended travel outside the United States;
  • a medical plan under the Medicare program; or
  • any other health plan that provides adequate coverage for medical care as determined by the Secretary of Health and Human Services or his designee.

For individuals over the age of 18, Medicaid is not considered acceptable health insurance coverage.

A Federal Judge has issued a Temporary Restraining Order on the policy, which prevents its implementation for at least 28 days as of its issuance on November 2.

Details: White House Proclamation -  https://www.whitehouse.gov/presidential-actions/presidential-proclamation-suspension-entry-immigrants-will-financially-burden-united-states-healthcare-system/. TRO - http://www.visalaw.com/wp-content/uploads/Order-on-TRO-Doe-v-Trump.pdf.

State Department Releases December 2019 Visa Bulletin

According to the Department of State’s December Visa Bulletin, EB-1 cutoff dates for issuance of an immigrant visa will advance to July 15, 2018 for all countries except India and China.  China will advance to May 15, 2017, and India will remain at January 1, 2015. 

EB-2 and EB-3 worldwide will remain current, while China will advance to June 22, 2015 in the EB-2 category, and India will advance two days to May 15, 2009.  There is no advancement for China or India in the EB-3 category.  China will remain at November 1, 2015 and India will remain at January 1, 2009. 

USCIS has not yet announced whether it will continue the use of the Dates for Filing chart in December, as it has for the past two months.  The Dates for Filing will become current in the EB-1 category for all countries except India and China, but other dates remain unchanged from last month.