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Green card processing times for employment-based immigration expected to increase

 

Delays and increased processing times can be expected for employer-sponsored immigrants seeking green cards, based on a recently announced change by the US Citizenship and Immigration Services agency (USCIS).

In a press release dated August 28, 2017, USCIS stated that the agency plans, effective October 1, 2017, to begin interviewing employment-based immigrants. This will impact employer-sponsored professionals, skilled workers, executives, manager, and outstanding professors and researchers, as well as individually sponsored immigrants with extraordinary or exceptional ability.

The press release states: “Previously, applicants in these categories did not require an in-person interview with USCIS officers in order for their application for permanent residency to be adjudicated. Beyond these categories, USCIS is planning an incremental expansion of interviews to other benefit types.”

This statement is inaccurate. In fact, the agency used to personally interview all immigrants. Decades ago, the policy changed and employment-based immigrants were only interviewed if a review of the application showed a need for an interview or as a random, quality-control measure. The primary reason for the change was to devote agency resources to more important tasks, after the agency determined the incidence of fraud detected by in-person interviews was not significantly greater than for applications processed without interviews. In addition, waiving the interview process allowed the agency to consolidate processing at regional centers where government workers were better trained in the special requirements for such immigration. Finally, remote processing at regional centers without direct public contact minimized the inconsistent processing experienced at local offices, as well as the incidence of fraud and corruption by government workers in direct contact with the public.

As Sir Winston Churchill famously stated: “Those who fail to learn from history are doomed to repeat it.” Local interview processing times vary, but the new policy is likely to increase by more than four months the time it takes USCIS to process applications for adjustment of status and maybe much longer where local offices with significant immigrant populations, such as Silicon Valley, are doing the processing.

By the way, the State Department has always interviewed all immigrants. Although going this route is more costly in terms of travel and lost US work days, more immigrants and their employers may want to consider this option if USCIS processing times spiral out of control.

The full text of the agency’s press release can be found at the USCIS website and the Executive Order can be found at the White House website.

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Green card processing times for employment-based immigration expected to increase

USCIS fee changes, effective December 23, 2016

Shocked

The Department of Homeland Security (DHS) has published a final rule adjusting the fee schedule for many immigration applications and petitions processed by US Citizenship and Immigration Services (USCIS). The new fee schedule will become effective on December 23, 2016. Applications and petitions postmarked or filed on or after that date must include the new fees.

As determined by DHS, adjusting the fee schedule is necessary to fully recover costs and maintain adequate service. This is the first adjustment in the last six years.

Under this final rule, DHS will increase fees by a weighted average of 21 percent; establish a new fee of $3,035, covering USCIS costs related to processing the employment-based immigrant visa, fifth preference (EB-5) Annual Certification of Regional Center, Form I-924A; establish a three-level fee for the Application for Naturalization, Form N-400; and remove regulatory provisions that prevent USCIS from rejecting an immigration or naturalization benefit request paid with a dishonored check or lacking the required biometric services fee until the remitter has been provided an opportunity to correct the deficient payment.

While the fees for some petitions will remain the same, others will see significant increases. The highest increases are for the visas used by American businesses to bring skilled workers to the United States, immigrant investors creating jobs for Americans and immigrants acknowledged to have extraordinary ability.

The new fee schedule includes increased fee for the Form I-129 to $460 from $325. Form I-129 used for the most common work visas, including H-1B professional, O-1 extraordinary ability, and L-1 intracompany transfer visas, as well as E-1 treaty trader, E-2 treaty investor and E-3/FTA H-1B1/TN treaty professional visas processed in the United States rather than at an American consular post or preflight inspection unit abroad.

Fees for the Form I-140 used for EB-1, EB-2 and EB-3 employment-based immigrant visas were increased to $700 from $580.

One of the highest increases is for the Form I-526 required for an EB-5 immigrant investor creating at least ten jobs for American workers. Form I-526 fee was increased to an outrageous $3,675 from $1,500.

Family-based immigration fees are better, with only a 27 percent increase, to $535 from $420, for the Form I-130 used by US citizens and lawful permanent residents to sponsor certain close relatives to immigrate. The Form I-485 required for immigrants who process through the USCIS instead of an American consular post abroad was increased only slightly, to $1,140 from $985.

For a full list of the new fees please visit the USCIS website.

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USCIS fee changes, effective December 23, 2016

New rule extends US work authorization for certain foreign students

STEM image Professional

Important new US Department of Homeland Security (DHS) regulations allow F-1 foreign student visa holders with degrees from American universities in science, technology, engineering and math (STEM) to extend optional practical training (OPT) for 24 months beyond the 12-month period generally available to F-1 students on OPT. This 24-month extension effectively replaces the 17-month STEM OPT previously available. The new rule is effective May 10, 2016.

Requirements

To qualify:

  1. The employer must be enrolled in the voluntary e-verify program (see USCIS website)
  2. The student must have completed a bachelor’s, master’s or doctoral degree in a STEM field
  3. The job offered must directly relate to the student’s STEM degree

Transition rules

Pending STEM OPT extension applications adjudicated prior to May 10, 2016, will only be valid for 17 months. Beginning on May 10, US Citizenship and Immigration Services (USCIS) will issue Requests for Further Evidence asking students with pending STEM OPT extension applications whether they wish to amend their application from 17 to 24 months—perhaps one of the few times when lengthy government processing times will benefit students.

The new rule gives students with pending applications the option to withdraw now and file a new application with a 24-month request, but with the important reminder that a student can only file for a STEM OPT extension if post-completion OPT has not expired prior to government receipt of a new STEM OPT application.

Also, students who already have received a 17-month STEM EAD will be able to file for a 7-month extension between May 10, 2016 and August 8, 2016, so long as 150 days still exist before the expiration of their 17-month STEM EAD and they file within 60 days of the date their Designated School Official (DSO) enters the recommendation for the 24-month STEM OPT extension into the student’s SEVIS record and other requirements are met, and they meet all other requirements for the 24-month STEM OPT extension.

Background

An August 2015 blog post offers background about F-1 OPT, STEM OPT extensions and the litigation that called into question the validity of the old 17-month rule.

We also addressed this issue in October 2015, when DHS first published the proposed rule to address the litigation.

The new rule was expressly written to resolve the defects found in the administrative procedures used to pass the old rule. In addition to reviving the STEM OPT extension in compliance with required rulemaking procedures, DHS took the opportunity make the validity period even longer. This is certainly not the result desired by those who challenged the original rule in an attempt to limit executive authority to grant US employment authorization to foreign nationals.

Further information

The complete text of the DHS notice of the new rule is available at the Federal Register’s website. Furthermore, DHS has opened a website that contains more information on the new STEM rule.

Dentons lawyers help employers obtain and maintain E-Verify status, as well as regular and STEM OPT employment authorization document applications, employment eligibility verification I-9 records and visas to authorize employment in the US and in the more than 50 countries around the world where Dentons has offices.

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New rule extends US work authorization for certain foreign students

H-1B blast off countdown 2016

T minus 72 days. The countdown has begun.  The date is coming.  It will be here soon.

It is the biggest event of the year in United States immigration.

Hundreds of thousands will apply, but only a lucky few will be chosen.  Employers keen to recruit and employ the best and brightest talent from around the globe to meet American business needs are already gearing up.  Professionals eager to pursue their career in the United States are updating resumes and collecting diplomas and reference letters.  This program is not the best way for a country to succeed, but the United States Congress continues to lack the will and wisdom to change a law almost 25 years old.

Are you ready?

April 1, 2016, is the first day that the United States Citizenship and Immigration Services agency (USCIS) will accept new H-1B specialty occupation worker nonimmigrant visa petitions by employers for foreign professionals.  It is important for global mobility and human resource managers to start work now to secure preliminary Department of Labor approvals, foreign degree evaluations, etc., to be ready to file the petition for an April 1 receipt date.

Limited supply

Only a limited number of new H-1B visas are accepted each year due to legal quota restrictions.  Every year, 65,000 new H-1B visa petitions can be granted, of which 6,800 are set aside for citizens of Chile and Singapore under Free Trade Agreements with those countries. To the extent there were unused Free Trade Agreement H-1Bs, those are added to the quota for the next fiscal year.  There is an additional allocation of 20,000 new H-1B visa petitions that can be accepted if the foreign professional earned a graduate degree from a university in the United States.

Not all H-1B visa petitions are subject to numerical limits. Individuals already holding H-1B visas are counted against the quota, and petitions filed by institutions of higher education or related or affiliated nonprofit entities, nonprofit research organizations or governmental research organizations are exempt from the limits. The exemption for petitions filed for jobs only in Guam or the Commonwealth of the Northern Mariana Islands expired on December 31, 2015.

Overwhelming demand

Last year, the USCIS received so many new H-1B visa petitions in the first week of April that the agency ended the application window on April 7.  Approximately 233,000 new petitions were received, as compared to 172,500 in the prior year.  As the regulations mandate, officers then selected—at random—which envelopes to open and returned the rest unopened with the government filing fees.  Only then did the agency begin the often long process to approve or deny the selected petitions on the merits of eligibility.

This year, the USCIS will once again receive more than they are allowed to accept.  Again, the agency will randomly decide the envelopes to open and those to return unopened.  The likelihood of a petition being selected in April 2016 is likely to be much, much lower than last year, taking into consideration the current state of the economy, the relatively low rate of American unemployment in typical H-1B specialty occupations, and the labor needs of United States employers.

The countdown begins now (download dates directly into your Outlook)

launch

T minus 72 days (January 19):  Start working with legal counsel now.  Identify current and prospective employees who will need new H-1B visa petitions.

T minus 45 days (February 15):  By now, you and legal counsel should have requested the labor condition application certification from the Department of Labor.  Employers new to the process or who have not filed recently will need to create the appropriate accounts with the Department of Labor. Because the USCIS relies on Dunn & Bradstreet data (DUNS) as part of its employer background verification process, it is important for employers to create or update the company’s DUNS records to avoid inconsistencies with H-1B visa petition filings.

T minus 30 days (March 1):  Have all the required USCIS forms and supporting documents been signed and filing fee checks prepared?  There is still some time left to get last minute details completed, but this is when it gets very hectic.  Government systems often become overloaded and delays at the Department of Labor for late filings are common.

T minus 1 day (March 31):  Envelopes should be properly addressed and delivered to the express service of choice with next business morning delivery instructions.

T minus 0 (April 1):  Just like at NASA ground control, this is the stage in the process where all the hard work resulted in successful delivery of the visa petition and you have to wait for the USCIS to announce whether the petition is selected or returned—usually within 3 weeks or so.

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H-1B blast off countdown 2016