DACA Hearing before the U.S. Supreme Court
Yesterday, November 12, 2019, the U.S. Supreme Court heard oral arguments on the several legal challenges to the Trump administration's decision to end the Obama-era DACA (Deferred Action on Childhood Arrivals) program, which has provided more than 700,000 people the availability of deferred action and work authorization since it went into effect in 2012. Since the Trump Administration’s announcement in September 2017 that it would terminate the DACA program by March 5, 2018, several lower federal courts have halted the rescission of the program through nationwide injunctions. At issue before the Supreme Court justices is whether the courts have the right to review the Trump Administration’s decision to end the program, and whether the rescission was lawful because the Administration failed to adequately identify how the DACA program was legally or constitutionally defective.
Following the Supreme Court’s historical deference to the presidency, early reports indicate that the Supreme Court’s conservative majority appear ready to side with the Trump Administration. A high court ruling is expected no later than June 2020. We will continue to monitor the case and will provide updates as more information becomes available.
USCIS Announces Implementation of H-1B Registration Fee
On November 7, 2019, the USCIS published a final rule that will require a $10 non-refundable fee for each H-1B registration submitted by petitioning employers in the H-1B electronic pre-registration process for the cap lottery. The final rule will become effective on December 9, 2019.
USCIS stated in its recent announcement that it anticipates implementation of the H-1B electronic registration system for next year’s H-1B cap season in April 2020, pending completed testing of the system. The agency will announce the implementation timeframe and initial registration period in the Federal Register once a formal decision has been made, and USCIS will offer ample notice to the public in advance of implementing the registration requirement. Upon implementation of the electronic registration system, petitioners seeking to file H-1B cap-subject petitions, including those eligible for the advanced degree exemption, will first have to electronically register with USCIS during a designated registration period, unless the requirement is suspended.
Premium Processing Fee Increase Effective December 2, 2019
On October 30, 2019, the USCIS announced that it will be adjusting the filing fee for premium processing from $1,410 to $1,440 for Form I-129, Petition for Nonimmigrant Worker, and Form I-140, Immigrant Petition for Alien Worker. The fee increase will take effect on December 2, 2019. All Form I-907 requests for premium processing, postmarked on or after December 2nd, must include the new fee.
Premium processing is an optional service for 15-day processing of certain Forms I-129 and I-140 petitions. The fee for this service is paid in addition to the petition filing fee and any other applicable fees.
USCIS to Publish Proposed Rule on Fee Increase
On November 8, 2019, the USCIS announced that it will be publishing a notice of proposed rulemaking in the Federal Register to adjust its fee schedule for 2019-2020. The USCIS last updated its fee structure in Fiscal Year 2017. The proposed rule will adjust the USCIS fee schedule by a weighted average increase of 21% to cover the agency’s increased costs to adjudicate immigration benefit requests, detect and deter immigration fraud, and thoroughly vet applicants, petitioners, and beneficiaries. In an unpublished version of the proposed rule, the USCIS plans to add new fees for certain benefit requests, establish different fees for petitions for nonimmigrant workers under H, L, TN, and O, and limit the number of beneficiaries on certain forms to ensure that USCIS has the resources it needs to provide adequate service to applicants.
The proposed rule is scheduled to be published in the Federal Register on November 14, 2019. We will provide a detailed summary of the proposed changes shortly.
Update on H-4 EAD Federal Litigation Case and Current Status on Proposed H-4 EAD Rescission Rule
On November 8, 2019, the federal appeals court reversed the lower district court’s 2016 grant of summary judgment in favor of DHS in the federal litigation case, Save Jobs USA v. DHS. The appeals court concluded that Save Jobs USA had demonstrated standing and therefore can pursue its legal challenge on the basis that the DHS’s H-4 EAD rule would subject its members to an actual or imminent increase in competition for U.S. jobs. The case has been remanded to the district court to decide whether the DHS had the statutory authority to grant work authorization to certain spouses of H-1B nonimmigrant workers..
There is no new update on the DHS’ proposed rule to rescind the H-4 EAD program. The DHS has yet to publish its proposed rule, which has been pending regulatory review by the Office of Management and Budget (OMB) since February 20, 2019. Per our previous alert, the DHS stated in a court filing with the federal appeals court that it is unlikely that the proposed H-4 EAD rescission rule will be published before Spring 2020.
Poland formally designated as a Visa Waiver Program Country Starting November 11, 2019
On November 5, 2019, the DHS published a final rule in the Federal Register designating Poland as a country eligible to participate in the Visa Waiver Program. Starting on November 11, 2019, the Electronic System for Travel Authorization (ESTA) is available for applications by Polish citizens.
Under the Visa Waiver Program, citizens and nationals of designated countries are able to apply online through ESTA for authorization to travel to the United States for tourism or business purposes for up to 90 days without obtaining a U.S. visa. These authorizations are valid for two years. Polish citizens with B1/B2 visas should continue to use their visa for travel to the United States. While DHS began accepting applications on November 11th for Polish citizens, the Department reminds first-time ESTA applicants that it may take up to 72 hours for processing.
See DHS's press release on Poland's designation as a Visa Waiver Program country.