Business Immigration Update
DHS’ Regulatory Agenda for Fall 2019
On November 20, 2019, the Trump Administration released its Fall 2019 Unified Agenda, the semiannual summary of projected regulations by federal agencies. The Department of Homeland Security (DHS)’s regulatory agenda mostly includes proposals previously published in the 2017 and 2018 Unified Agendas related to proposed changes in the H-1B, H-4 EAD, F-1 and OPT programs. The Unified Agenda also includes new proposals that are in development with anticipated publication dates in late 2020. Below we provide a short summary of the regulatory proposals previously announced in the Unified Agenda and the new proposals that relate to business immigration. Please note that the projected publication dates listed below are the government’s expected or anticipated dates of publication provided in the Unified Agenda and are subject to change. Proposals Previously Announced in the Unified Agenda
Removing H-4 Dependent Spouses from the Classes of Aliens Eligible for Employment Authorization
The DHS’ much-anticipated and highly-publicized H-4 EAD rescission rule for certain spouses of H-1B holders has been on the Unified Agenda since Spring 2018. The proposal has been pending regulatory review by the Office of Management and Budget (OMB) since February 20, 2019. As noted in our previous Business Immigration Update, the DHS stated in a court filing in the ongoing federal litigation case Save Jobs USA v DHS that it is unlikely that the proposed H-4 EAD rescission rule will be published before Spring 2020. Projected Publication Date: March 2020
Strengthening the H-1B Nonimmigrant Visa Classification Program
This proposal is another carry-over from the Spring 2018 Unified Agenda. DHS proposes “to revise the definition of specialty occupation to increase focus on obtaining the best and the brightest foreign nationals via the H-1B program and revise the definition of employment and employer-employee relationship to better protect U.S. workers and wages.” The DHS proposal to change the definition of specialty occupation will likely have a negative impact on many employers of H-1B workers and will likely lead to extensive litigation as the term “specialty occupation” is defined by statute and cannot be changed by administrative rulemaking. Under the Administrative Procedures Act, such rulemaking is limited to interpreting the statutory definition. Furthermore, it remains unclear how DHS plans to revise the definition “employment” or “employer-employee relationship” to ensure that appropriate wages are being paid as current USCIS policy interpretation is already restrictive. Projected Publication Date: December 2019
Establishing a Maximum Period of Authorized Stay for Students, Exchange Visitors, and Media Representatives
First announced in the Fall 2018 Unified Agenda, DHS’ proposal seeks to modify the period of authorized stay for certain categories of nonimmigrants (F, M, and J visas) who are admitted to the United States with "duration of status” (D/S). Foreign students are generally admitted with duration of status to allow them to pursue a full course of study, plus any authorized practical training following completion. The DHS’ proposal will impose a maximum period of authorized stay for each applicable visa category, with options for extensions. The purpose of the proposed rule is to decrease Immigration Customs and Enforcement’s (ICE) perceived high incidence of nonimmigrant student overstays. Projected Publication Date: February 2020
Practical Training Reform
Originally appearing in the Fall 2017 Unified Agenda, the DHS/ICE proposes to amend existing regulations and revise the practical training options available to nonimmigrant students on F and M visas. Projected Publication Date: August 2020 New Proposals Announced in Fall 2019 Unified Agenda
Strengthening the L-1 Nonimmigrant Classification
The DHS will propose to revise the definition of “specialized knowledge” for L-1 visas, to clarify the definition of employment and employer-employee relationship, and ensure employers pay appropriate wages to L-1 visa holders. Projected Publication Date: September 2020
Enhancing the Integrity of the Unlawful Presence Inadmissibility Provisions
The DHS’ proposal will describe how unlawful presence accrues for the 3-year and 10-year bar, including whether certain failures to abide by the conditions of admission as a nonimmigrant result in the accrual of unlawful presence. Projected Publication Date: September 2020
Federal Court Rules Suspicionless Border Searches of Electronic Devices Unconstitutional
On November 12, 2019, the US District Court of Massachusetts issued a ruling that U.S. Customs and Border Protection (CBP) agents must have reasonable suspicion of digital contraband before searching a traveler’s phone, laptop, or other digital device at U.S. ports of entry. The case was filed by the American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF) on behalf of 11 travelers (10 U.S. citizens and 1 lawful permanent resident) whose smartphones and laptops were searched without individualized suspicion at U.S. ports of entry. In the ruling, the Court declared that the CBP’s search and/or seizure of the plaintiffs’ electronic devices, without reasonable suspicion, violated the Fourth Amendment. The Department of Homeland Security (DHS) updated its policies governing border searches of electronic devices in January 2018. Under the new policies, CBP agents are allowed to search electronic devices at the border for "information stored on the device" that is accessible through software on the device. Per the ACLU, “the number of electronic device searches at U.S. ports of entry has increased significantly. Last year, CBP conducted more than 33,000 searches, almost four times the number from just three years prior.” The District Court did not issue an injunction and has yet to issue an order on how the government is to implement its ruling. We will continue to monitor the CBP policy and the federal case, and will provide updates when more information becomes available.
December 2019 Visa Bulletin The Department of State (“DOS”) Visa Office has released the December 2019 Visa Bulletin. Similar to the November Visa Bulletin, forward movement for certain employment-based visa categories continues at up to 2-3 months. The EB-1 category for China will move forward by 3.4 months and all other countries will see an advancement of 1.5 months while EB-1 India will remain the same at January 1, 2015. EB-1 India is not expected to advance anytime soon as DOS reported that 17% of the targeted EB-1 India numbers set aside for Q1 of the Fiscal Year had already been reached in October 2019. The DOS predicts that the EB-1 category for all other countries could potentially return to Current in mid Fiscal Year if demand continues at the same pace. The EB-2 category for China will move forward by 3 months while EB-2 India will continue to slowly advance by day increments. The EB-3 category for China and India will continue to stall at the Final Action Dates established at the beginning of Fiscal Year 2020 on October 1, 2019 As of November 25, 2019, the USCIS has yet to confirm which Application Chart will be used for the month of December 2019. See our full posting on the December 2019 Visa Bulletin.
Update on USCIS’ Proposed Rule for Fee Schedule for Fiscal Year 2019/2020 and Changes to Certain Immigration Benefit Request Requirements As mentioned in last week’s newsletter, the Department of Homeland Security (DHS) published its proposed rule for the U.S. Citizenship and Immigration Services (USCIS) FY 2019/2020 Fee Schedule on November 14th. The proposed rule will adjust the 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 addition, the USCIS plans to change certain requirements for applications, including changes to premium processing and establishing different fees for petitions for nonimmigrant workers under H, L, TN, and O. Below is a brief outline of the relevant proposed changes that will affect business immigration if implemented. Please note that the fees listed are subject to change as the proposed rule is still in the notice and comment period under the rulemaking process. Comments are due by December 16, 2019.
DHS proposes to remove the separate biometrics fees and will incorporate the cost for biometric services into the underlying immigration benefit request fees.
Changes to Premium Processing
DHS proposes to change the 15 calendar-day period for premium processing requests to 15 business days.
Separating I-129, Petition for a Nonimmigrant Worker on Different Forms & Different Fees
DHS proposes to separate Form I-129 into several forms and proposes different fees for these new forms.
USCIS Proposed Fees for Separated Form I-129 for Fiscal Year 2019/2020
Fees for Adjustment of Status Application with EAD and Advance Parole Requests
DHS proposes to remove the bundled fee for Form I-485 Application to Adjust Status and the interim benefits for work authorization (EAD) and advance parole (travel document). If the proposed rule is implemented, there will be separate filing fees for Form I-765 (EAD) and Form I-131 advance parole filed concurrently with a Form I-485, or after USCIS accepts their Form I-485 and while it is still pending. In addition, the DHS proposes to eliminate the Form I-485 fee of $750 for minor children, and the proposed I-485 fee will apply to all applicants, regardless of age. Current and Proposed Fees for EAD/AP and Adjustment of Status with Interim Benefits
83% Fee Increase for N-400, Application for Naturalization
DHS proposes to increase the fee for Form N-400, Application for Naturalization, from $640 to $1,170, a $530 increase. In the proposed rule, DHS proposes the 83% to recover the full cost of adjudicating the Form N–400, stating: “In crafting prior fee rules, DHS reasoned that setting the Form N-400 fee at an amount less than its estimated costs and shifting those costs to other fee payers was appropriate in order to promote naturalization and immigrant integration. DHS now believes that shifting costs to other applicants in this manner is not equitable given the significant increase in Form N-400 filings in recent years.”
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Goeschl Law Corporation’s Business Immigration Alerts, Updates, and Briefings provide a general description of the law; they are not intended to provide specific legal advice or to establish an attorney-client relationship. Goeschl Law Corporation provides regular updates on important business immigration law and policy news through our Business Immigration Alerts for breaking news, and our Business Immigration Update newsletter which provides a weekly summary of immigration news. Our Business Immigration Briefing provides an in-depth analysis on specific immigration law and policy changes. Permission is granted to make and redistribute, without charge, copies of this entire document provided that such copies are complete and unaltered and identify Goeschl Law Corporation as the author. All other rights reserved.