Tag Archives: DHS

USCIS Postpones Administrative Furlough

USCIS Postpones Administrative Furlough Scheduled for August 30, 2020

USCIS has been planning furloughs for several months, citing declining revenues due to COVID-related closures and lower filing volumes. The agency previously announced that almost two-thirds of the workforce would be furloughed starting August 30, 2020. In an attempt to prevent the workforce and services disruption, the U.S. House of Representatives unanimously passed the Emergency Stopgap USCIS Stabilization Act. It still faces challenges in the Senate before being sent to the White House for the President’s signature.

Earlier today, USCIS notified employees that the agency was “in a position to cancel the current administrative furlough that was scheduled to begin on Aug. 30, 2020.” The announcement credited the agency’s efforts to “find savings” by making spending cuts. The agency warns that the “severe cost cutting efforts” will “have an impact on agency operations.” The agency implores Congress to take action to find a long-term fix.

USCIS predicts the following operational impacts may occur:

  • Reduction in the number of contractors who assist the federal workforce
  • Wait times for pending case inquiries through USCIS Contact Center will increase
  • Case processing times will increase
  • Naturalization adjudications will slowdown

While a new target date is not set, the message to the workforce noted that a “future furlough scenario is still possible” unless Congress takes action.

Don’t wait until the last minute to file for new visas or extensions! Contact us to get started before the delays affect your immigration status.

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Employer I-9 Update: Using I-797s During EAD Production Delays

Employer I-9 Update: Using I-797s During EAD Production Delays

COVID-19 has led to unprecedented EAD production delays, leaving many foreign workers without proof of work authorization. A federal judge ordered the delayed green cards and EADs to be printed within seven days, but with one production facility shut down and a furlough looming, workers may still be left waiting.

USCIS announced that due to the printing production delays, employers may now accept Form I-797, Notice of Action, with a notice date on or after 12/1/2019 through 8/20/2020 (that indicates approval of the EAD) during I-9 verification. The approval notice is an acceptable list C #7 document for compliance through December 1, 2020, even though the notice states it is not evidence of employment authorization.

The announcement notes that the I-797 does not provide evidence of identity or serve as a document establishing both identity and employment authorization. Any employee presenting an approval notice for new employment must also prove their identity with acceptable List B documents. Employees presenting the document for reverification purposes can use the I-797 as proof of work authorization under list C.

The employer must reverify any employee who presents the I-797 Notice of Action as a List C document by December 1, 2020.

Learn More

UPDATED: I-9 Compliance Flexibility Extended Through September 19, 2020

Resuming on Wednesday, September 16 are our weekly immigration webinars! Register for the webinar or email us with any additional questions.

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Citizenship & Immigration Services to Furlough Majority of Workers

Citizenship & Immigration Services to Furlough Majority of Workforce

UPDATE 8/25/2020: USCIS Postpones Administrative Furlough

USCIS requested $1.2 billion from Congress as part of a coronavirus relief package, but when negotiations seemed to fall through, the President signed a series of executive orders instead. The orders did not address the agency’s funding requests. Earlier this month USCIS notified approximately 13,400 of 20,000 employees that they would be furloughed starting August 30, 2020.

USCIS is primarily funded by fees collected from providing immigration services. Previously this year, the agency announced fees would be increasing by an average of 20% to recover operational costs. Those changes go into effect on October 2, 2020. The Department of Homeland Security (DHS) claimed that the current fee structure would leave the agency underfunded by $1 billion per year. In the earlier request to Congress, USCIS proposed a 10% service fee surcharge in addition to $1.2 billion in funding.

With a furlough of two-thirds of the USCIS workforce, individuals and businesses applying for immigration benefits may see additional delays in processing. Some categories are already suffering from delays and the earlier shutdown of a printing facility led to backlogs for green cards and EADs.

Don’t wait until the last minute to file for new visas or extensions! Contact us to get started before the delays affect your immigration status!

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Top Homeland Security Appointments are Invalid

Top Homeland Security Appointments are Invalid

The Government Accountability Office (GAO) found that the heads of the Department of Homeland Security were appointed without regard to the Federal Vacancies Reform Act. GAO determined the appointments of Chad Wolf, acting secretary of Homeland Security, and Ken Cuccinelli, acting deputy secretary of Homeland Security, were invalid and did not follow the proper chain of succession in 2019.

The GAO stated:

“Upon Secretary Kirstjen Nielsen’s resignation on April 10, 2019, the official who assumed the title of Acting Secretary had not been designated in the order of succession to serve upon the Secretary’s resignation. Because the incorrect official assumed the title of Acting Secretary at that time, subsequent amendments to the order of succession made by that official were invalid and officials who assumed their positions under such amendments, including Chad Wolf and Kenneth Cuccinelli, were named by reference to an invalid order of succession.” (Emphasis added.)

The statement continued to explain that GAO had not reviewed the legality of other actions taken by Wolf or Cuccinelli, but are “referring the matter to the Inspector General of DHS for review.” The GAO opinion is likely to result in lawsuits questioning the legality of the actions Wolf and Cuccinelli have taken since leading the DHS. Several of the agency’s controversial policies have been struck down by federal judges in recent months, including heightened requirements for H-1B visas that led to additional denials and shorter approvals.

Challa Law Group will monitor the court challenges and report the latest updates.

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USCIS Fees Increase on October 2, 2020

USCIS Fees Increase on October 2, 2020

On July 31, 2020 the Department of Homeland Security announced an increase to fees for immigration and naturalization benefit requests. Although most fees are increasing, a $10 discount is offered for online submission where available.

Employment Visa Updates

Employers are understandably concerned about the potential effect the rule has on H-1B, L-1, and other immigrant employees. For employers with more than 50 employees and more than 50% of those employees in H-1B or L-1 status, a $4,000 fee applies. The rule expands the Public Law 114-113 fee of $4,000 to both H-1B and L-1 new employment as well as extensions of stay for employers that meet the 50 employee, 50% dependability test. The Public Law fee will apply regardless of whether the fraud fee applies. Extension requests for H-1B, L-1A, and L-1B visas filed by the same petitioner for the same employee or H-1B, L-1A, and L-1B amended petitions were previously exempt from the additional fee.

DHS will now separate the I-129 into forms based on case type and eliminate the current supplements to the I-129 form. This also allows DHS to charge separate fees for each form depending on the classification. DHS states that the current base filing fee of $460 doesn’t accurately capture the costs associated with adjudication since the fee is paid regardless of how many nonimmigrant workers will benefit from the petition or application, the type of worker evaluated, whether an employee is identified, or how long it takes to adjudicate the different nonimmigrant classifications.

The rule updates the filing fees as follows:

Case Type Current Fee Final Fee Change Percent Change
E-1

E-2

TN

$460 $695 $235 51 percent
H-1B $460 $555 $95 21 percent
H-2A
(named beneficiaries)
$460 $850 $390 85 percent
H-2B
(named beneficiaries)
$460 $715 $255 55 percent
L-1A

L-1B

$460 $805 $345 75 percent
O-1 $460 $705 $245 53 percent
H-2A
(unnamed beneficiaries)
$460 $415 -$45 -10 percent
H-2B
(unnamed beneficiaries)
$460 $385 -$75 -16 percent


Green Card Fee Changes

Children under the age of 14 filing for a green card with their parents were previously able to pay a reduced fee of $750 instead of the $1,140 (plus $85 biometrics fee) currently charged to older applicants. All applicants will pay $1,130 under the new rule.

DHS also chose to separate the filing fees for Form I-765, Application for Employment Authorization, and Form I-131, Application for Travel Document, when either filed concurrently with Form I-485 or after the Form I-485 has been accepted and is still pending. Current regulations allow individuals to pay the I-485 fee, but also file the I-765 and I-131 without additional fees if filed concurrently.

The rule claims: “Debundling allows individuals to pay for only the services actually requested. Thus, many individuals may not pay the full combined price for Forms I-485, I-131, and I-765.” The newly established fees are as follows:

  • Form I-131, Application for Travel Document: $590
  • Form I-765, Application for Employment Authorization: $550
  • Form I-485, Application to Register Permanent Residence or adjust Status: $1,130

Individuals applying for work and travel documents along with their permanent residence application will now pay a total of $2,270.

Citizenship Fees

DHS will remove the N-400 fee waiver (Form I-942) and the reduced fee option “in order to recover full cost for naturalization services.” The rule also removes the fee waiver for the N-600, Application for Certificate of Citizenship. However, the removal of fee waivers will reduce the cost of Forms N-600 and N-600K because the increased fee would no longer need to cover the cost of the fee-waived form adjudication.

However, the N-400 would not be afforded the same price decrease as the N-600: DHS raised the naturalization fee an astounding 83% from $640 to $1,170 for the paper-based filing. With the removal of the reduced fee option, naturalization may be financially out of reach for many families.

Premium Processing

Currently, petitioners or applicants can pay $1,440 for certain employment-based petitions to be adjudicated within 15 calendar days. The new rule will change the 15-day calculation from calendar days to business days, while also excluding federal holidays and regional or national office closures due to weather or other causes.

The rule also states that the 15-day period be paused when USCIS issues a notification of an approval, denial, RFE, or NOID. The rule would also clarify that a new 15 business day period will begin upon receipt of an RFE or NOID response. If an investigation is opened for fraud or misrepresentation, USCIS can retain the fee and not reach a conclusion to the request within 15 days.

The agency claims that the shift to calculating by business days will allow USCIS additional time to complete processing on a premium processing petition and could reduce the need for USCIS to suspend premium processing when request filing volumes are high.

Payment Updates

USCIS will eliminate the $30 returned check fee because the fees associated with collecting the charge were higher than the returned check fees actually collected. However, petitioners and applicants should still ensure that adequate funds are available to avoid processing delays.

Another shift that has the potential to trip up applicants and petitioners is the planned updates to certain form instructions to only allow certain payment types for certain forms. For example, USCIS may determine that it only wants to accept credit or debit card payments for naturalization. USCIS could also decide that only a check or money order is acceptable payment for a certain form. The rule does not modify the instructions at this time, but states:

“In this final rule, DHS does not restrict the method of payment for any particular immigration benefit request. This final rule clarifies the authority for DHS to prescribe certain types of payments for specific immigration benefits or methods of submission.”

Extra precautions must be taken to review form instructions every time a case is filed to avoid a processing delay due to an incorrect payment type.

Biometrics Fees

The new rule incorporates biometrics fees into the underlying immigration benefit request to “simplify the fee structure, reduce rejections of benefit requests for failure to include a separate biometric services fee, and better reflect how USCIS uses biometric information.” The fee includes FBI name checks, FBI fingerprints, Application Support Center (ASC) contractual support, and biometric service management (including federal employees at ASC locations). The rule outlines that a separate biometric services fee will be retained for Temporary Protected Status in the amount of $30, but requests for other immigration benefits will include the biometric fee.

Secure Mail Initiative

We have seen many clients suffer when the United States Postal Service (USPS) loses important immigration notifications. The rule announced that USCIS will implement Signature Confirmation Restricted Delivery (SCRD) as the sole method of delivery of secure USCIS documents. USPS states that Signature Confirmation requires that the recipient or another responsible person at the residence be present to sign for the item and then the sender will receive the signature and name of the recipient and the date, time, and location of the delivery. The rule outlines states

“USCIS and applicants can track their document using the USPS website up to when the document is delivered. Recipients will also have the ability to change their delivery location by going to the USPS website and selecting “hold for pickup” to arrange for pickup at a post office at a date and time that suits them.”

Applicants and petitioners should ensure that accurate addresses are submitted prior to the case filing.

Timeline for Rule Implementation

This final rule is effective Oct. 2, 2020. Any application, petition, or request postmarked on or after this date must include payment of the new, correct fees established by this final rule and utilize the updated forms.

Are you ready to start your case prior to the fee and process shifts? Contact us at info@challalaw.com or 804-360-8482 to get started today.

DHS Defends H-4 EAD in Court Brief

DHS Defends H-4 EAD in Court, Plans to Rescind Work Authorization Through Agency Processes

Earlier this month, the U.S. Department of Homeland Security argued that a federal judge should not block work authorization for certain spouses of H-1B visa holders in the U.S. in response to a lawsuit brought by U.S. technology workers. In the Save Jobs USA v. DHS. lawsuit, the workers purport that DHS had no authority to issue work authorization to H-4 spouses in the first place and that the program should end immediately.

However, DHS’s argument to the judge shouldn’t be seen as a defense for the H-4 EAD, but rather support for the agency’s intention to rescind the rule through rulemaking. The DHS has repeatedly noted its intention to issue a Notice of Proposed Rulemaking (NPRM) to remove work authorization for dependents of certain H-1B visa holders.

DHS first extended eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants seeking employment-based permanent residence in 2015. That rule has been under reconsideration as the Trump administration signaled its intent to remove work authorization for H-4 dependents in late 2017.

The proposed rule moved forward to review by the Office of Management and Personnel, where it has been held up for over a year. While the proposed regulation is not available for public review yet, some have predicted that the rule could be published in the Federal Register this spring, as it still remains on the Spring Regulatory Agenda.

While the final rule will not be available until it is published in the Federal Register, we expect that the rule will provide a timeline for no longer accepting H-4 EAD applications and determine when current H-4 EAD holders will need to stop working (unless obtaining an alternative work-authorized status). If the rule is rescinded, there could be additional litigation to challenge the ruling. Individuals currently working on the H-4 EAD should consider an independent work-authorized status if available.

Please contact us at info@challalaw.com if you would like to discuss options for an independent work-authorized status.

USCIS Grants Extensions for RFE and NOID Responses

Responses Accepted Within 60 Days of Deadlines

UPDATE on 3/30/2020: USCIS Clarifies & Expands Flexibility for RFE, NOID, NOIR, NOIT Responses

U.S. Citizenship and Immigration Services announced that due to the ongoing effect of the COVID-19 pandemic, the agency was “adopting measures to minimize the immigration consequences associated with responding to requests for evidence (RFEs) and notices of intent to deny (NOIDs) dated between March 1 and May 1, 2020.

Any responses to RFEs or NOIDs with deadlines between March 1 and May 1, 2020 that are submitted within 60 calendar days after the deadline, will be accepted for consideration by USCIS. The agency stated additional updates will be provided as the situation develops.

Over 200 organizations, including the American Immigration Lawyers Association’s New York Chapter, have written to the the U.S. Department of Justice, Executive Office for Immigration Review, Department of Homeland Security, U.S. Citizenship and Immigration Services, and Immigration and Customs Enforcement to request “policies and protocols to fully and effectively respond to the crisis currently being caused by COVID-19.” The letter states that “immigrants and the providers and advocates who help them to navigate these systems will suffer serious hardships that raise due process concerns.”

The letter has requested that courts be closed and deadlines extended. Some of the additional requests are below:

  • Address “age-outs” caused by COVID-19
  • Issue automatic work authorizations and renewals during the length of the pandemic
  • Suspend the issuance of new RFEs and NOIDs until offices resume normal operations
  • Waive requirements for original signatures and original photographs

USCIS recently announced that reproduced original signatures are acceptable for forms that typically require original “wet ink” signatures. We will keep you posted on additional updates to these requests to the respective agencies.

Visit our COVID-19 Resource Page for Employers & Foreign Workers to read about other critical immigration updates.

Federal Rule Allows DHS to Track Immigrants (and Citizens) Online

On September 18, 2017, the Department of Homeland Security published a new rule in the Federal Register proposing a modification of how individuals are tracked as they move through the immigration process. The new rule will expand the types of information stored in an individual’s file, including “social media handles, aliases, associated identifiable information, and search results.” The rule also allows DHS to “update record source categories to include publicly available information obtained from the internet, public records, public institutions, interviewees, commercial data providers, and information obtained and disclosed pursuant to information sharing agreements.”

The rule outlines that any immigrant would be subject to this information collection, including lawful permanent residents, naturalized U.S. citizens, individuals petitioning for benefits under the INA on behalf of another individual, relatives and associates of any of the individuals listed above who are subject to the INA, and approximately ten other separate categories. Also included in the list of individuals covered under the system are preparers and interpreters assisting an individual seeking immigration benefits and attorneys who are recognized by USCIS or accredited by the BIA. This type of scrutiny could have a chilling effect on those who assist immigrants in navigating the legal system.

Any wide scale collection of information on the listed individuals would not only include “immigrants” but many naturalized and U.S.-born citizens, either as directly collected by the law or as a result of their communications with individuals in the listed categories. The rule also includes “law enforcement officers who certify a benefit requestor’s cooperation in the investigation or prosecution of a criminal activity.” The certification is one requirement for individuals applying for a U visa, which is a nonimmigrant visa reserved for “victims of certain crimes who are currently assisting or have previously assisted law enforcement in the investigation or prosecution of a crime, or who are likely to be helpful in the investigation or prosecution of criminal activities.” Officers may hesitate to provide this certification knowing that they could potentially be subject to additional monitoring, leading to increased distrust between the immigrant community and law enforcement and other unwanted outcomes in communities across the country.

There are a number of federal statutes that this policy may affront, but particularly the rule raises questions in terms of its constitutionality, as it could impact First and Fourth Amendment rights of many U.S. citizens. The Fourth Amendment to the U.S. Constitution places limits on search and seizure by the government, and this protection often hinges on what is deemed to be “public” and therefore imputing license and consent. Where probable cause or a warrant is needed to enter an individual’s house or vehicle, the Fourth Amendment does not limit the government’s ability to follow people on a public street. Our daily internet activities are increasingly subject to the same types of arguments: does the act of posting from a social media account imply consent by placing the information on a public domain? Alternatively, users can limit who sees posted content by adjusting privacy notifications and designating what is available to the general public. Does this indicate that the information resides in the private domain because an invitation is necessary? These questions will have to be addressed as regulations evolve in our increasingly digital world.

The Federal Register states that “the purpose of this system of records is to facilitate administration of benefits and enforcement of provisions under the INA and related immigration statutes.” However, permanent residents and naturalized citizens have already undergone intense vetting procedures and U.S. citizens are no longer seeking any immigration benefits. Including these individuals (and even natural-born citizens who have never sought immigration benefits), seems contrary to the system’s purpose and could lead to increased costs for data collection and storage.