Tag Archives: uscis

Department of State Visa Backlog Update

Only have a few minutes? Here are the key takeaways:

  • In January of 2020, the NVC backlog was at 80,000. Fifteen months later, the current number of applicants that are ready for interviews is 481,965.
  • DOS is prioritizing family unification with four priority tiers:

    Tier 1
    are family-based immediate relative visas and adoption-based visas, as well as age-out cases and certain special immigrant visas.
    Tier 2 is going to be other immediate relative visas for spouses, fiancés, parents, and returning resident visas.
    Tier 3 is family preference visas, other special immigrant visas for certain employees of the US government
    Tier 4 includes all other immigrant visas, including employment-preference visas and diversity visas.
  • Fiance visas are part of a National Interest Exemption and are not subject to geographical travel restrictions.
  • The Diversity Visa is a fiscal year program, so as regulations currently stand, all visas must be issued or approved by September 30, 2021 or else they cannot be utilized.
  • DOS is urging patience as consular posts continue to deal with the effects of the pandemic.

Summary of Q & A with Department of State’s Neal Vermillion

Neal Vermillion is a division chief in the Visa Office of the Bureau of Consular Affairs. His division is the Office of Field Operations, which provides guidance to consular sections, embassies, and consulates around the world. He has served for the DOS since the early 2000s all over the world in different field offices and consulates. He is glad to have the opportunity to talk and answer questions about the unprecedented situation with the visa backlog.

 This event is intended to address issues of general interest related to the content of the visa backlog. Questions and answers have been paraphrased and should not be interpreted as verbatim quotes.

Neal would like to go over the recent history of the backlog as a primer before beginning his Q&A:

Overseas immigrant visa processing has been shut down due to the pandemic for the past year, which has affected the immigrant visa backlogs in an interesting way. Last spring, President Trump signed Presidential Proclamation 10014, which prevented the issuance of many immigrant visas. There are still many geographic proclamations in effect which have been issued to protect the health and security of Americans. Proclamations are in effect which cover 33 countries. These issues have all contributed to the creation of an unprecedented backlog. Getting out of the backlog is an ongoing process, although it will be hindered by the ongoing nature of the pandemic.

The reopening process has been hampered by slow vaccination rates outside of the United States, where the pandemic remains a much more serious problem. Neal would like the listeners to know that the Department of State is aware of the problems that visa applicants face and is committed to providing relief and decreasing the Immigrant Visa backlogs.

What is the DOS doing to decrease the visa backlogs worldwide? 

We are fully committed to reducing that backlog, and honestly keeping people informed is part of that effort, which is part of why we’re doing this. I also want to highlight that we have started posting in the last month and will update monthly on our travel.state.gov the stats of the immigrant visa backlog. The National Visa Center – the current number of applicants that are ready for interviews is 481,965 – this is up from January’s figure of 408,255. For comparison, in our last normal month of processing, back in January of 2020, almost fifteen months ago, we had a backlog of 80,000 then. That number will fluctuate over time, and it does not change in a linear way.

In terms of what we’re doing, we’re throwing all available resources that we can at the backlog and we’re telling our overseas consular sections and our embassies and consulates overseas that, after services to US citizens, processing of immigrant visas and fiancé visas is our number one priority. Please understand we are continuing to deal with circumstances on the ground, and our ongoing response to the backlog will depend on these circumstances. We are trying to process these applicants as quickly and safely as possible.

How are IV applicants being prioritized?

We have an article on travel.state.gov from our newsroom that details this, but I’ll answer here as well. Basically, we have many immigrant visa categories. We have relatives, we have employment visas, we have family visas, we have diversity visas.

We don’t want to prioritize any of these categories, however, during the pandemic, we’ve been forced to make difficult decisions on how our consular sections should prioritize different visas. As we develop a framework for prioritization, the principle that underlies our plan is the prioritization of family reunification. It’s a clear priority of the US government, it is a clear priority in the INA, it is specifically our prioritization guidance that we have given publicly as well as to our consular sections. Our guidance relies on a clear direction from Congress that requires the adoption of policy that prioritizes family reunification.

We’ve given our divided immigrant visa work into four priority tiers. We have directed consular sections where it is possible to schedule appointments within all four priority tiers. The majority of the applications that a section will process if they are able to are going to be within the first two tiers.

Tier 1 are family-based immediate relative visas and adoption-based visas, as well as age-out cases and certain special immigrant visas.

Tier 2 is going to be other immediate relative visas for spouses, fiancés, parents, and returning resident visas.

Tier 3 is family preference visas, other special immigrant visas for certain employees of the US government

Tier 4 includes all other immigrant visas, including employment-preference visas and diversity visas.

As mentioned, we’re going to try and do as much as we can for each of those tiers. Some consular stations are processing some cases from each of these tiers.

Will DV 2021 selectees be able to get an interview before the September 30, 2021 deadline?

Diversity visas are a hot topic; we’ve gotten this question before.

The good news is that Presidential Proclamation 10014 has been rescinded, so for the first half of this fiscal year, we were unable to process diversity visas due to that proclamation. As I’m sure people who are interested in diversity visas know, that program is specific to each fiscal year. I can tell you that our colleagues that are responsible for this program, which is the Consular Center, has begun to schedule and process documentarily qualified visas. We truly value the diversity visa program and are going to do what we can.

That said, this pandemic is unpredictable. We’ve seen spikes in the past month in South Asia and in other places. It’s impossible to forecast how many DVs we will issue this year. It is very likely that we will not be able to issue all of the diversity visas this year. 55,000 is the maximum we are able to issue each year.

Obviously last year we weren’t able to get as close to that ceiling as we like. We are committed to doing as much as possible. As has been mentioned earlier, we have local conditions and restrictions that have forced us to prioritize. We are going to do as much as we can before the end of the fiscal year, but it will not be near the 55,000 allowed by the statute.

Will DV 2020 selectees who were not interviewed prior to September 2020 be interviewed?

I understand the frustrations of the selectees from last fiscal year. It’s kind of the opposite of what happened this year, where we processed smoothly for the first half of the year and then were interrupted by COVID.

To go back to what I said earlier, the diversity visa program is a fiscal year-specific program. Applicants who were refused because of that proclamation last year cannot be interviewed. The terms of these programs – the fact that it is specific to fiscal year is outlined in the statute. It’s unfortunate, but there’s nothing we can do about it.

If you did win and were selected for DV 2020, you can enter future DV lotteries.

That’s a great point, and I know many many people apply for the program year after year after year, and after fifteen years they finally get it. There are no guarantees, of course, it is a selection process.

Why can’t immigrant visa applicants be interviewed virtually?

Good question. Obviously, we’re doing Zoom and YouTube here, technology has changed quite a bit. I’ll give you a straightforward answer – maybe not the most welcome answer – immigrant visa applicants are required by statute to be interviewed in person. As a consular officer who has worked in the field, there are some benefits I should talk about with this process:

National security is our top priority when we adjudicate these applications. Each prospective traveler undergoes extensive screenings. Part of that is that our officers not only look at the visa application, but they also talk to the applicant to make an informed decision about whether the person is eligible or whether there are any national security concerns.

Can you talk about K-1 visas specifically and where they are on the priority list?

K-1 visas are a priority, as I mentioned earlier, we have four tiers of immigrant visa priority, and that the majority of consular sections will be focusing on the first two tiers. Fiancé visas are in that tier as well, along with spousal visas and immediate relative visas in our tier 2. They are a focus. Depending on the post, the backlogs in these cases may be longer than others.

You mentioned for fiancée visas specifically that the geographic proclamations no longer affect those visas?

That is correct. That’s worth reinforcing, since just last month. There is a National Interest Exception. There is a blanket declaration from the Secretary of State that these are a National Interest Exception.

How long does it take to process a current EB I-485 application?

I can’t really get into that, because I’m not an expert. There are so many areas that influence processing time. As many of you know, most immigrant visa applications start with a petition filed with USCIS, and that’s an area I can’t really get into. USCIS I’m sure is facing their own resource constraints, their own pandemic restraints.

Most of our immigrant visa cases get routed through the National Visa Center, which also has its own processing. It takes time, and sometimes people submit documentation that’s not complete, and it takes time to go back and get that documentation, so – public service announcement, please make sure your application is documentarily complete before sending.

At the end, if you have cases sitting in the National Visa Center that we are able to schedule, it comes down to individual posts. I’m not even able to answer that question directly. On the positive sign, we don’t have a proclamation preventing us from processing cases directly, and many of our posts have started resuming services. As of a week or two ago, there were a dozen posts that were not doing immigrant visas. Some were COVID related, such as the spike in South Asia for example, and some were not COVID related, such as Burma and Russia, for example.

Do you know about the status of the KCC backlog processing Diversity Visas? It’s been months.

The KCC, I talked with my colleagues there, and my advice is to just be patient. They are processing as much as they can in the order in which the cases are received. For those of you who are waiting for scheduling, please wait until you are contacted by your particular embassy or consulate. I’ve seen other questions about KCC, and their leadership has reminded me to tell you that if you’re used to calling KCC, they had to send the entire staff home due to the pandemic spike last fall. They used to accept phone calls, they don’t anymore. It’s best to get in touch with KCC via email, although their email system is also backlogged. They are doing their best, please be patient. KCC will get to them, and I encourage you not to send a second or third or fourth follow up. We’re trying to get as many DVs scheduled as we can.

Why are there zero interviews scheduled except for a few expedite cases in the F2 category?

Again, I’m not sure if I can get into each specific category because there are so many factors. Certain posts are able to schedule interviews, depending on their local restrictions. I understand you had on my colleague Charlie Oppenheim who can provide more details on when numbers are available for scheduling, and when they can be called “current.” It really comes down to the particular circumstances in that country.

To get back to the tiers, family preference immigrant visas are in the third priority tier. We are trying to process some, for posts that have backlogs, their emphasis will be on processing fiancés and immediate relatives.

For the Tier 1 category of visa preference, do applicants receive their interview appointment without waiting for the first and the fifteenth of the given months or will the 2NL be sent with no wait time?

This goes back to where we have a multi-step process to talk about. What the NVC does is one thing. The case might be ready to be processed pretty quickly, but a certain consular section or embassy or consulate may not be ready to accept those cases. Many consular posts have determined that they are not planning to accept new cases from the national visa center for the next several months. They will work through those and other high-priority cases before scheduling anything new.

If I have an I-485 AOS done in OCT 2020 for an EB-3, can we request our medicals now before a request is made by USCIS?

I would just follow the directions that are given by the NVC and USCIS. The answer to that is probably gonna be a no, just because the medicals come later in the process. You can tell from this conversation that a lot of my discussion is going to be general. I’m not able to talk about any individual case.

Are there any plans to increase staff?

Good question. I’m not the resources guy, so I wouldn’t be the person to ask about that. I’d love to have more staff, but this is not purely a staffing issue. If the world were perfect, Congress would now where to put its resources for staffing – first of all, staffing takes a significant amount of time with training and all that, but the important points that in many of these backlog cases, the backlog is coming from those other factors I’ve talked about – the Presidential Proclamations, the fact that we’ve had to shut down, and the closures at consulates and embassies. It’s going to be a non-linear process, but we will get there as quickly and safely as we can.

Do embassies prioritize medical professionals such as nurses under the EB-3 category?

Good questions. EB-3 is an employment preference category, which would put in priority tier 4. We recognize the importance of medical professionals, our posts are doing their best to process as many as they can, but there are certain exceptions, but at this time all employment-based preferences are in the lowest tier of priority. It really depends on your consular section.

Is It possible to maintain or go back to regular capacity by providing a COVID test less than 72 hours before an appointment?

That’s a really good question, and I applaud the creative thinking, but, unfortunately, each consular section is operating in a different locality. We need to follow the local guidelines for shutdowns and social distancing while also following CDC guidelines for operations.

Why would consulates not book IR-1 or CR-1 interviews?

IR-1s are immediate relatives, so without knowing the specific circumstances of the consulate that you’re talking about, I can’t comment on why interviews are not being scheduled. Again – patience, patience, patience. In that particular locale, the list is probably long, and circumstances are probably preventing the processing of immediate relatives, and they’re working through it as fast as they can.

Have you actually ordered all embassies to resume IV processing? What are you doing to ensure that posts are following orders?

No, posts have not been ordered to resume IV processing. Let me review the guidance that we’re talking about: We need to prioritize the health and safety of our applicants and our staff, and about the people who come into contact with those people. We cannot order a consular section overseas to proceed if it is unsafe to do so. What I can say though is that, as they are safe to reopen, consulates must follow the prioritization guidelines I mentioned earlier. Please be patient. It’s not an easy situation for any of us.

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DOS Q & A on May Visa Bulletin

 

This month’s chat with Charlie provided some valuable insight on how the Visa Bulletin will advance throughout the rest of the year. First, we’ll provide the quick highlights, followed by the comprehensive notes on the Q & A session.

Family Highlights

  • No retrogression expected for the family dates this year.
  • There will likely not be much forward movement with the possible exception of the fourth preference category and Philippine family dates.
  • Expect the worldwide and India fourth preference dates to advance in June.
  • Filing Dates are typically 8-12 months out from where Final Actions are expected to be.
  • However, 95% of the family-sponsored numerical limit is processed overseas, which is affected by COVID-19 protocols and conditions.

Employment Highlights

  • Expect aggressive movement of the June employment dates, with the exception of EB-5 China.
  • No retrogression expected for India EB-2 or EB-3.
  • There could be a slow down to the movement in July for EB-3 India.
  • The large number of downgrades in October could impact the movement of the India third preference date.
  • EB-2 for China is expected to advance rapidly, possibly into the summer of 2017.
  • USCIS processed over 95% of the 2020 employment annual limit, despite COVID-19 limitations.
  • This year’s limit is 68% higher than last year’s.
  • There could be tens of thousands of unused numbers.
  • India’s EB-2 number use already exceeds the per-country limit due to spillover from other categories.
  • Expect at least 10,000 numbers that would fall to the first preference category.
  • Since EB-1 is current for all countries, those numbers could then fall down to EB-2, leading to more aggressive movement on the China and India second preference dates.

Diversity Visa Highlights

  • All countries will be current for DV processing in July.
  • Egypt, Nepal, and Iran will be current effective for the month of July.
  • Regional DV ranked cutoffs will be current based on the amount of documentarily-qualified demand.

To view the current and upcoming Visa Bulletins, you can visit these links:

Q & A with Charlie Oppenheim

Please note: Questions and answers have been paraphrased in some cases and should not be interpreted as verbatim quotes.

Charlie Oppenheim has been with the State Department since 1978 and has been the Chief of the Immigrant Visa Control and Reporting division in the Office of Domestic Operations since 1998. The division’s main responsibility is the administration of the annual numerical limitations on immigrants, subdivided by preference category and country as provided by the Immigration and Nationality Act. This division then publishes the Visa Bulletin which summarizes the availability of visa numbers for the coming month, as well as providing other visa-related information.

Q: You have previously mentioned that the FY 2021 employment annual limit is approximately 262,000. Do you expect that all of the numbers will be used?

A:  I’d like to start off by mentioning the fact that the USCIS offices processed over 95% of the 2020 employment annual limit under extremely difficult conditions because of the COVID-19 issues, which shows that they are dedicated to maximizing number use This year’s annual limit is approximately 68% higher than last year’s. Most overseas and domestic operations were already working at peak capacity and the COVID-related issues remain. That’s very important to everyone to remember. Therefore we believe it would be somewhat unrealistic not to expect that there could be tens of thousands of unused numbers despite everyone’s best efforts this year.

Q: When do you expect that the DV ranked cutoff for Egypt might become current?

A: For the month of June, all of the regional DV ranked cutoffs have become current, based on the amount of documentarily qualified demand, which has already been reported to my office through the Kentucky Consular Center. I expect that such status will remain throughout the year and that all countries will be current for DV processing, effective for July. Again, people must be documentarily qualified and reported to my office.

Q: If it were assumed that there will be otherwise unused numbers which can be made available for use in the employment second preference category, why isn’t the India EB-2 date moving at a faster pace?

 A: Although we do expect additional otherwise unused numbers under the annual limit to become available, I must not be too aggressive at this point in terms of providing numbers to the Indian employment second preference category while there is a potential need for those numbers by rest of world applicants. I will continue to move the India EB-2 date aggressively for June and July, but again I want to make sure that we do have plenty of numbers for all other countries under their per-country limits.

Q: Do you expect that the worldwide family preference dates will continue to advance through September?

A: With the possible exception of the family fourth preference and the Philippine family dates, I do not expect any forward movement, and any that occurs through August would be minimal. Based on information that I’ve recently received, we do expect to advance the worldwide and India fourth preference dates to move for the month of June.

Q: Why does USCIS only allow the dates that are listed in the application Filing Dates chart to be used for such a short time each year?

A: This is a question best posed to USCIS, but from my discussions with them, when USCIS is making a determination on whether to allow those dates to be used for filing, they take into consideration issues such as the annual limits, the amount of numbers that have already been used, the amount of cases that have been filed and that are pending action, therefore if they believe that the resulting totals are sufficient to use all available numbers under the annual limits, they may decide that chart B,application filing dates, may no longer be used for filings. I would suggest that everyone monitor the USCIS website very carefully in the coming months to see if the application date use has any type of change. In the Visa Bulletin, we do have the information with a direct link to that site. The Visa Bulletin can be found on Travel.State.Gov

Q: Will Indians get a majority of the employment visa numbers?

A: The INA Immigration and National Act imposes a 7% per-country limit, to avoid any single country from being able to monopolize the vast majority of in the various preference categories, but it is important to remember that for the employment visa categories, §202(a)5 of the INA states that if the total demand of numbers is insufficient to be used in a particular employment category, then those numbers can be made available strictly in priority date order without regard to any normal annual limits. Therefore at this time, for example, in the employment- second preference number, India number use does exceed their per-country limit and will continue to for the year.

Q: If I have submitted all of the required documentation, why hasn’t my case been scheduled for an interview?

A: As I mentioned earlier, as with the case with the operations at USCIS offices in the U.S., the COVID-19-related issues have severely affected our ability at the overseas posts to process cases as they normally would. Therefore the scheduling of cases is largely dependent upon the conditions of each particular post and safety is a primary concern. Individuals should check the travel.state.gov website that has links to all of the U.S. embassies and consulates websites, where you may be able to find information on the particular post that is handling your case and its operational status.

Q: Do you expect that the September Final Action Dates will have surpassed the Application Filing Dates that were listed in the October Visa Bulletin?

 A: With the exception of the China employment fifth Application Filing Date and the India employment third preference date, which was subsequently retrogressed, the answer is yes. By September they will have been exceeded. Many have already been surpassed by the May Final Action Dates dates. It is important to note that the Application Filing Dates which were listed in the October 2020 Visa Bulletin are those where it was expected that the Final Action Dates would be in September. Some of those dates have advanced throughout the year and will advance as we move forward through the summer.

Q:  What are the chances that the June 2017 priority date would move in this fiscal year? Are the dates going to move?

A: With the exception of the family fourth preference category on a worldwide basis and India, there will be only limited movement of the Final Action Dates, except for Philippine family dates, which are expected to move forward. With the exception of the family fourth preference category, the amount of documentarily qualified, which we already have within the established May dates exceeds all of the family preference annual limits and that’s why future movements are likely to be limited. On the employment side, there will be very aggressive movement of the June employment dates, with the exception of China employment fifth preference, although China employment fifth preference can be expected to advance for the month of June.

Q: What are the chances of Final Action Dates reaching what is in the Filing Dates chart by the end of September?

A: If you look back at the application filing dates that were listed in the October 2020 Visa Bulletin, those application dates should be reached by September. Most of them have already been reached or far exceeded. The dates that are listed as application filing dates, any that have changed since October are those that I feel that the Final Action Dates will be in 8-12 months from the time the change was made. If I made a change in the May bulletin, we can expect that application Filing Date to have been reached by Final Action Date 8-12 months in the future.

Q: Do you expect any of the employment-based Final Action Dates for India to retrogress for EB-2/EB-3?

 A: No, the answer is a definite no. The Final Action Dates that are in place at this time will be the minimum going through the month of September. Again, I do believe that all of the dates in the employment categories will continue to move forward through the remainder of the year.

Q: When will Nepal be current?

A: Nepal’s diversity visa rank cutoff category for the month of July, will be current. Currently, all of the DV regional rank cutoffs were current for the month of June. We will be making the remaining the remaining rank cutoffs for Egypt, Nepal, and Iran; applicants will also be current effective for the month of July. This is being done in an effort to be able to maximize diversity visa number use by those applicants who have acted in a very timely manner, submitted all of the required documentation to the Kentucky Consular Center.

Q: Do you expect people born in Hong Kong to be put in the same backlog in the future as mainland  Chinese under Trump’s executive order last July?

 A: I can’t comment on that specific issue, but at this time, for the family and employment-based categories, Hong Kong remains treated as an independent country, as they have been. For the diversity visa program, please refer to the announcement for the DV 2022 registration period for specific information on how the foreign state status for Hong Kong would be applied for that program. For family-sponsored in the numerically-controlled categories and employment-based applicants, Hong Kong remains as it has been for the past several decades.

Q: How many visas will spill over from EB-4/EB-5 to EB-1/EB-2?

A: It is likely that the employment fourth preference limit will have an excellent chance of being reached this year. Any unused numbers would fall up to the employment first, as would any employment fifth preference numbers. I do at this point think that the combination of the two, expect there will be at least 10,000 numbers that would fall up to the employment first preference category.   The employment first preference category is current for all countries now, meaning there are enough numbers for everybody., so if we do not have sufficient demand to use the first preference limit, those unused first preference numbers will then fall down to employment second preference and can be used in that category. That has already started to happen and is part of the reason we have started to make aggressive movement on the China and India second preference dates.

Q: How do you determine how much the dates move for China versus India in EB-2 and EB-3?

A: As I mentioned section §202(a)5 indicates if there will be otherwise unused numbers under the annual limit, those numbers are made available strictly in priority date order. Right now the employment second preference Final Action Date for the month of May for applicants from China is December 1, 2016. The India second preference Final Action Date is August 1, 2010. Therefore, it is safe to say that any unused employment second preference numbers that are otherwise unused will go to the India second preference category.

Q: When do you think family preference priority dates come close to their filing dates?

A: Filing dates are typically 8-12 months out from where I believe the Final Action Dates will be. Because of COVID-19 issues impacting processing overseas, the family dates are not moving as fast as one might normally expect so it may take longer for some of the established family application dates to be reached. It’s important to remember that approximately 95% of the family-sponsored numerical limit is processed overseas, and approximately 85-95% of the employment-based numbers are used for adjustment of status cases by applicants who are already here in the United States You can gauge how things are happening around the world and gauge how processing is affected.

Q: So many people have been downgraded from EB-2 to EB-3 for India. Will the dates still move till January 2014?

A: That is a very good question. The amount of downgrades for second preference applicants who have essentially changed their minds and refiled under the third, to take advantage of the third preference date, will potentially impact the movement of the India employment third preference date. At this time, it is too early to tell. When we did retrogress the India third preference Application Filing Date, that was done in consultation with the USCIS headquarters and the establishment of that 2014 India date was the projected goal for September. Every effort will be made to get it to that point, and the goal is to maximize number use under the annual limits.

Q: Conservatively, how far do you believe EB-2 for China will advance in FY2021? Will you advance EB-2 China priority dates rapidly in the next couple of months.

 A: Yes, the China employment second preference date will be advanced rapidly in the coming months. It will get easily into calendar year 2017. At this moment, if I had to make a guess I would say that it will get to at least the summer of 2017.

Q: What purpose was served by making visa numbers available for over 100,000 DV 2021 selectees, when until now consulates have only issued 20 diversity visas?

A: When we have the registration period for each year’s diversity visa program, we always select enough applicants to help ensure that we can maximize number use under the annual limits. It is important to note that a lot of the people who apply for the diversity visa program, they do not follow through with the registration, even if they are selected, for whatever reason. Sometimes applicants will be refused upon their interview or may not proceed. When we had the DV 2021 registration period and made the selection of applicants, the registration period was pre-pandemic, and the selection was made last spring, but we have to proceed under the assumption that normal processing could return at some point. That allows us to potentially maximize number use under the various annual limits. If we had not registered applicants and miraculously this COVID had suddenly gone away, then we would have been in a situation where we did not have applicants for the numbers that could have been used. It is also important to remember that all of the diversity information on the registration clearly indicates that selection to participate in the program does not guarantee visa availability.

Q: The dates for EB-3 India category have been moved by five months for the May Visa Bulletin. Do you expect similar movement for the June and July bulletins?

A: Yes, I do expect that India third preference Final Action Date will once again be moved aggressively for the month of June. I think all of the June dates will be moved very aggressively, at least at the rate that we moved them for the month of May, potentially at a greater rate. Then it is possible that in July, we may slow down the movement to some extent. At this point, I think that is unlikely though.

Q: How many visa numbers have been used up until now for the EB-2 category for the FY 2021?

A: We do not provide specific number use during the course of the year. I can tell you that every effort is being made to maximize number use in all of the visa categories. USCIS offices are doing a phenomenal job of processing cases they have available to them.

Q: When will I-765V and U visa application dates move? What is the timeline for the U visa movement?

A: The U visa is not covered by the Visa Bulletin.

Q: What do you mean by the ‘documentarily qualified’ with respect to employment-based I-485 applications? At what stage of I-485 application processing, would it become documentarily eligible?

A: For a case to be ‘documentarily qualified,’ all of the required documents must have been submitted and reviewed and been determined that they meet the required criteria: any security type of background checks, medicals, everything required for the processing of the case has to be ready for the person to be considered documentarily qualified. The medical is often the last item. It is not in the documentarily-qualified package, but it is assumed that if somebody submits all of the other required documentation, that they will proceed with the medical and have that at the time of their final interview. Only the amount of applicants that have been reported to our office as being documentarily qualified at the time of the upcoming month’s determination of the Final Action Dates and rank cut offs for DV, those are the only applicants considered for processing for that month.

Q: You previously mentioned that case processing will skyrocket, however, online stats are showing that the number of EB green card processing is still very slow. Do you know why? Are you still optimistic?

A: I am still optimistic that USCIS will maximize number use to the extent of their processing capacity. It is important to remember that there was an extremely large amount of filings in the month of October. Those filings and all subsequent filings must work their way through the process before they reach the final interview status, which would result in the use of a number.  Every effort is being made under the difficult conditions and staffing restraints to maximize number use. Given the fact that the 2021 employment limit is approximately 68% higher than usual, it is unrealistic to expect all of these numbers to be used.

Q: Why have we not received the May interview dates? When will May interviews begin and when will consular posts be at full capacity?

A: Most of the overseas appointments are scheduled for the family and employment categories are scheduled by the National Visa Centers. They must work through the cases once we have made the determination of the May dates and provided that to our National Visa Center. Only then can they begin to review the cases to determine which are eligible for scheduling the visa interview and then they must also work with the various posts to see what their processing capacity may be. That scheduling on the National Visa Center’s part has become much more difficult during this COVID-19 times when there is limited post processing capacity. On the travel.state.gov website, there is information on the types of visas that are being processed based on post capacities.

Q: Why is it so hard to release the bulletin the same day every month?

 A: Our attempt is to make the determination of each upcoming month’s Final Action Dates in the bulletin, on or about the 8th of the month, depending on how that date might fall in relation to a holiday or weekend. Once we have made the determination of the dates and prepared the Visa Bulletin, and another item, which is a cable to our overseas posts announcing not only the Final Action Dates but also other visa-related information. That information has to be cleared by a number of individuals which have extremely busy schedules with other items depending on the workload, it can take some time for the entire clearance process to be completed. Every attempt is always made to get the clearance out as fast as possible and the Visa Bulletin posted quickly. In recent months, the bulletin has been coming out earlier than it had been.

Q: What happens to last year’s FB 122,000 visas that are unused in the EB category due to processing delays?

A: The FY 2020 122,000 approximately unused family numbers were added to this year’s employment limit, resulting in an approximately 262,000 annual limit. If for some reason, all 262,00numbers are not used this year, then those numbers would fall back across for potential use during the determination of the FY2022 family-sponsored annual limit. Based on past experience, we do not believe that the unused fiscal 2021 employment numbers will make any difference in the annual limit for family going into 2022 and that the normal 226,000 would be applied.

Q: Do you expect any retrogression in the DV Visa Bulletin, if the documents processed by Kentucky Consular Center progress enough?

 A: We do not believe that will be the case at this time , based on the applicant response rate to date, which has been very low in most cases compared to previous years.  There is always a chance for a corrective action of some type, retrogression of a date or making a category unavailable if subsequent events make that necessary. At this point, we do not have any reason to believe there will be a need to reimpose any kind of rank cutoffs for the DV 2021 program.

Q: With interviews of family-based not happening at the posts, would family-based F3 retrogress?

A: No, none of the family dates will retrogress this fiscal year.

Q: Do we have any guidance from USCIS on how fast they are processing EB green cards given that there is a surplus of them in this fiscal year?

 A: The information that I have from USCIS offices is that they are aggressively processing all available cases. In terms of their processing issues, you can find that information on USCIS websites. They list information on processing times, etc.

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USCIS to Allow F-1 Students to File I-765 Online to Request OPT

USCIS announced that it would now accept the online version of Form I-765 from certain F-1 students applying for pre or post-completion OPT or STEM OPT extensions. This may provide some relief to students who have been subject to delays at USCIS lockboxes. Previously, USCIS announced flexibilities for F-1 students who had been affected by lockbox delays.

USCIS Announcement

WASHINGTON—U.S. Citizenship and Immigration Services today announced that F-1 students seeking optional practical training (OPT) can now file Form I-765, Application for Employment Authorization, online if they are filing under one of these categories:

  • (c)(3)(A) – Pre-Completion OPT;
  • (c)(3)(B) – Post-Completion OPT; and
  • (c)(3)(C) – 24-Month Extension of OPT for science, technology, engineering and mathematics (STEM) students.

OPT is temporary employment that is directly related to an F-1 student’s major area of study. Eligible students can apply to receive up to 12 months of OPT employment authorization before completing their academic studies (pre-completion) and/or after completing their academic studies (post-completion). Eligible F-1 students who receive STEM degrees may apply for a 24-month extension of their post-completion OPT.

“USCIS remains committed to maximizing our online filing capabilities,” said Senior Official Performing the Duties of USCIS Director Tracy Renaud. “The I-765 online filing option allows eligible students to file forms online in a more user-friendly fashion and increases efficiencies for adjudicators.”

The option to file Form I-765 online is only available to F-1 students filing Form I-765 for OPT. If an applicant submits Form I-765 online to request employment authorization on or after April 15, but is eligible for a different employment authorization category, USCIS will deny the application and retain the fee. As USCIS continues to transition to paperless operations, the agency will work to expand online filing for Form I-765 to additional categories.

Online filing allows applicants to submit forms electronically, check the status of their case anytime from anywhere, and receive notices from USCIS online instead of waiting for them in the mail. USCIS is using innovation and technology to meet the needs of applicants, petitioners, and employees. Regardless of the paper or electronic format of an application or petition, USCIS is committed to ensuring a secure and efficient process for all.

Individuals can file 11 USCIS forms online, which can all be found on the Forms Available to File Online page. To file these forms online, individuals must first create a USCIS online account at https://myaccount.uscis.gov/. This free account allows them to:

  • Submit their forms;
  • Pay their fees;
  • Track the status of their case;
  • Communicate with USCIS through a secure inbox; and
  • Respond to Requests for Evidence.

USCIS continues to accept the latest paper version of these forms by mail.

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USCIS Update: H-1B Cap Registration Selection Completed

USCIS announced that the cap selection process is complete and all petitioners have been notified via the online portal. The complete update from USCIS is below. Please note that currently, the website reflects that Premium Processing is available, which guarantees adjudication or action within 15 days. However, availability could change at any time. In past years, USCIS has temporarily  Connect with us on your preferred platform to be notified of the latest updates.

Was your H-1B registration selected? Contact Challa Law Group to prepare a comprehensive H-1B filing ahead of the June 30, 2021 filing deadline. Watch our YouTube recording of our recent webinar focusing on compliance tips and strategies for H-1B petitions and then email us to initiate your case.

USCIS: FY 2022 H-1B Cap Season Updates

H-1B Initial Electronic Registration Selection Process Completed

USCIS has received enough electronic registrations during the initial registration period to reach the fiscal year (FY) 2022 H-1B numerical allocations (H-1B cap) including the advanced degree exemption (master’s cap). We randomly selected from among the registrations properly submitted to reach the cap. We have notified all prospective petitioners with selected registrations that they are eligible to file an H-1B cap-subject petition for the beneficiary named in the applicable selected registration.

Registrants’ online accounts will now show one of the following statuses for each registration (that is, for each beneficiary registered):

  • Submitted: The registration has been submitted and is eligible for selection. If the initial selection process has been completed, this registration remains eligible, unless subsequently invalidated, for selection in any subsequent selections for the fiscal year for which it was submitted.
  • Selected: Selected to file an H-1B cap petition.
  • Denied: Multiple registrations were submitted by or on behalf of the same registrant for the same beneficiary. If denied as a duplicate registration, all registrations submitted by or on behalf of the same registrant for this beneficiary for the fiscal year are invalid.
  • Invalidated-Failed Payment: A registration was submitted but the payment method was declined, not reconciled, or otherwise invalid.

For more information, visit the H-1B Electronic Registration Process page.

FY 2022 H-1B Cap Petitions May Be Filed Starting April 1

H-1B cap-subject petitions for FY 2022, including those petitions eligible for the advanced degree exemption, may be filed with USCIS beginning April 1, 2021, if based on a valid, selected registration.

Only petitioners with selected registrations may file H-1B cap-subject petitions for FY 2022, and only for the beneficiary named in the applicable selected registration notice.

When completing Form I-129, Petition for a Nonimmigrant Worker, please ensure that the below question is included as Question 5 in Supplement H on page 13. If you have already filled out Form I-129 and this question was not included, you may replace Supplement H in your petition by printing out and completing pages 13 and 14 from the current version of Form I-129 on uscis.gov and including them with your petition. Starting July 1, 2021, we will only accept the 03/10/21 edition of Form I-129. Until then, you can also use the 09/30/20 and 01/27/20 editions.

An H-1B cap-subject petition must be properly filed at the correct service center and within the filing period indicated on the relevant registration selection notice. The period for filing the H-1B cap-subject petition will be at least 90 days. Online filing is not available for H-1B petitions, so petitioners filing H-1B petitions must do so by paper. Petitioners must include a printed copy of the applicable registration selection notice with the FY 2022 H-1B cap-subject petition.

Petitioners filing H-1B cap-subject petitions, including those petitions eligible for the advanced degree exemption, must still establish eligibility for petition approval at the time the petition is filed and through adjudication, based on existing statutory and regulatory requirements. Selection in the registration process does not relieve the petitioner from submitting evidence or otherwise establishing eligibility, as registration only pertains to eligibility to file the H-1B cap-subject petition.

For more information, visit the H-1B Cap Season page.

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USCIS Rushes to Modify H-1B Cap Registration & Selection Process Before March

[UPDATE: DELAYED UNTIL DECEMBER 31, 2021]

USCIS Rushes to Modify H-1B Cap Registration & Selection Process Before March

USCIS announced that a rule first proposed in November that modified the H-1B cap selection process will be effective prior to this year’s H-1B registration period. Despite comments submitted through December of 2020, DHS moved forward with publishing the final rule without modification. The new policy will change the selection from a random process to one based on wage levels. In the announcement, USCIS stated that the new modifications will “incentivize employers to offer higher salaries, and/or petition for higher-skilled positions, and establish a more certain path for businesses to achieve personnel needs and remain globally competitive.”

In 2020, the H-1B registration window opened on March 1 and stayed open through March 20, 2020. While no timeline has been announced for 2021, the new rule leaves employers and employees only weeks to adjust to the new selection process if it were implemented, with an effective date of March 8, 2021. There has been no USCIS guidance released on how the registration process will be operationally different than in 2020. President-Elect Biden has indicated he will sign a memo preventing “midnight” rules from taking effect immediately, so it is likely the registration rule will not be implemented for this year’s H-1B cap selection process.

Previous DOL and DHS rules attempting to increase prevailing wages were struck down by the courts last year.

Key Provisions of the Proposed Rule

While the H-1B cap registration system has historically been a random selection process, the rule would shift to a ranking of registrations based on the highest OES wage level that the proffered wage equaled or exceeded for the relevant SOC code in the area of intended employment. The top-ranked registrations would begin at OES wage level IV and proceed in descending order.

Wage Considerations

  • If the proffered wage falls below OES wage level I because the wage is based on a prevailing wage from another legitimate source (other than OES) or an independent authoritative source, USCIS will rank the registration as OES level I.
  • After the 65,000 “regular cap” selections are made, the same process would be utilized to meet the advanced-degree exemption.
  • If USCIS receives and ranks more registrations at a particular wage level than the projected number needed to meet the applicable numerical allocation, USCIS will randomly select from all registrations within that particular wage level to reach the applicable numerical limitation.
  • If the H-1B beneficiary will work in multiple locations, USCIS will rank and select the registration based on the lowest corresponding OES wage level that the proffered wage will equal or exceed.
  • Where there is no current OES prevailing wage information for the proffered position, USCIS will rank and select the registration based on the OES wage level that corresponds to the requirements of the proffered position.
  • The electronic registration form (and the H-1B petition) will be amended to require provision of the highest OES wage level that the proffered wage equals or exceeds for the relevant SOC code in the area of intended employment.

Registration & Adjudication Updates

  • The proposed rule requires that a valid registration must represent a legitimate job offer.
  • USCIS may deny the petition if it is determined that the statements on the registration or petition were inaccurate, fraudulent, or misrepresented a material fact.
  • A petition also may be denied if it is not based on a valid registration submitted by the petitioner (or its designated representative), or a successor in interest, for the beneficiary named in the petition.
  • USCIS may deny or revoke approval of a subsequent new or amended petition filed by the petitioner, or a related entity, on behalf of the same beneficiary, if USCIS determines that the filing of the new or amended petition is part of the petitioner’s attempt to unfairly decrease the proffered wage to an amount that would be equivalent to a lower wage level, after listing a higher wage level on the registration to increase the odds of selection.
  • USCIS will not deny an amended or new petition solely on the basis of a different proffered wage if that wage does not correspond to a lower OES wage level than the wage level on which the registration was based.

We will be closely monitoring the challenges to this rule in order to best advise on preparation for this year’s H-1B cap selection process.

Don’t forget to register for Challa Law Group’s webinar series, where Managing Attorney explores strategies for navigating the new immigration challenges and answers your questions live. Join us every Wednesday at 12 PM EST.

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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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Premium Processing Would Increase to $2,500 Under Proposed House Bill

Premium Processing Would Increase to $2,500 Under Proposed House Bill; Expands Premium to Additional Petitions & Applications

UPDATE 8/25/2020: USCIS Postpones Administrative Furlough

In an attempt to address looming USCIS furloughs, a bipartisan group of Congressional lawmakers introduced the Emergency Stopgap USCIS Stabilization Act. The bill passed unanimously over the weekend and heads to the Senate next.

If passed by the Senate, the bill would “temporarily forestall the need for furloughs by immediately increasing the agency’s ‘premium processing’ revenues.” Premium processing allows certain individuals and companies to pay an optional fee for expedited processing for select petitions and applications. The fee is currently set at $1,440 and guarantees action within 15 days or the fee is returned and the case continues to be processed expeditiously.

The bill would increase the fee from $1,440 to $2,500 for most case types and would also expand premium processing to new petitions and applications. The revenues may be used by USCIS to improve adjudication and naturalization services and reduce backlogs, including delays for non-premium applicants. Previously, collected fees were only to be used to fund premium processing operations and infrastructure improvements. The House of Representatives bill summary states that premium processing must be made available to the following additional immigration benefits:

  • employment-based nonimmigrant petitions not already subject to premium processing;
  • certain employment-based green card petitions (EB-1, EB-2, and EB-3) not already subject to premium processing;
  • applications to change or extend nonimmigrant status;
  • applications for employment authorization; and
  • other immigration benefit requests as USCIS deems appropriate.

The new fees and timeframes would be set through the Department of Homeland Security rulemaking. The bill would also allow biennial adjustments of premium fees to account for inflation.

The bill also confirms that premium processing requestors have direct and reliable access to their current case status information and the ability to communicate with the premium processing service units. USCIS may only suspend premium processing if circumstances prevent the completion of a “significant number” of premium requests within the required 15-day timeframe.

The bill would also allow USCIS to set premium fees for new benefit types without rulemaking if the fees do not exceed the below guidelines:

Benefit Type Fees Processing Times
EB-1 petitions for multinational executives and managers $2,500 45 days
EB-2 petitions involving National Interest Waiver (NIW) $2,500 45 days
Change of Nonimmigrant Status to F (academic student), J (exchange visitor), or M (vocational student) $1,750 30 days
Applications to Change or Extend Status as a dependent of an E (treaty trader or investor); H (temporary worker), L (intracompany transferee), O (extraordinary ability), P (artist or athlete), or R (religious worker $1,750 30 days
Applications for Employment Authorization $1,500 30 days

The bill also requires USCIS to develop a 5-year plan to implement:

  • electronic filing procedures for all benefit requests,
  • accept electronic payments,
  • correspond with benefit requestors electronically,
  • reduce processing timeframes for all immigration and naturalization benefit requests.

The agency will be required to conduct semi-annual briefings to the appropriate congressional committees.

Since this bill is intended to be an emergency stopgap to stabilize the USCIS budget, there may be an accelerated implementation timeline. Save $1,040 and upgrade your employment-based case for premium processing today. Contact us at info@challalaw.com to get started.

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Immigration & Travel Challenges Leave Green Card Holders Considering U.S. Citizenship

NOTE: USCIS filing fees for Form N-400, Application for Naturalization increase 83%, from $640 to $1,170 on October 2, 2020. (This rule is currently on hold per a nationwide injunction.

Even prior to the pandemic, U.S. Citizenship & Immigration Services made the news for processing delays across visa categories. The COVID-19 pandemic has led to additional delays, including green card printing backlogs. The agency blamed declining requests for immigration services when it requested $1.2 billion in funding from Congress earlier this year. When the negotiations fell through, USCIS contacted approximately two-thirds of the workforce to warn of furloughs starting August 30, 2020. Amid the budget woes, DHS also published a final rule increasing prices for many immigration benefits, including increasing the cost to apply for citizenship from $640 to $1,170 starting on October 2, 2020.

Recently, an independent government watchdog determined that the appointment of top officials at the Department of Homeland Security (DHS) were invalid due to the agency’s disregard for the Federal Vacancies Reform Act. Federal judges have already struck down some H-1B requirements, but we could see increased legal challenges for policies enacted during the past two years.

Even green card holders have been subject to restrictions during the President’s travel bans. Many permanent residents are considering naturalization to not only avoid the uncertainties of shifting immigration regulations, but to participate fully in the U.S. democratic process.

When should I file for U.S. citizenship?

Naturalization, or the process of becoming a U.S. citizen, is largely a personal choice based on your circumstances and goals. We will provide information on the requirements and eligibility for citizenship, as well as an overview of the rights and responsibilities of U.S. citizens.

Eligibility Overview

Typically, you must be a green card holder for 5 years before applying for naturalization. Some spouses of U.S. citizens are eligible if they have been a lawful permanent resident for at least 3 years and have been living in marital union with the same U.S. citizen during that period.

Residency Requirements

You must maintain continuous residence for at least five years (or three years if married to a U.S. citizen as described above). You must also establish that you have resided in the state or service district for 3 months prior to filing. If you travel outside the U.S. for more than six months but less than a year or you are absent for more than 1 year, you may break the continuity of residence. Even multiple absences of less than 6 months may concern an immigration officer: you need to provide additional evidence that your actual dwelling place and residence is in the United States. You must show that you have been physically present in the United States for at least 30 months out of the five years preceding your filing (or 18 months out of 3 years if married to a U.S. citizen).

If you are considering naturalization, you should consult with an attorney when planning extended travel to ensure you are maintaining your permanent residence.

Citizenship Qualifications

USCIS will evaluate whether you are a person of “good moral character” and requires that you demonstrate an attachment to the principles and ideals of the U.S. constitution. You must also have an understanding of U.S. history and government and be able to read, write, and speak basic English to pass the required civics and English test. The interview will be conducted in English and you are expected to be able to answer in English. When you pass the interview and test portions, you will be scheduled for an oath ceremony. Last fall, USCIS started piloting changes to the tests, with changes set to go into effect later this year or early 2021.

What happens if I don’t pass?

You can take the English and civics tests between 60 and 90 days after the date of your initial interview. If you fail once again, you must apply for naturalization again. If there was wrongdoing or bias on the part of the interviewing officer, there may be an opportunity to appeal the decision, but this is a rare occurrence. There is no limit to the number of times you can apply for naturalization.

Becoming a Citizen

At the ceremony, you will be required to take an oath of allegiance to the United States. The oath is as follows:

“I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will bear arms on behalf of the United States when required by the law; that I will perform noncombatant service in the Armed Forces of the United States when required by the law; that I will perform work of national importance under civilian direction when required by the law; and that I take this obligation freely, without any mental reservation or purpose of evasion; so help me God.”

At the ceremony, you are required to return your green card. It will no longer be needed as you will receive a Certificate of Naturalization after taking the oath. You should review the certificate and notify USCIS of any errors before leaving the ceremony.

Citizenship Rights and Responsibilities

As a green card holder, you are probably already familiar with tax reporting requirements and other responsibilities that come with living and working in the United States. After you become a U.S. citizen, you are afforded additional rights and responsibilities. You should update your Social Security record, apply for a U.S. passport if you intend to travel abroad, and you can register to vote. USCIS states that U.S. citizens are eligible to:

  • Vote.
    Only citizens can vote in federal elections. Most states also restrict the right to vote, in most elections, to U.S. citizens.
  • Serve on a jury. 
    Only U.S. citizens can serve on a federal jury. Most states also restrict jury service to U.S. citizens. Serving on a jury is an important responsibility for U.S. citizens.
  • Travel with a U.S. passport. 
    A U.S. passport enables you to get assistance from the U.S. government when overseas, if necessary.
  • Bring family members to the U.S. 
    S. citizens generally get priority when petitioning to bring family memberspermanently to this country.
  • Obtain citizenship for children under 18 years of age. 
    In most cases, a child born abroad to a U.S. citizenis automatically a U.S. citizen.
  • Apply for federal jobs. 
    Certain jobs with government agencies require U.S. citizenship.
  • Become an elected official. 
    Only citizens can run for federal office (U.S. Senate or House of Representatives) and for most state and local offices.
  • Keep your residency. 
    A U.S. citizen’s right to remain in the United States cannot be taken away.
  • Become eligible for federal grants and scholarships. 
    Many financial aid grants, including college scholarships and funds given by the government for specific purposes, are available only to U.S. citizens.
  • Obtain government benefits. 
    Some government benefits are available only to U.S. citizens.

Explore additional rights and responsibilities on the USCIS website.

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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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USCIS Fees Increase on October 2, 2020

USCIS Fees Increase on October 2, 2020
(UPDATE: A nationwide injunction has temporarily paused implementation of this rule.)

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.