USCIS expects to suspend biometrics requirements for H-4, L-2 and E-1, E-2, and E-3 Form I-539 applications beginning May 17, 2021, for at least 24 months. It will retain the discretion to require biometrics on a case-by-case basis.

The suspension is intended to eliminate the adjudication backlog that has prevented H-4 and L-2 spouses from receiving Employment Authorization Documents (EADs) in anything close to a timely fashion.

The suspension is expected to apply to these categories of Form I-539 applications if:

  • The application is pending as of May 17, 2021, and a biometrics appointment notice has not been received; or
  • The application is received by USCIS between May 17, 2021, and the expiration date of the suspension.

How USCIS will handle biometrics fees is not clear but guidance is expected.

Notice of the proposal came in a declaration from USCIS Service Center Operation Directorate Associate Director Connie L. Nolan in Edakunni v. Mayorkas, a litigation pending in federal district court in Seattle.

Background

In 2019, biometrics requirements were imposed on Form I-539 applications. This resulted in delays in processing H-4 and L-2 extensions and the dependent EAD applications. When the COVID-19 pandemic struck and Applications Support Centers that process biometrics closed, the delays mounted. On top of that, there were even printing delays. It was taking so long to get H-4 and L-2 EADs approved that individuals were losing their jobs and their benefits while waiting for the cards – even if they applied the full six months before their cards expired.

Suggested Changes

About 30 companies, including many large technology firms, wrote to USCIS on March 22, 2021, with some ideas on how to eliminate the current problem hamstringing them and many of their employees. They asked the Biden administration to consider the following:

  • Rescind the 2019 biometrics collection policy for EAD applicants because it is largely redundant. Most applicants have had biometrics collected as part of a consular visa application or another benefit application.
  • Provide automatic extensions of employment authorization for timely filed EAD applications as is done for TPS (Temporary Protected Status) EAD applications.
  • Allow applicants to file EAD renewal applications more than six months before their current EAD expires, giving USCIS more flexibility in terms of adjudication.

For now, USCIS appears to have chosen the first option on a temporary basis.

If you have questions about how the expected suspension will affect H-4 or L-2 EADs for spouses, Jackson Lewis attorneys are available to assist.

On September 11, 2020, the Department of Homeland Security (DHS) will release a new regulation for notice-and-comment that proposes to expand the collection of biometric data and give DHS increased flexibility to deal with emerging needs. Here are a few highlights from the draft 328-page rule.

  • Unless waived by DHS, any applicant, petitioner, sponsor, beneficiary, or individual filing or associated with an immigration benefit or request, including U.S. citizens, must appear for biometrics collection – regardless of age.
  • There will be new biometrics modalities including iris scans, palm prints and voice prints.
  • DHS may require DNA results to prove the existence of a claimed genetic relationship.
  • Foreign nationals who are granted immigration benefits will be subject to continued and subsequent vetting and biometric evaluation until granted U.S. citizenship.
  • New forms will be produced including the new biometrics requirements.

For employers, this may mean that authorized signatories or others associated with a petition filing could be subject to biometrics screenings – even if they are U.S. citizens. It also means that foreign national employees and their dependents will be subject to continuing surveillance and may need to attend numerous biometrics screenings, even absent a new petition or application. In addition, given the increase in biometrics processing and the new proposed modalities, including more DNA screenings, privacy issues will be of great concern for employers and employees alike.

DHS estimates that the draft rule would increase the number of annual biometrics screenings from 3.9 million to 6.07 million. Currently there is a 46% collection rate across all forms. Under the new rule, that would rise to 71%. This increase would be difficult to implement any time soon given the current backlogs at Application Support Centers.

Many observations and critiques will likely be submitted once the Notice-and-Comment Period opens. Jackson Lewis will continue to follow the rulemaking process and provide updates as they become available.

In a settlement agreement signed on January 19, 2023, USCIS agreed to “bundle” the adjudication of dependent applicants’ Form I-539 (Application to Extend/Change Nonimmigrant Status) and Form I-765 (Application for Employment Authorization) with the primary applicant’s Form I-129 (Petition for Nonimmigrant Worker) if the forms are filed together as one package.

Stemming from a settlement reached with USCIS in a class action litigation, the agreement marks a return to the previous practice of concurrent adjudication and provides a significant benefit to foreign national families living and working in the United States.

Reviewing primary and dependent applications concurrently streamlines the adjudication process, reduces processing times, ensures consistent expiration dates for family members, and eliminates lengthy gaps in work authorization for dependent applicants.

The agreement, as currently written, does not allow for concurrent review if the applications are filed separately.  

Recognizing the impact of dependent spouses engaged in the U.S. workforce, and their contributions in rebuilding and revitalizing the U.S. economy, USCIS has taken other measures to decrease processing times and permit automatic extensions of employment authorization, where appropriate, including:

In other efforts to speed up adjudication, as of January 30, 2023, USCIS will expand premium processing to all employment-based categories of Form I-140 (Immigrant Petition for Alien Workers), including for multinational executives or managers, and those seeking national interest waivers, whose work has substantial merit and national important to the United States.

USCIS has adopted a phased approach in the expansion of premium processing over the past year, as the agency is required to adhere to the legislative requirements to ensure expansion of the premium processing program does not adversely impact other categories of applications or consequently increase processing times for other benefits.

Jackson Lewis attorneys are available to assist with questions or advice regarding the timing of petitions and applications.

Hoping to recover some of its operating costs, reduce backlogs, and reestablish timely case processing, USCIS is proposing to adjust its fees for the first time since 2016.

The proposed rule is predicted to generate close to an additional $2 billion per year, on average, for USCIS by keeping humanitarian case fees low and adding costs to business-related petitions and applications. The idea is that the fees will be based on the filers’ ability to pay.

However, raising the fees on business visa petitions and applications fails to recognize that small businesses may not be able to absorb these costs and will be at a competitive disadvantage in the search and retention of talent – even if large companies might be able to cope with the increases.

The proposed fee increases include:

  • H-1B Cap Registration Fee – $215 (currently, $10)
  • H-1B Filing Fee – $780 (currently, $460)
  • L-1 Filing Fee – $1,385 (currently, $460)
  • O-1 Filing Fee – $1,055 (currently, $460)
  • E and TN Filing Fee – $1,015 (currently, $460)
  • I-765 EAD Paper Filing Fee – $650 (currently, $410)
  • I-765 EAD Online Filing Fee – $555 (currently, $410)
  • I-131 Application for Travel Document – $630 (currently, $575)
  • I-485 Application for Adjustment of Status – $1,540 (currently, $1,140)
  • Petition by Investor to Remove Conditions on Permanent Residence – $9,525 (currently, $3,750)

Beyond the proposed fee changes, USCIS is also proposing:

  • Generally incorporating biometrics costs in the main benefit fee
  • Establishing separate filing fees for Form I-129 petition types
  • Limiting the number of beneficiaries allowed on certain petitions for nonimmigrant workers
  • Revising the premium processing timeframe from 15 calendar days to 15 business days
  • Instituting lower fees for certain cases filed online
  • Instituting a new $600 surcharge on all fee-paying receipts I-129 and I-140 petitions to cover costs associated with asylum processing. This surcharge would apply to all initial petitions, changes of status, and extensions of stay.

The 60-day comment period on the proposed rule begins on January 4, 2023, and it continues through March 6, 2023. The new fee rule will not go into effect until after received comments are reviewed and the final rule is published in the Federal Register.

Jackson Lewis attorneys are available to assist with questions about the proposed fees and consult regarding strategic options and planning for possible fee increases.

U.S. Citizenship and Immigration Services (USCIS) is trying to approve as many employment-based green card applications as it can before the annual deadline of September 30, 2022 (the end of the fiscal year).

Primarily due to COVID-19 restrictions, approximately 140,000 family-based visa numbers went unused last fiscal year. As a result, these unused visa numbers were rolled over to this year’s employment-based visa number allocation; meaning, twice as many employment-based green cards are available this year.

USCIS and the Department of State (DOS) are primarily dealing with processing challenges and backlogs due to restraints imposed by the COVID-19 pandemic, as well as other issues.

What are USCIS and DOS doing in order to appropriately issue all available employment-based visas and hit the 280,000 limit this year? Among other things, the agencies are:

  • Prioritizing processing and adjudication of employment-based adjustment applications at all locations;
  • Prioritizing adjudication of immigrant visa petitions (I-140s) to focus on beneficiaries who are or will be current this year;
  • Providing overtime and supplemental USCIS staff to support the employment-based applications;
  • Initiating an aggressive hiring and training plan for new staff;
  • Waiving interviews and reusing biometrics, where possible;
  • Redistributing cases to match workloads with resources;
  • Establishing a dedicated mailing address for requests from those who wish to transfer their pending cases to a different employment-based category;
  • Encouraging applicants who know their Form I-693, Report of Medical Examination and Vaccination Records, are no longer valid to be prepared to submit a new medical as soon as they receive a Request for Evidence (RFE) (but not submit their I-693 before the RFE is issued);
  • Proactively identifying applications that lack valid medicals and issuing early RFEs; and
  • Temporarily waiving (until September 30, 2022) the requirement that the civil surgeon sign the Form I-693 no more than 60 days before the applicant files for adjustment of status.

DOS issued 19,799 immigrant visas and USCIS used 175,728 immigrant visas (through adjustment of status applications) for a total of 195,507 out of the available total of 262,288. Accordingly, 66,781 employment-based visas went unused. In comparison to this year, these respective agencies noted that, as of mid-June, they had used many more employment-based immigrant visas than they did at the same point in time last year, and they are continuing to adjudicate these respective applications at a higher rate than last year. According to USCIS, they are “well-positioned to use all the available employment-based immigrant visas in FY 2022 ….”

If you have any questions about pending green card matters, please reach out to your Jackson Lewis attorney.

Instructions allowing Hong Kong Deferred Enforced Departure (DED) beneficiaries to apply for employment authorization have been published in the Federal Register.

On August 5, 2021, President Biden granted DED for certain eligible residents of Hong Kong for 18 months, until February 5, 2023, and directed that instructions on how to apply for employment authorization be issued. DED is a humanitarian administrative stay of removal and is authorized based upon the President’s constitutional authority to conduct foreign relations. It is generally granted where foreign nationals in the United States might face danger if required to return to areas or countries experiencing political instability, conflict, or other unsafe conditions.

Those eligible for Hong Kong DED must, among other things:

  • Hold a Hong Kong Special Administrative Region Passport, a British National Overseas Passport, a British Overseas Citizen Passport, a Hong Kong Permanent Identity card, or a Hong Kong Special Administrative Region Document of Identity for Visa Purposes;
  • Have been present and continuously resided in the United States since August 5, 2021; and
  • Have not voluntarily returned to Hong Kong or the People’s Republic of China after August 5, 2021.

There is no “application” for DED, but those who are eligible for DED may apply for an Employment Authorization Document (EAD). To do so, the applicant must:

  • File an Application for Employment Authorization (Form I-765) and indicate that they are eligible for DED, which is category (a)(11) on the form;
  • Submit the requested documentation pursuant to the form’s instructions; and
  • Submit the fee ($410) or request a fee waiver.

USCIS will notify the applicant if biometrics are required.

EADs, including those issued based on DED, are List A Documents for Form I-9 Employment Eligibility Verification purposes and should be accepted as such.

The instructions indicate that DED beneficiaries may also apply for travel authorization (Advance Parole), which will be granted in the discretion of the Department of Homeland Security. Filing for Advance Parole means filing with USCIS a Form I-131 with the appropriate fee. The Form I-131 may be filed concurrently with the Form I-765.

For more detailed instructions, please see the Federal Register.

If you have any questions about Hong Kong DED, please reach out to your Jackson Lewis attorney.

One of the themes of this year’s USCIS Ombudsman Annual Report is that the agency has been through “a year like no other.” USCIS faced “unprecedented challenges.” With the COVID-19 pandemic came temporary office closures, reduced capacity, and budget cuts. This led to previously unseen levels of backlogs and deepening financial problems, according to the report.

The staff of the USCIS Ombudsman fields requests for help (as an avenue of last resort), is a force multiplier in disseminating immigration information, and gives recommendations to the USCIS about ways to improve services.

According to the report, USCIS made changes to adapt to COVID-19 to increase efficiency that may well continue: expansion of electronic filing and processing capabilities, increased outreach to stakeholders, and improved coordination between USCIS and other government agencies.

The report focused on the need for USCIS to speed up its transition to a digital environment. Initiated 15 years ago, the transition has been slow. As a result, during the pandemic, employees had problems accessing and returning paper files, and the lack of product lines that could be fully processed electronically added to the backlogs.

Another major issue that was exacerbated by COVID-19 is USCIS’ financial insecurity. Because the agency depends solely upon fees for revenue, the resources available to it can be unpredictable. During the COVID-19 pandemic, when the number of filings dropped, major furloughs were threatened. USCIS managed to avoid furloughs by instituting other budget reductions. USCIS used premium processing fees for operations (generally, those fees must be set aside for the digital environment project). Congress passed legislation that would allow USCIS to add more types of cases to premium processing (including I-765 Applications for Employment Authorization). The agency has not instituted those because it does not yet have the staff to accommodate the timelines. While it may take years for USCIS to re-achieve full staffing (after a hiring freeze), the report noted that more premium processing eligibility can be expected.

Moving forward, the Ombudsman recommended USCIS continue some of its pandemic policies:

  • Expansion of remote work, prioritization of online filing, and expansion of the digital environment project
  • Generous interview waiver policies
  • Drive-thru naturalization oaths
  • Reuse of biometrics
  • Remote appearances of attorneys and other representatives
  • Creation of more e-tools
  • More public engagement

Jackson Lewis attorneys will continue to monitor and report developments at USCIS. Please contact us with any questions.

In Washington federal court, H-4 and L-2 spouses are continuing their fight to end the delays in approving visa extensions and work authorization – some of which are taking over a year to adjudicate. The plaintiffs in Edakunni v. Mayorkas are asking the court to decide whether this constitutes an unreasonable delay.

The plaintiffs contend USCIS is not using its workforce effectively and is continuing adjudication delays to force more petitioners and applicants to pay for premium processing and, thus, help USCIS with its budgetary problems. The government counters that the delays are basically due to the disruptions caused by COVID-19 and that the harm suffered by the plaintiffs is “purely economic harm and does not implicate human health or welfare” – therefore, is not unreasonable.

Leading companies and organizations, along with the U.S. Chamber of Commerce, filed an amicus brief in the case, noting the delays in EAD adjudications are “directly and indirectly” affecting the economy. The companies argued that, when the highly educated and highly skilled spouses of the 580,000 H-1B and 75,000 L-1 visa holders cannot obtain work authorization, all of these individuals will ultimately decide to leave the United States and take their talents to other countries. The companies also explained that the costs are not “purely economic.” Many visa holders have made “irreversible life decisions” about housing and having children and “indeterminate gaps in employment authorization” are leading to increased anxiety and depression among those affected.

Meanwhile, the American Immigration Lawyers Association (AILA) sent a letter to USCIS in March 2021 with suggestions on how to deal with the delays:

  • Eliminate unnecessary biometrics;
  • Grant automatic extensions for timely filed EAD applications; and
  • Allow earlier filing of EAD renewals.

In May, USCIS eliminated the biometrics requirement for some applications, including H-4 and L-2 applications, in response to a declaration in Edakunni, but none of AILA’s other recommendations have been adopted and the delays continue.

Jackson Lewis attorneys will provide updates as they become available.

Foreign students soon may find themselves subject to new policies and processes regarding their status in the United States.

U.S. Immigration and Customs Enforcement (ICE) has released for comment its proposed rule Establishing a Fixed Time Period of Admission and an Extension of Stay Procedures for Individuals in F, J and I Status. The 31-day comment period will run until October 26, 2020. The primary purpose of the proposed rule is to replace the Duration of Status (D/S) entries with a regime under which students and others will be admitted for specific periods of time, will need to apply for extensions of stay, and may accrue unlawful presence if they overstay or fall out of status.

In 2018, the Administration issued a policy memorandum that would have accomplished the same goals as the proposal. Enjoined by Judge Loretta Biggs in Guilford College v. Chad Wolf, the government was stopped from enforcing its new policy. The court found the policy violated not only the Administrative Procedures Act (APA), but also the Immigration and Nationality Act (INA). The Administration appealed, but then unexpectedly withdrew its appeal. This led many to think the Administration was going to take a new approach and submit a new rule for notice and comment to overcome at least some of the problems identified by Judge Biggs – and that is what happened.

Under the proposed rule, D/S admissions will end for all those in F, J, and I status. Below are some of the highlights of the proposed rule for F-1 students:

  • Students will no longer be admitted in D/S status. Instead they will be admitted until the end date of their programs – not to exceed 2 or 4 years.
  • To promote E-Verify usage, students at schools that use E-Verify may be able to receive 4-year admissions while students at schools that do not will be subject to 2-year admissions.
  • The 60-day grace period at the conclusion of status will be reduced to a 30-day grace period.
  • To remain in the U.S. beyond their initial admission period, students will have to apply to USCIS for an extension of stay and biometrics will be required.
  • Students will become subject to accruing unlawful presence.
  • Students will not be able to change programs within the same educational level more than twice and will not be able to change programs to a lower educational level more than once.

More favorable for students, under the proposed rule, Cap-Gap work authorization will be extended until April 1 of the fiscal year in which a Cap H-1B change of status is filed.

The proposed rule also establishes a transition period. When the new rule goes into effect, students maintaining valid status will be able to remain in the U.S. until the end dates of their programs (per their I-20s), not to exceed four years plus 60 days from the effective date of the rule. This, however, will not apply to any students who travel outside of the U.S. during the four-year period. Such travel will subject a student to the new fixed term admission rules.

If you have any questions about this rule or would like assistance in submitting comments, Jackson Lewis attorneys are available to assist you. As the rule goes through the notice and comment process, we will provide updates as they become available.

The Consent Order and Final Statement (Order) in Subramanya v. USCIS, the case seeking the agency’s issuance of long-delayed Employment Authorization Documents (EADs), has been signed and issued.

Under the Order, approximately 75,000 identified, delayed EADs are expected to be produced and mailed. The Order includes individuals who have EAD approval notices dated from December 1, 2019, through August 20, 2020, but who have not received their corresponding cards. In the meantime, these individuals will be permitted to use their Form I-797 approval notices to complete the Form I-9 employment verification process.

The Order sets out the specific schedule for production and mailing of the EADs as follows:

  • There are 27,829 individuals who have received I-765 approval notices. The production of their cards has been ordered. Their EAD cards should be mailed by August 28, 2020.
  • There are 17,736 individuals who have received I-765 approval notices, but the production of their cards has not been ordered. USCIS claims that is because biometrics are still required. Most of these individuals now have biometrics scheduled on or before September 4, 2020 (17 will not be scheduled until September 15, 2020, and one will not be scheduled until September 22, 2020). USCIS has agreed that these EADs will be mailed within seven business days of the biometrics capture.

Approximately 30,000 EADs were reportedly produced and mailed between July 22, 2020, the date the complaint was filed, and August 20, 2020.

USCIS has been ordered to pay $90,000 to defendants’ attorneys in settlement of all claims for attorneys’ fees and costs. The court will retain jurisdiction and receive reports on compliance until all identified EADs have been mailed.

For questions regarding the Order, please reach out to your Jackson Lewis attorney.