USCIS Final Rule To Benefit Certain Employment-Based Nonimmigrants

The U.S. Citizenship and Immigration Services (USCIS) published a final rule that would positively impact certain employment-based nonimmigrants by providing them greater employment flexibility, which would also benefit their families. The provisions of this rule will take effect on January 17, 2017.

Aside from confirming some of the provisions of the Twenty-First Century Act and the American Competitiveness and Workforce Improvement Act (AC21) that relates to foreign workers, below are some of the notable changes in the final rule.
 

Retention of priority dates

The final rule clarifies that priority dates can be retained as long as the approval of the initial Form I-140 petition was not revoked for fraud, willful misrepresentation of a material fact,the invalidation or revocation of a labor certification or material error.
 

Retention of employment-based immigrant visa petitions

Under the final rule, Form I–140 petitions that have been approved for 180 days or more would no longer be subject to automatic revocation based solely on the withdrawal by the petitioner or the termination of the petitioner’s business. This will enhance job portability for individuals with an approved I-140 petition who are not able to adjust their status to permanent resident due to visa backlogs.
 

Eligibility for employment authorization in compelling circumstances

The final rule will allow certain nonimmigrants (and their family members) to apply for separate employment authorization in order to avoid difficult employment situations, such as having to leave the country due to visa backlogs. In order to obtain this type of employment authorization, the individual must:

  • be in the United States in E–3, H–1B, H–1B1, O–1, or L–1 nonimmigrant status, including in any applicable grace period, on the date the application for employment authorization is filed;
  • be the principal beneficiary of an approved Form I–140 petition;
  • establish that an immigrant visa is not authorized for issuance based on his or her priority date, preference category, and country of chargeability according to the Final Action Date in effect on the date the application is filed; and
  • demonstrate compelling circumstances that justify the exercise of USCIS discretion to issue an independent grant of employment authorization.

The validity period of compelling circumstances employment authorization is limited to one (1) year and may be renewed in 1-year increments.
 

Automatic extension of EAD validity

The final rule will also automatically extend the validity of existing EAD’s (Employment Authorization Document), issued to certain employment-eligible individuals, for up to 180 days from the date of expiration. USCIS requires that:

  • the renewal application is filed based on the same employment authorization category as the previously issued EAD;
  • the renewal application is timely filed prior to the expiration of the EAD; and
  • the individual’s eligibility for employment authorization continues beyond the expiration of the EAD and an independent adjudication of the underlying eligibility is not a prerequisite to the extension of the employment authorization.

 

10-day nonimmigrant grace periods

Currently, only nonimmigrants in H-1B, O, and P classifications are afforded with this “10-10” grace period — 10 days before the petition validity period begins and up to 10 days after the authorized validity period ends. Under the final rule, the 10-day grace period will extend to nonimmigrants in E-1, E-2, E-3, L-1 and TN classifications.
 

60-day nonimmigrant grace periods

In addition to extending the availability of 10-day grace periods, the new rule adds up to 60 consecutive days grace period for each authorized validity period for certain high-skilled nonimmigrants even when their employment ends before their authorized validity period so that they may more readily pursue new employment or an extension of status. This applies to individuals (and family members) in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN classifications. In sum, during the grace period, these nonimmigrant may change employment, change nonimmigrant status or extend their status while in the United States.
 


Posted in Updates

USCIS Releases Revised Form I-9

The U.S. Citizenship and Immigration Services (USCIS) published a revised version of the Form I-9 (version 11/14/2016 N), which is now available for use. As announced earlier, employers may continue to use the previous version of Form I-9, with revision date of 03/08/2013 N, through January 21, 2017. By Jan. 22, 2017, employers must use only the new version.
 

Among the changes in the new version, Section 1 asks for “other last names used” rather than “other names used,” and streamlines certification for certain foreign nationals.

    • The addition of prompts to ensure information is entered correctly.
    • The ability to enter multiple preparers and translators.
    • A dedicated area for including additional information rather than having to add it in the margins.
    • A supplemental page for the preparer/translator.

The instructions have been separated from the form, in line with other USCIS forms, and include specific instructions for completing each field.

The revised Form I-9 is also easier to complete on a computer. Enhancements include drop-down lists and calendars for filling in dates, on-screen instructions for each field, easy access to the full instructions, and an option to clear the form and start over. When the employer prints the completed form, a quick response (QR) code is automatically generated, which can be read by most QR readers.

 


Posted in Updates

USCIS Increases Government Filing Fees

The U.S. Citizenship and Immigration Services (USCIS) announced today that new fees will take effect beginning December 23, 2016. This means that applications and petitions postmarked or filed on or after December 23, 2016 must include the new fees or USCIS will reject the petition or application.

The fee for Form I-907, Request For Premium Processing Service ($1,225) remains the same.
 
Some of the new fees taking effect on December 23, 2016 are as follows:

Immigration Benefit Request New Fee ($) Old Fee ($) Fee Change ($) Percentage Change (%)
I–90 Application to Replace Permanent Resident Card 455 365 90 25
I–129/129CW Petition for a Nonimmigrant worker 460 325 135 42
I–129F Petition for Alien Fiancé(e) 535 340 195 57
I-130 Petition for Alien Relative 535 420 115 27
I-131/I-131A Application for Travel Document 575 360 215 60
I–140 Immigrant Petition for Alien Worker 700 580 120 21
I–485 Application to Register Permanent Residence or Adjust Status 1,140 985 155 16
I-485 Application to Register Permanent Residence or Adjust Status (certain applicants under the age of 14 years) 750 635 115 18
I–526 Immigrant Petition by Alien Entrepreneur 3,675 1,500 2,175 145
I–539 Application to Extend/Change Nonimmigrant Status 370 290 80 28
I-612 Application for Waiver of the Foreign Residence Requirement (Under Section 212(e) of the INA, as Amended) 930 585 345 59
I–751 Petition to Remove Conditions on Residence 595 505 90 18
I–765 Application for Employment Authorization 410 380 30 8
I–824 Application for Action on an Approved Application or Petition 465 405 60 15
I–829 Petition by Entrepreneur to Remove Conditions 3,750 3,750 0 0
N–400 Application for Naturalization 640 595 45 8
USCIS Immigrant Fee 220 165 55 33
Biometric Services Fee 85 85 0 0
 


Posted in Updates

Electronic Visa Update System For Chinese Passport Holders

Beginning November 29, 2016, the U.S. Customs and Border Protection (CBP) will begin implementing its Electronic Visa Update System (EVUS) online program, which is designed to update basic and other biographic information of travelers (regardless of age) who are carrying maximum validity (10-year) B1/B2, B1, and B2 visas in their passports issued by the People’s Republic of China. After this date, Chinese travelers without valid EVUS enrollment will not be admitted into the United States even if they have valid visitor visas.

History

In 2014, the United States and China entered into a reciprocal arrangement, which extends each country’s visa validity for eligible students and visitors.

That same arrangement recognized that travelers would be required periodically to complete an online form updating the information they used to apply for the visa. EVUS was developed to allow travelers to provide the most current information – including name, passport number, address, and employment – to immigration officials before traveling to the United States.

Notes

  • CBP expects to include additional countries in the future.
  • CBP plans to begin accepting early enrollment on a voluntary basis beginning this month.
  • EVUS is available at: www.cbp.gov/EVUS (not yet available as of this post).
  • EVUS fee is $8 (or approximately 53 RMB) per submission of updated information.
  • Anyone can submit information to EVUS on behalf of the traveler.
  • CBP recommends enrollment at least one week before scheduled departure to the United States.
  • EVUS enrollment is valid for two years or when the traveler’s visa or passport expires, whichever comes first.
  • EVUS will not require the traveler to submit a photograph or fingerprints.
  • Travelers subject to EVUS requirements are required to enroll whether or not there is new information.

Posted in Updates

Update On Visa & Passport Photo Requirements

On September 23, 2016, the State Department announced that U.S. embassies and consulates will no longer accept photographs of visa and passport applicants wearing eyeglasses beginning November 1, 2016. This also applies to photos for U.S. passport applications. Exceptions apply in rare cases where applicants are required to wear eyeglasses for medical necessity.

Under the No Eyeglasses Policy, an applicant may wear eyeglasses in a visa or passport application photograph in rare circumstances of medical necessity, for example, when an applicant has had recent ocular surgery and eyeglasses are necessary to protect his/her eyes during urgent travel. Applicants must provide a medical statement signed by a medical professional/health practitioner in these cases. Posts must issue a limited one-year validity passport (using endorsement code 46 or endorsement code 109 for EPDPs) when the medical condition is temporary and travel is imminent.

Grace Period

The State Department will provide applicants with a 30-day grace period, during which time U.S. embassies and consulates are advised not to refuse visa or passport applications with photographs of applicants wearing eyeglasses.

Beginning December 1, 2016, this new rule will be strictly enforced — applicants must submit photographs without eyeglasses for all new visa and passport applications, or provide a medical statement.

Posted in Updates

Green Card (DV) Lottery Update: State Department Adds Additional Entrants To “Selected” Status Just Before End Of Fiscal Year!

In a little-seen post on Facebook, the U.S. State Department on September 10, 2016 reminded green card lottery applicants (DV Lottery) to check their DV 2017 status because additional entrants have been “added” to the “selected” status. Considering that all DV applicants must be processed for immigrant visas (i.e. green cards) by the end of the fiscal year on September 30, 2016, anyone who may now have been selected will have to file a “Hail Mary” application to try and make it before the fiscal year ends. Applicants or entrants may check their status with their unique confirmation number on the DV lottery website at https://www.dvlottery.state.gov.
 

REMINDER!
    • Beware of the numerous green card lottery scams out there. While DV applicants may receive an email from the U.S. government reminding them to check their status online through DV Entrant Status Check, they will not receive a notification letter or email informing them that they are a successful DV entrant. Applicants can only find out if they were selected to continue with DV processing by checking their status online through the DV Entrant Status Check at http://www.dvlottery.state.gov. Fees for the DV application process are paid to the U.S. embassy or consulate at the time of the green card interview, or if filing an I-485 adjustment of status application, by submitting the application with the appropriate government filing fee. The U.S. government will never ask you to send payment in advance by check, money order, or wire transfer.
Posted in Updates

USCIS Confirms: Current Form I-9 Valid Until January 21, 2017

On September 12, 2016, the U.S. Citizenship and Immigration Services (USCIS) posted on its “What’s New” page that employers may continue using the current version of Form I-9 with a revision date of 03/08/2013 N until Jan. 21, 2017. After Jan. 21, 2017, all previous versions of Form I-9 will be invalid. USCIS is expected to publish a new and revised Form I-9 by November 22, 2016 (the Office of Management and Budget (OMB) approved a revised Form I-9 on August 25, 2016).

Posted in Updates

International Entrepreneur Rule: A New Opportunity For Foreign Entrepreneurs

On August 24, 2016, the U.S. Citizenship and Immigration Services (USCIS) proposed a new rule that would benefit foreign entrepreneurs of startup companies that would provide significant public benefit to the United States through substantial and demonstrated potential for rapid business growth and job creation. The International Entrepreneur Rule will allow international entrepreneurs to be considered for parole (temporary permission to be in the United States) so that they may start and develop their businesses here in the United States.

Eligibility

Under this proposed rule, DHS may parole, on a case-by-case basis, eligible entrepreneurs of startup enterprises:

  1. Who have a significant ownership interest in the startup (at least 15 percent) and have an active and central role to its operations;
  2. Whose startup was formed in the United States within the past three years; and
  3. Whose startup has substantial and demonstrated potential for rapid business growth and job creation, as evidenced by:
    • Receiving significant investment of capital (at least $345,000) from certain qualified U.S. investors with established records of successful investments;
    • Receiving significant awards or grants (at least $100,000) from certain federal, state or local government entities; or
    • Partially satisfying one or both of the above criteria in addition to other reliable and compelling evidence of the startup entity’s substantial potential for rapid growth and job creation.

In addition, the proposed rule lists two (2) ancillary conditions for eligibility, such as:

  • Applicants must maintain household income greater than 400 percent of the poverty line, and
  • The qualifying start-up capital cannot come from family members (parents, spouse, brother, sister, son or daughter).

Validity

If the application for parole is granted, it would provide a temporary initial stay of up to 2 years (which may be extended by up to an additional 3 years) to facilitate the entrepreneur’s ability to oversee and grow the startup company in the United States.

Restrictions

An entrepreneur who is paroled into the United States under this proposed rule would be authorized for employment incident to his or her parole with the startup entity. The entrepreneur parolee’s employment authorization would be limited to the specific start-up entity listed on the Application for Entrepreneur Parole. This limitation is intended to keep the scope of employment authorization within the purposes for which parole was granted. As the purpose of this proposed rule is to encourage foreign entrepreneurs to develop and grow their start-up businesses in the United States—rather than obtain new sources of employment—DHS believes this limitation on employment authorization is a reasonable restriction.

No more than three entrepreneurs may receive parole with respect to any one qualifying company or entity.

Application Forms, Costs and Decision

  • Entrepreneur applicant: Form I-941, Application For Entrepreneur Parole ($1,200) + Biometrics Fee ($85)
  • Each Spouse and child(ren): Form I-131, Application For Travel Document ($360) + Biometrics Fee, if 14 years of age or over ($85)
  • Spouse only (work authorization): Form I-751, Application For Employment Authorization ($380)

As noted above, an entrepreneur who is paroled into the United States under this proposed rule will be authorized for employment “incident” to his or her parole with the startup entity — this means that the entrepreneur will not receive (and does not need to apply for) an employment authorization document or EAD.

A denial of parole application under this proposed rule cannot be appealed. USCIS will not consider a motion to reopen or reconsider a denial of parole.

Renewal and Continuous Employment Authorization

To facilitate maintenance of continuous work authorization and parole, DHS is proposing that an entrepreneur parolee may file a request for re-parole beginning 90 days prior to the expiration date of his or her current period of parole.

DHS also proposes to automatically extend the employment authorization of those entrepreneur parolees whose parole has expired but who has filed a timely application for re-parole with the same start-up entity. DHS is proposing that this automatic employment authorization will extend for 240 days from the date the entrepreneur’s initial parole period expires, or until USCIS makes a decision on the re-parole request, whichever is sooner, when a request for re-parole was timely filed by the entrepreneur.

Nonimmigrants Currently in the United States

Entrepreneurs who are currently in the United States in other nonimmigrant visa classifications are eligible to apply for parole under this proposed rule. However, once the application for parole is approved, they will need to leave the country and request to be paroled into the United States at a port of entry, as parole will not involve any direct change from other nonimmigrant status.

 


Posted in Updates

USCIS Proposes Fee Increase

On May 4, the U.S. Citizenship and Immigration Services (USCIS) published a proposal to increase its current fee schedule. The table below highlights the changes to some of the most common petitions/applications affected by this recent proposal.

Note that both the biometric services fee and premium processing fee (not listed) remain the same. Furthermore, USCIS proposes a fee of $750 for a child under 14 years of age when filing with a parent — a $115 increase from the current filing fee of $635. Other noteworthy increases include the I-129 fee (filed with all nonimmigrant visa petitions), which increases from $325 to $460.
 

Proposed Fees by Immigration Benefit

Immigration Benefit Request Current ($) Proposed ($) Fee Change ($) Percentage Change (%)
G-1041 Genealogy Index Search Request $20 $65 $45 225
G-1041A Genealogy Records Request (Copy from Microfilm) 20 65 45 225
G-1041A Genealogy Records Request (Copy from Textual Record) 35 65 30 86
I-90 Application to Replace Permanent Resident Card 365 455 90 25
I-102 Application for Replacement/Initial Nonimmigrant Arrival-Departure Document 330 445 115 35
I-129 Petition for a Nonimmigrant worker 325 460 135 42
I-129F Petition for Alien Fianc[eacute](e) 340 535 195 57
I-130 Petition for Alien Relative 420 535 115 27
I-131/I-131A Application for Travel Document 360 575 215 60
I-140 Immigrant Petition for Alien Worker 580 700 120 21
I-290B Notice of Appeal or Motion 630 675 45 7
I-360 Petition for Amerasian Widow(er) or Special Immigrant 405 435 30 7
I-485 Application to Register Permanent Residence or Adjust Status 985 1,140 155 16
I-526 Immigrant Petition by Alien Entrepreneur 1,500 3,675 2,175 145
I-539 Application to Extend/Change Nonimmigrant Status 290 370 80 28
I-600/600A/800/800A Orphan Petitions 720 775 55 8
I-601A Application for Provisional Unlawful Presence Waiver 585 630 45 8
I-687 Application for Status as a Temporary Resident under Section 245A of the Immigration and Nationality Act 1,130 1,130 0 0
I-690 Application for Waiver of Grounds of Inadmissibility 200 715 515 258
I-694 Notice of Appeal of Decision 755 890 135 18
I-698 Application to Adjust Status From Temporary to Permanent Resident (Under Section 245A of the INA) 1,020 1,670 650 64
I-751 Petition to Remove Conditions on Residence 505 595 90 18
I-765 Application for Employment Authorization 380 410 30 8
I-800A Supp. 3 Request for Action on Approved Form I-800A 360 385 25 7
I-817 Application for Family Unity Benefits 435 600 165 38
I-824 Application for Action on an Approved Application or Petition 405 465 60 15
I-829 Petition by Entrepreneur to Remove Conditions 3,750 3,750 0 0
I-910 Application for Civil Surgeon Designation 615 785 170 28
I-924 Application for Regional Center Designation Under the Immigrant Investor Program

6,230 17,795 11,565 186
I-924A Annual Certification of Regional Center 0 3,035 3,035 N/A
I-929 Petition for Qualifying Family Member of a U-1 Nonimmigrant 215 230 15 7
N-300 Application to File Declaration of Intention 250 270 20 8
N-336 Request for Hearing on a Decision in Naturalization Proceedings 650 700 50 8
N-400 Application for Naturalization 595 640 45 8
N-470 Application to Preserve Residence for Naturalization Purposes 330 355 25 8
N-565 Application for Replacement Naturalization/Citizenship Document 345 555 210 61
N-600/N-600K Application for Certificate of Citizenship 600 1,170 570 95
I-191, I-192, I-193, I-212, I-601, I-602, I-612 Waiver Forms 585 930 345 59
USCIS Immigrant Fee 165 220 55 33
Biometric Services 85 85 0 0
Posted in Updates

Diversity Visa (DV) 2017 Lottery Results Now Available

Beginning May 3, 2016, applicants for the DV-2017 lottery may enter their confirmation information into the DV Entrant Status Check to see if they have been selected for the green card lottery. DV-2017 applicants should keep their confirmation number until at least September 30, 2017 and continue to check the status periodically as more selections may be made throughout the year.

Posted in Updates