April 2023 Newsletter

by | Apr 24, 2023 | News

USCIS Proposes Fee Increases

On January 4, 2023, USCIS published a proposed rule to increase fees for most of the agency’s immigration applications. According to USCIS, which conducted a comprehensive fee review, they receive about 96 percent of their funding from customers in the form of filing fees, but the current fees do not recover the full cost of providing adjudication and naturalization services.

Many categories of petitions will require higher fees to file with USCIS. Some of the highest increases represented are in employment-based petitions, such as the current nominal H-1B registration fee of $10, which will increase to $215. Actual H-1 classification petitions will increase from $460 to $780. Applications for O visa classification will see a sharper increase from $460 to $1,055. The largest increase is on immigration petitions for investors, which is increasing from $3,675 to $11,160.

Humanitarian-based petitions, such as asylum, remain without filing fees, apart from applications for Temporary Protected Status (TPS). DHS did not propose to change to waiver eligibility based on an inability to pay. To encourage the naturalization of lawful permanent residents to U.S. citizens, USCIS proposes only a more modest increase for the N-400 application and biometrics fees—from $725 to $760.

One of the steepest proposed increases is raising the application fee for adjustment of status concurrently with employment and travel authorization from $1,225 to $2,820—a whopping 130 percent increase. For individuals filing for adjustment without applying for travel and work authorization, the fee will be $1,540, which is a 26 percent increase.

With the proposed fee increases, biometrics costs will be incorporated into the main benefit fees so applicants will no longer have to pay a separate biometrics fee. However, adjustment of status applications would no longer benefit from one bundled fee for the I-485, I-131 (Advance Parole), and I-765 Employment Authorization (EAD) applications. Each application will incur its own filing fee. The proposed filing fee for Form I-485 Adjustment of Status will be uniform for everyone, regardless of age (thus eliminating the reduced fee for children under 14 years of age). Additionally, individuals with a pending adjustment of status application would need to pay the I-765 and I-131 filing fees with USCIS when renewing their travel permit or work authorization.

Other changes include changing premium processing from 15 calendar days to 15 business days and having lower filing fee rates for certain applications if filed online, rather than on paper filings. (For instance, I-130s filed online would be $710, rather than $820 if submitted by paper.)

The last time USCIS successfully increased fees was in 2016. USCIS attempted to raise fees in August of 2020; however, the final fee rule was challenged with legal action, and a preliminary injunction and stay was issued by the U.S. District Court for the Northern District of California. Among other reasons, the litigation was based on the government’s lack of an explanation for the proposed fees.

This time, USCIS’s 210-page proposed rule includes a significant explanation for its fee review. USCIS accepted comments from the public until March 13, 2023. The agency is required to respond to public comments and then can publish a final rule. However, given the drastic changes in fees, USCIS is likely to face legal action from employers upset with the significant fee increases for work-related immigration applications, especially if forced to cover the costs of asylum-related adjudications. Nonprofits representing low-income individuals who cannot afford the price increases may also go to court with USCIS over its fee increases.

At a time when our nation’s economy is in desperate need of workers, drastically increasing filing fees on employment-based immigration applications seems highly questionable. Moreover, the immense increases in family-based petitions also seem out of place. More frequent and moderate fee increases to keep up with inflation would be far more reasonable and would be more likely to withstand legal scrutiny.

Though it is unknown exactly when and if the proposed fee increases will take place, we encourage individuals who are currently eligible for immigration benefits to file at their earliest convenience in order to avoid paying higher fees with USCIS.

April Visa Bulletin: Significant Retrogression in Many Preference Categories

The April 2023 Visa Bulletin just published by the U.S. Department of State indicates that the availability of visas will retrogress (or backlog) for several immigrant visa categories. Visa availability for the following family-based and employment-based preference categories will be affected as follows:

  • F-2A (Spouses and Children of Permanent Residents): F-2A will retrogress worldwide to September 8, 2020. F-2A for Mexico will retrogress to November 1, 2018.
  • EB-2 (Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability): EB-2 will retrogress worldwide by 4 months to July 1, 2022. EB-2 for India will retrogress by 8 months to January 1, 2011, while EB-2 for China will remain at June 8, 2019.
  • EB-3 (Skilled Workers, Professionals, and Other Workers): EB-3 will remain current worldwide while EB-3 for India will remain at June 15, 2012. EB-3 for China will advance by 3 months to November 1, 2018.
  • EB-4 (Certain Special Immigrants): EB-4 will retrogress worldwide to September 1, 2018.

The retrogression in visa availability for these preference categories will mean a longer wait, potentially for several years, for individuals seeking permanent resident status whose priority date is not current. An individual’s priority date is determined by the date the immigrant visa petition (I-360, I-130, I-140) or labor certification application was filed. Unless otherwise permitted by USCIS, individuals whose priority dates are not current will not be eligible to file an application to adjust status with USCIS.

Currently, USCIS will continue to accept adjustment of status applications for all F2A beneficiaries despite the retrogression in visa availability, through at least April 30, 2023. It is recommended that F2A beneficiaries plan to file their adjustment of status applications by April 2023 as it is unknown if USCIS will continue to accept applications in May 2023. Historically, this visa preference category has been backlogged at various times, and for two years.

The sudden 4+ year retrogression for EB-4 special immigrants is particularly troubling, and unanticipated. It is a result of new interpretations published on March 21, 2023, of how nationals of a foreign country are counted against per-country quotas. EB-4 is the preference category that governs G-4 retirees, G-4 children, SIJS (special immigrant juveniles), certain Iraqis and Afghans who worked on behalf of the U.S, religious workers, among others. For example, this may mean that international organizational staff, who have resided and worked in the United States for 15- 20-30 years will have to wait four to five years to be eligible to apply for their green cards. For religious workers adjusting from R-1 nonimmigrant visa status to green cards, the backlog is similarly tragic. R-1s are only permitted to stay in the U.S. for five years, so the backlog means that many R-1s will have to leave the U.S. for at least a year or more.

The EB-2 retrogression impacts highly skilled professionals as well as those filing national interest waivers. While Indian and Chinese nationals have been subject to long waits for visas, EB-2 immigrant visas in more recent times and until a few months ago have been available for all other nationals. What is worrisome is that the State Department has not provided any indication as to when visas will become available again.

For applicants who properly filed an application to adjust status with USCIS and whose priority date is no longer current due to retrogression, USCIS will hold their case in abeyance until a visa becomes available. These applicants with pending adjustment applications will continue to be eligible for employment authorization and advance parole, and will be able to renew those documents. Those processing their immigrant visa applications at U.S. consulates abroad must continue to wait for a visa number to become available.

The visa backlog and further retrogression in the preference categories negatively impacts U.S. businesses, families, and individuals who had anticipated becoming U.S. permanent residents.

Congress should address the backlogs through legislative action by raising the annual immigrant visa quotas and amending how the per-country caps are applied. In the absence of legislative action, the Biden Administration should take immediate regulatory action to mitigate the negative effects of the visa backlog.

Improvements to Adjustments of Status Filing Requirements for Asylees

On February 2, 2023, USCIS updated its guidance to clarify that both asylees and refugees must have been physically present in the United States for one year at the time of adjudicating their Form I-485, Application to Register Permanent Residence or Adjust Status. Previously, asylees were required to be present in the United States for a year at the time they filed their adjustment of status application. The updated guidance applies to all Form I-485 applications pending on February 2, 2023, and those filed on or after that date. This appears to mean that asylees can file for adjustment of status immediately after obtaining a grant of asylum, rather than waiting a full calendar year to file. Given the lengthy backlogs of adjudication of applications for adjustment of status for many asylees, this is a welcomed change that will expedite the process of asylees obtaining lawful permanent residence.

USCIS Fully Expands Premium Processing for Certain Employment-Based Visas

Effective January 30, 2023, USCIS began accepting premium processing requests for all pending and initial EB-1 multinational executive and manager I-140 petitions and all pending and initial EB-2 (National Interest Waiver) I-140 petitions. Unlike typical premium processing applications that require 15 days to adjudicate, USCIS has 45 days to take action on these specific employment-based visa categories.

USCIS has made clear that the 45-day count will start once the agency has received all necessary documentation required for the particular case. In circumstances when a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) is issued, a new 45-day count would begin once the agency receives the petitioner’s RFE or NOID response. Similar to other premium processing cases, the filing fee for these two categories of cases is $2,500.

What is an ADIT Stamp and When is it Needed?

An ADIT stamp (also known as an I-551 stamp) can be used by lawful permanent residents (LPRs) as evidence of their permanent residence when the permanent residence card has not yet been received, has expired, or has been lost. The ADIT stamp provides evidence of status so that LPRs are able to work and travel while awaiting the production of their green cards.

USCIS has just announced a new process to obtain this stamp. Previously, LPRs had to make an “InfoPass” appointment by calling the USCIS Contact Center and then appearing at a local USCIS field office for the stamping. Now, when LPRs call the USCIS Contact Center to request temporary evidence of status, an immigration services officer will verify their identity, their physical mailing address, and whether that address can receive UPS or FedEx express mail. They will then either schedule an in-person appointment for the lawful permanent resident, if needed or submit a request to the USCIS field office to issue the ADIT stamp. If an in-person appointment is not needed, the USCIS field office will review the request for temporary evidence and send the applicant a Form I-94 with an ADIT stamp, DHS seal, and a printed photo of the LPR obtained from USCIS systems.

Some LPRs will still need to appear in person at a USCIS field office to receive temporary evidence of their status, including those who have urgent needs, do not have a useable photo in USCIS systems, or whose address or identity cannot be confirmed.

The new process will allow USCIS to issue temporary evidence of lawful permanent resident status in a timely way without requiring a scheduled appointment at a field office, thereby reducing the burden on applicants.

The Biden Administration Introduces Abhorrent Asylum Restrictions

In late February, the Biden Administration announced new asylum policies that seek to disqualify migrants from asylee status if they entered the United States between official ports of entry after failing to seek refugee status in other countries that they may have crossed along the way. This proposed policy change can be detrimental to many asylum seekers from the southern border who have no other choice but to cross a third country to enter the United States.

The proposed policy is inconsistent with asylum law, which only prohibits eligibility if the applicant has “firmly resettled” in a third country. While firm resettlement may require complex legal analysis, typically it requires that the individual receive legal status in a third country that allows them to remain indefinitely and safely. The new policy, however, creates a “rebuttable presumption of asylum ineligibility” for those arriving at the southern border who have not pursued “protection in a country through which they traveled,” unless “they meet exceptions that will be specified.” Many critics of the policy see comparisons to actions taken by the Trump Administration to deter asylum seekers from receiving their due process under the law.

The Biden Administration’s far-reaching transit rule aims to disqualify individuals who crossed a third country on their way to the United States on the assumption that they could have safely resettled in a third country. In essence, the administration’s third-country transit rule assumes that just because an applicant passes through a third country, they can safely resettle there. This is simply not true. Many of the countries that these individuals are crossing cannot offer them the safety that they would receive in the United States.

Rather than creating unlawful changes to asylum eligibility, a more reasoned approach would be to improve procedures in courts and asylum offices to make sure claims can be processed more efficiently but still fairly.

Expedite Requests Can Be Helpful Tools to Obtaining Faster Adjudications

While adjudication times for immigration benefits can take several months to several years to decide, an applicant or petitioner can request that USCIS expedite the processing of an application or petition. These expedite requests will be considered by USCIS on a case-by-case basis and is entirely up to the discretion of USCIS.

USCIS can grant an expedite request for the following reasons: (1) severe financial loss; (2) urgent humanitarian reasons and emergencies; (3) nonprofit organizations petitioning on behalf of beneficiary’s performing an urgent and needed role; or (4) U.S. government agencies with urgent public safety or national security needs. When the expedite request is made on behalf of a U.S. governmental agency, a senior official must make the request.

USCIS may also grant expedited processing due to clear USCIS error. Generally, USCIS will not consider an expedited request for a petition or application where premium processing is available.

Unlike premium processing, there is no filing fee to submit an expedite request. An expedite request can be made to USCS by reaching out to USCIS customer service via phone or chat. The USCIS representative will note the reasons expedited processing is being requested and will submit that request for review. USCIS may request documentary evidence in support of the expedite request. USCIS will usually issue a response to the expedite request within 7 business days, but can take longer if needed.

USCIS Updates Child Status Protection Act (CSPA) Age Calculations for Certain Adjustment Applications

On February 14, 2023, USCIS updated its policy manual, effectively expanding age-out protections under the CSPA. Under the new guidance, USCIS will now use the Dates for Filing Chart to calculate noncitizens ages for CSPA purposes, which provides noncitizens more certainty about their eligibility to adjust their status. If these noncitizens are eligible to adjust their status because of the change in policy, and they have filed for adjustment of status, they will be eligible to apply for employment and travel authorization.

Noncitizens who could benefit from this policy update but previously had their adjustment of status applications denied may be eligible to file otherwise untimely motions to reopen their applications with USCIS to pursue benefits. While typically a motion to reopen must be filed within 30 days, USCIS has the discretion to grant an untimely request if the applicant can show that the delay was reasonable and beyond their control.

Of note, the policy change will not prevent all children from aging out of eligibility before an immigrant visa is available.

News in Brief

DHS Announces Extension and Redesignation of Temporary Protected Status for Somalia: In early March, DHS announced extending and redesignating Somalia for TPS for 18 months, from March 18, 2023, through September 17, 2024.

USCIS Announces Premium Processing for F-1 Students Seeking OPT or STEM OPT Extensions: USCIS is now permitting premium processing for students seeking OPT or STEM OPT extensions, including those who have already submitted their application for employment authorization and wish to upgrade their petitions.

Immigration Court Backlogs Continue to Increase: Immigration courts recorded receiving 335,754 new cases in FY 2023 as of January 2023. In the same time, the court completed 181,994. According to court records, only 0.61 percent of FY 2023 new cases sought orders because of criminal activity, apart from illegal entry into the United States. At the end of January of 2023, there were 2,097,195 active cases.

Immigration Detention Levels on the Rise: As of February 26, 2023, approximately 20,710 individuals were in immigration detention. Of the people detained, 9,112 were arrested by ICE, and 17,898 were arrested by CBP. This is a modest increase from February of 2022 when approximately 17,789 individuals were in immigration detention. In February of 2021, there were even fewer, at 13,258 detainees. It appears that as the United States removes pandemic restrictions, the willingness to keep individuals in immigration detention will continue to increase if this trend continues. However, the number of people detained is still roughly half that of February 2020, when there were over 38,537 individuals in immigration detention. In pre-pandemic years during the Trump Administration, the total number of people in immigration detention even exceeded 55,000 during certain months of 2019.

USCIS Redesigns Green Card and Employment Authorization Document: As of January 30, 2023, USCIS began issuing new designs of green cards and work permits to provide additional protections to prevent counterfeiting, fraud, and document tampering. Changes include detailed artwork; tactile printing; enhanced optically variable ink, holographic images on the front and back of cards; a layer-feature with a partial window on the back photo box, and changes in the locations of the data fields. Current green cards issued before the changes remain valid through expiration.