• Ashenberg Law Group

September 2020 Newsletter

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IMMIGRATION UPDATES

1. Continuation of EB-1 Worldwide Backlog, Mainland China Moved Forward 3 Weeks; EB-2 Rest of the World (ROW) Continues to be “Current”, Mainland China No Movement

The U.S. Department of State’s (DOS) most recently released Visa Bulletin for September 2020 shows a continuation of worldwide backlog for EB-1, and cutoff dates for issuance of an EB-1 immigrant visa for Mainland China born applicants moved forward 3 weeks to March 1, 2018.


On the other hand, the Visa Bulletin for September 2020 shows that EB-2 for Rest of the World (ROW) is “current”, and cutoff dates for issuance of an EB-2 immigrant visa for Mainland China born applicants remains at January 15, 2016.


USCIS will accept adjustment of status applications for all employment-based cases and F2A Spouses and Minor Children of Green Card Holders based on the “Final Action Dates” charts, and all other family-based cases based on the “Dates for Filing” charts. 

The September 2020 Visa Bulletin can be found here.


2. USCIS Adjusts Application Fees Beginning October 2, 2020


On August 3, 2020, DHS published a final rule that adjusts USCIS fees for certain immigration and naturalization benefit requests.  DHS is adjusting USCIS fees by a weighted average increase of 20% to help recover its operational costs. This final rule will be effective starting October 2, 2020.


Some highlights of this final rule are as follows:


Higher fees and new forms for H-1B, L-1 and other employment-based nonimmigrant petitions


DHS plans to separate the standard Form I-129 into different forms, while imposing different fees, for each classification. This change would affect all classifications sought through Form I-129, including H-1B, H-2A/B, L-1, O, and TN.

Additional border security fee payment for certain H-1B and L-1 employers


DHS is changing its policy, where employers with a high proportion of H-1B and L-1 employees (employers with more than 50 employees where more than 50% of whom are in H-1B or L-1 status) must pay a border security fee. Affected employers must pay this fee with each H-1B or L-1 extension of stay, in addition to initial filings and changes of employer.


New fee structure for adjustment of status applications and related benefits


Fees for adjustment of status (AOS) applications and related benefits, including employment authorization (EAD) and advance parole (AP), will dramatically increase. Previously “bundled” with the AOS application fee, applications for new and renewed EADs and APs will require separate fees beginning October 2, 2020. 

Extension of Premium Processing timeframe


DHS is extending the premium processing adjudication period from 15 calendar days to 15 business days. Premium processing fees, however, remain the same.


With fees almost doubling for AOS applications and related benefits, as well as naturalization applications, those who are eligible to apply should act fast and apply with USCIS as soon as possible!


3. The U.S. Court of Appeals for the Second Circuit Limits the Public Charge Injunction to Vermont, Connecticut, and New York


On August 12, 2020, the Second Circuit Court of Appeals limited the nationwide injunction on the DHS public charge rule to three (3) states:  Vermont, Connecticut, and New York. While this limited injunction is in effect, DHS may implement its public charge rule in all other U.S. states and the District of Columbia.


Since the public charge inadmissibility rule was published in the Federal Register on August 14, 2019, there have been multiple court Challenges and the Rule has been widely criticized. The Rule imposed additional requirements and background screenings for foreign nationals who hope to obtain green cards or secure temporary nonimmigrant status.


Due to the litigation, it is still unclear how the agencies will enforce this rule. USCIS has yet to issue guidance on how it will implement these differing public charge standards.


USCIS’ injunction page can be found here.


4. USCIS Announces Temporary Relaxations for Certain Foreign Nationals Waiting for Their EAD Cards


On August 19, 2020, USCIS announced that it will temporarily accept certain I-797 Approval Notices in place of original EADs as an acceptable form of employment authorization for I-9 purposes until December 1, 2020.


If you have an I-797 Approval Notice, dated December 1, 2019 through and including August 20, 2020, notifying you of your EAD approval, you may use it as evidence of temporary work authorization.


USCIS’ alert can be found here.


5. USCIS Averts Furlough of Nearly 70% of Workforce


On August 25, 2020, USCIS announced that it will not furlough more than 13,000 employees as it had originally planned for August 30, 2020.


However, according to USCIS Deputy Director for Policy Joseph Edlow, as a result of averting this furlough, there will be an increase in backlogs and wait times for pending case inquiries with the USCIS Contact Center, longer case processing times, and increased adjudication time for aliens adjusting status or naturalizing.


USCIS’ alert can be found here.

OTHER ANNOUNCEMENTS & UPDATES

ALG’s Free Webinar “Green Card Holders/Dual Citizens: Guide To Immigration and Tax Compliance” A Success


On August 12, 2020, ALG successfully hosted a free 1-hour online webinar on the topic “Green Card Holders/Dual Citizens: Guide To Immigration and Tax Compliance”. ALG’s experienced immigration attorneys Tzu-Hui (Olivia) Chien, Esq. and Chun-Chang (Edward) Su, Esq. discussed issues related to maintenance of permanent residency status, and eligibility and processes for naturalization. ALG’s very own Managing Attorney Eric P. Ashenberg, Esq., also a C.P.A. with 30 years of tax and accounting experience, discussed important tips on FATCA and FBAR Reporting for all taxpayers with foreign assets, funds and/or bank accounts.


During the webinar, many attendees actively asked questions and interacted with our attorneys. Our attorneys addressed their concerns and provided answers to their inquiries.


DOS Broadens National Interest Exceptions to Nonimmigrant Entry Ban for H-1B and L-1 Employees


On August 12, 2020, DOS updated the guidelines on national interest exceptions for the June 22, 2020 Presidential Proclamation suspending the entry into the U.S. for H-1B and L-1 visa applicants (and foreign nationals who are accompanying or following to join), among other nonimmigrant visa applicants.


Under the new guidance, foreign nationals may obtain a new H-1B or L-1 visa if they are returning to the U.S. to continue their previously approved employment with the same employer in the same visa category, or if the employment meets other economic recovery criteria.


DOS further specifies the criteria for the broadened national interest exceptions for each visa category. We will go into detail the exception criteria for H-1B and L-1 visa applicants as follows:


H-1B


As mentioned above, a foreign national may seek an H-1B visa to resume ongoing employment in the U.S. with the same employer in the same visa category.


Alternatively, an applicant may be eligible for a national interest exception if he or she meets two (2) of the following criteria: 

  • Employer has continued need for H-1B applicant’s services

  • LCA is approved during or after July 2020

  • Otherwise, the case will be reviewed on a case-by-case basis. If the work can be performed remotely outside the U.S., you do not qualify for this criterion.

  • Employer is in a critical infrastructure sector and applicant’s job duties meet critical infrastructure need

  • Critical infrastructure sectors include: chemical, communications, dams, defense industrial base, emergency services, energy, financial services, food and agriculture, government facilities, healthcare and public health, information technology, nuclear reactors, transportation, and water systems.

  • You must: 1) be in a senior-level position within the company, or have job duties that are unique and needed for management and success of the company; or 2) have job duties that are really specialized, and provide significant and unique contributions to the company

  • Wage level is 15% above the prevailing wage

  • Unusual education, training or experience

  • Have a doctorate or professional degree

  • Have many years of relevant work experience

  • Financial hardship for the employer 

  • Inability to meet financial or contractual obligations

  • Inability to continue business

  • Cannot return to pre-COVID level operations

L-1A


As mentioned above, a foreign national may seek an L-1A visa to resume ongoing employment in the U.S. with the same employer in the same visa category.


Alternatively, an applicant may be eligible for a national interest exception if he or she meets two (2) of the following criteria: 

  • Applicant will be a senior level executive or manager

  • Applicant has spent multiple years with the company overseas, indicating substantial experience and knowledge within the company

  • Employer is in a critical infrastructure sector and applicant’s job duties meet critical infrastructure need (as explained above)

L-1B


As mentioned above, a foreign national may seek an L-1B visa to resume ongoing employment in the U.S. with the same employer in the same visa category.


Alternatively, an applicant may be eligible for a national interest exception if he or she meets all of the following criteria: 

  • Applicant’s job duties and specialized knowledge will provide significant and unique contributions to the company

  • Applicant’s specialized knowledge is specifically related to a critical infrastructure need (as explained above)

  • Applicant has spent multiple years with the company overseas, indicating substantial experience and knowledge within the company

If you are eligible for a national interest exception to the nonimmigrant travel ban, you must request an emergency appointment with the corresponding consulate and detail the reasons of why you believe you qualify for an exception. If approved for an emergency appointment, you must appear for a personal interview, where the consular officer will then make the final determination at the end of the interview.


DOS’ alert can be found here.


Further Extension of Restrictions on US-Canada and US-Mexico Borders Until September 21, 2020


In order to limit the further spread of the coronavirus, on March 21, 2020, the U.S. reached agreements with both Canada and Mexico to limit all non-essential travel across borders. These joint initiatives were originally set to be in place for 30 days, subject to reevaluation and further extension in light of coronavirus pandemic developments. “Non-essential” travel includes travel that is considered tourism or recreational in nature.


On August 14, 2020, these measures were further extended until September 21, 2020, which marks the fifth extension since implementation. These restrictions do not apply to entry through U.S. airports.


DHS’ alert can be found here.

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