Zachary A. Haugen

The Department of Homeland Security published a final rule Jan. 31 adjusting the filing fees for applications for immigration benefits submitted to U.S. Citizenship and Immigration Services (USCIS). For most application types — and particularly for most employment-based requests — the fees will increase, in some cases substantially. The new fees will go into effect on April 1 unless implementation is delayed or otherwise impacted due to legal challenges. Notable Changes The most notable changes in the fee structure for common employment-based

The potential government shutdown Sunday would impact a host of federal government programs and agencies, and immigration is no exception. Here’s a look at the potential impact of a shutdown on immigration-related programs and what employers and foreign workers can expect. USCIS U.S. Citizenship and Immigration Services (“USCIS”) is a fee-based agency — as opposed to having its funding appropriated by Congress — and, therefore, many of its operations will continue as normal. USCIS should continue to accept, process and adjudicate petitions

COVID-19-related temporary flexibilities for Form I-9 end July 31, and employers face the daunting task of completing in-person physical document inspections for employees whose documents were inspected remotely by Aug. 30. The newly announced alternative remote I-9 document examination procedure authorized by the Department of Homeland Security (DHS) provides much needed and welcome relief for qualified E-Verify employers. Effective July 31, the COVID-19 flexibilities that had permitted employers to remotely examine I-9 documents under certain circumstances since March 20, 2020 will

U.S. Citizenship and Immigration Services (USCIS) updated last year its policy guidance about a specific type of employment-based, immigrant visa petition known as a National Interest Waiver (NIW), clarifying and possibly relaxing the standards for foreign nationals with advanced degrees in science, technology, engineering, and mathematics (STEM) fields. The new guidance reflects the Biden Administration’s efforts to attract and retain foreign STEM graduates, which we previously discussed in regards to O-1 nonimmigrant visas. These updates make the NIW a potentially

U.S. Citizenship and Immigration Services (USCIS) published a final rule on March 30, 2022 that will increase access to its premium processing service, under which applicants for certain immigration benefits can obtain expedited processing by paying additional fees. Through the new rule, USCIS seeks to address the budget shortfalls, backlogs, and ever-increasing processing times that have plagued the agency and frustrated applicants, especially during the Covid-19 pandemic. USCIS intends to introduce the increased access to premium processing in the following

Update (October 26, 2021): The Biden Administration has announced that the vaccination requirement for international travelers to the United States described in this post will go into effect on November 8, 2021. The vaccination requirement will apply to travelers arriving both at airports and land border crossings. Limited exceptions will apply, most notably for children under 18 years of age. The Biden administration has announced that it will lift current regional pandemic-related travel restrictions on foreign nationals in early November. The

In February, we outlined some immediate and anticipated changes in the business immigration environment after the Biden Administration took office. Now that several months have passed and the Administration has had time to implement its policies, it is worth revisiting these issues. Regulatory Changes In its waning days, the Trump Administration introduced a number of regulations that would have restricted employment-based immigration programs in various ways. Upon taking office, the Biden Administration instituted a 60-day freeze on all pending and proposed regulations,

The first two weeks of the Biden Administration have seen a flurry of activity indicating it will move away from the more restrictive immigration environment of the Trump era, including for employment-based immigration programs. This post summarizes some of the early actions the Biden Administration has taken. Regulatory Freeze The Biden Administration instituted a freeze on all pending and proposed regulations for a 60-day period of review. In its last several months, the Trump Administration had issued or proposed a series of

On January 8, 2021, the Department of Homeland Security (“DHS”) published a final rule that would dramatically change how H-1B cap petitions are selected in the annual “lottery.” Under this final rule, the current random selection process would be replaced with a system that gives priority to workers whose offered salary is in the highest wage levels for their occupation and geographic location. The new rule will go into effect 60 days after publication—March 9, 2021—and U.S. Citizenship and Immigration

On October 8, 2020, the U.S. Department of Homeland Security (DHS) and the U.S. Department of Labor (DOL) published new regulations that could dramatically tighten the eligibility requirements for H-1B visa petitions and substantially raise the wages that must be paid to foreign nationals in certain visa classifications, including H-1B and many employment-based green card categories. These new regulations are part of the Trump Administration’s wider effort to restrict legal immigration programs and further the goals of the Buy American,

Last night, President Trump signed a Presidential Proclamation imposing entry restrictions on certain foreign nationals in temporary work visa statuses, including H-1B, L-1, J-1 and H-2B, and related categories for dependents, with some exceptions. The restrictions will take effect on June 24, 2020, at 12:01am EDT and will expire on December 31, 2020, subject to possible extensions. Additionally, the Proclamation extends the current restrictions on certain immigrant visa applicants until December 31, 2020. The Proclamation will only impact foreign nationals

According to media and other sources, the Trump Administration will likely issue a Presidential Proclamation instituting additional immigration restrictions by the end of this month. The Proclamation is likely to extend the April 22, 2020, Presidential Proclamation, “Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak,” which suspended immigrant visa processing for some applicants for permanent residency for 60 days. The new Proclamation is also expected to impose temporary

The spread of COVID-19 is taking the world by storm with unprecedented and far-ranging consequences. During this extraordinary time, many employers are dealing with difficult issues regarding their workforces amidst office closures, shelter-in-place orders and other disruptions. Below we provide general guidance to common questions and scenarios with respect to workers in H-1B status during this challenging time, although particular cases will require an individualized assessment. 1.    Can an H-1B worker be furloughed or placed in other unpaid leave status? No, an

In response to the significant challenges related to the COVID-19 pandemic, the U.S. Department of Homeland Security (DHS) and the Department of State (DOS) have recently implemented temporary operational changes and immigration-related measures. Below are some of the important updates impacting U.S. employers and their foreign national workers. Suspension of Routine Visa Services by the DOS The DOS is temporarily suspending routine, non-emergency visa services at all U.S. embassies and consulates. Embassies and consulates will cancel all routine immigrant and nonimmigrant visa

On January 9, 2020, USCIS published a notice in the Federal Register to formally announce the implementation of the new registration process for H-1B cap-subject (lottery) petitions for fiscal year 2021. According to USCIS, the initial H-1B petition registration period will run from March 1 through March 20, 2020, and selected registrants will be notified no later than March 31, 2020. Employers may submit full petitions and supporting evidence for selected employees within the filing period to be specified by

As we approach the holiday season, immigration practitioners, interested employers, and foreign nationals are gearing up for yet another H-1B lottery season. The upcoming lottery season will be significantly different than in previous years due to USCIS’s implementation of a new H-1B electronic registration system that will dramatically change how H-1B cap-subject petitions are filed and selected. New H-1B Electronic Registration System On January 31, 2019, the Department of Homeland Security published a new rule introducing an electronic registration system for cap-subject

On September 3, 2019, U.S. Citizenship and Immigration Services (USCIS) announced a notice of proposed rulemaking that would require employers seeking to file H-1B cap subject petitions to pay a $10 fee for each electronic registration they submit to USCIS. The public has 30 days to submit comments on the proposed regulation. By way of background, USCIS is planning to implement a new system for the filing of cap-subject H-1B petitions. Please see our January 31, 2019 blog post. Under the new

On May 31, 2019, the Department of State (DOS) updated its immigrant and nonimmigrant visa application forms (Forms DS-260 and DS-160, respectively) to require that visa applicants divulge their social media identifiers for all accounts used in the five-year period preceding the date of the visa application. While the new forms require visa applicants to list the username, handle, screen name and other identifiers associated with any social media account or profile, disclosure of passwords is not required. What’s the reason

On January 30, 2019, the Department of Homeland Security announced a final rule amending regulations governing H-1B cap-subject petitions. The final rule reverses the order by which U.S. Citizenship and Immigration Services (USCIS) selects H-1B petitions under the H-1B regular cap and the advanced degree exemption, and it also introduces an electronic registration requirement for petitioners seeking to file H-1B cap-subject petitions. The reverse selection order will apply to petitions filed for the fiscal year (FY) 2020 H-1B cap season (starting on

As 2018 draws to a close and much of the world is celebrating the holiday season, the immigration world is preparing to enter another H-1B lottery season. For an overview of the H-1B program and H-1B lottery, please see our December 3 blog. Current H-1B Adjudication Trends Until last year, receiving a Request for Evidence (RFE) was the exception rather than the rule and a denial was a rare occurrence. Now, it is fairly common for an H-1B petition to result in the

The Department of Homeland Security (DHS) published today in the Federal Register a notice of proposed rulemaking that would change how employers file cap-subject H-1B petitions and how USCIS conducts the H-1B lottery process. The proposed rule would require employers to first electronically register with U.S. Citizenship and Immigration Services (USCIS) during a designated registration period. The proposed rule would also reverse the order in which USCIS selects H-1B petitions under the H-1B cap and the advanced degree exemption. Background on the H-1B

In our July 12, 2018 blog, we discussed a new U.S. Citizenship and Immigration Services (USCIS) policy requiring the issuance of a Notice to Appear (NTA), which initiates removal proceedings against a foreign national, upon the denial of an immigration benefit request where the denial renders the applicant “not legally present” in the United States. As we noted at the time, the new policy marked a potentially significant departure from previous practice and the ramifications were unknown, but concerning. USCIS had

In the evening of July 13, 2018 (Friday), U.S. Citizenship and Immigration Services (USCIS) posted new policy guidance giving immigration adjudicators marching orders to deny an immigration application or petition without having to first issue a request for evidence (RFE) or notice of intent to deny (NOID) if the original submission lacks sufficient initial evidence to establish eligibility. This new policy guidance, effective September 11, 2018, rescinds USCIS’s June 3, 2013 policy guidance and represents a drastic policy shift, potentially to

On July 5, 2018, U.S. Citizenship and Immigration Services (USCIS) published new guidance that will generally require that USCIS issue a Notice to Appear (NTA), and thereby initiate removal proceedings, upon its denial of an immigration benefit request where the denial renders the applicant “not legally present” in the United States. This reflects a dramatic change in prior practice that may have far-reaching implications for many.   What Is an NTA? The issuance of an NTA is the government’s method for instituting

The U.S. Department of Homeland Security’s Office of the Inspector General (OIG) released a report on March 9, 2018 entitled: “USCIS Has Unclear Website Information and Unrealistic Time Goals for Adjudication Green Card Applications.” While this is not surprising news to those of us who practice in this field, the report highlights a significant problem with the processing time information that the USCIS disseminates to the public.   What Processing Time Information Does the USCIS Publish? The USCIS regularly posts data on