Fees Going Up Again, USCIS Increases Premium Processing Fee

The fee increases continue. USCIS has announced that its fee for premium processing will increase from $1,440 to $2,500 on October 19.  Any request for premium processing postmarked on or after October 19 without the new fee will be returned, and the underlying petition will be adjudicated under “normal” processing. As adjudication times under normal processing become longer and longer, it is increasingly necessary to file a premium processing request in order to obtain a decision within any reasonable timeframe.  We are dismayed that the cost of filing a petition with USCIS has just increased by more than a thousand dollars.

Oh No, Prevailing Wages Raises for Foreign Workers

DOL is raising prevailing wages to the point where it will be very difficult to obtain H-1B visas for all but the highest-paid occupations.  The agency has issued an interim final rule, effective immediately, that dramatically increases prevailing wages for H-1B, H-1B1, and E-3 workers and immigrant EB-2 and EB-3 workers.  The rule will have a significant adverse effect on U.S. employers, especially cost-sensitive entities like nonprofits, universities, hospitals, start-ups, and small businesses. The rule and other recent anti-H-1B actions (see below) are also likely to push some employers and foreign workers to relocate to other countries.

This rule was implemented under a process intended for emergent situations where there isn’t time for the notice and comment ordinarily required for government rulemaking.  We expect the rule to be swiftly challenged in the courts.

More Change, DHS Revises Definition of H-1B ‘Specialty Occupation’

DHS is also making it much harder to obtain an H-1B visa.  The agency issued an interim final rule effective December 7, 2020 revising the regulatory definition of a “specialty occupation,” which is the cornerstone of the H-1B visa classification. For decades, a specialty occupation has been defined as requiring the theoretical and practical application of a “body of highly specialized knowledge” and attainment of at least a bachelor’s degree in the specialty.  Many court decisions, and until recently USCIS adjudications, have accepted the idea that this “body of highly specialized knowledge” can be attained through a variety of degree fields.  The new rule changes the foundation of the H-1B by requiring that there be a “direct relationship” between the required degree field(s) and the duties of the position. We don’t yet know how USCIS will decide what constitutes a “direct relationship,” but we can expect agency adjudications to move toward requiring a one-to-one correspondence between the degree and the job – an approach that has been consistently rejected by the courts.

The rule also:

  • Adds definitions for “worksite” and “third-party worksite”;
  • Revises the definition of “United States employer”;
  • Clarifies how U.S. Citizenship and Immigration Services (USCIS) will determine whether there is an “employer-employee relationship” between the petitioner and the beneficiary; and
  • Requires corroborating evidence of work in a specialty occupation

 

As with the new DOL rule, this rule was implemented under the interim final rule provisions which bypass the notice and comment process ordinarily required for government rulemaking – and which provide the public and other interested parties with the opportunity to speak to the merits and impact of a new rule.  We expect this rule to be challenged as well.

NIE Guidance for Travelers from the Schengen Area, United Kingdom, and Ireland

DOS recently released updated guidance on national interest exceptions for travelers from the Schengen Area, United Kingdom (UK), and Ireland. Certain business travelers, investors, treaty traders, academics, students, and journalists may qualify for national interest exceptions under related Presidential Proclamations. Qualified travelers who are applying for or have valid visas or Electronic System for Travel Authorization (ESTA) authorization may travel to the United States following the procedures below:

  • Students traveling from the Schengen Area, the UK, and Ireland with valid F-1 and M-1 visas do not need to contact an embassy or consulate to seek an individual national interest exception to travel. Students seeking to apply for new F-1 or M-1 visas should check the status of visa services at the nearest embassy or consulate. Those applicants who are found to be otherwise qualified for an F-1 or M-1 visa will automatically be considered for a national interest exception to travel.
  • Business travelers, investors, academics, J-1 students, journalists, and treaty traders who have a valid visa in the appropriate class, an ESTA authorization that was issued before Presidential Proclamations’ 9993 or 9996 effective dates, or who are seeking to apply for a visa, and believe they may qualify for a national interest exception, should contact the nearest U.S. embassy or consulate before traveling. If a national interest exception is approved, they may travel on either a valid visa or ESTA authorization, as appropriate.

DOS (Department of State) said it also continues to grant national interest exceptions for qualified travelers seeking to enter the United States for purposes related to humanitarian travel, public health response, and national security.

We’re excited to become a partner firm in the WR Immigration Family

Chin & Curtis, LLP, Boston’s largest independent immigration law firm, today announced it will join forces with California-based Wolfsdorf Rosenthal LLP (WR). Chin & Curtis will become a WR partner firm effective January 1, 2021. Read our press release for additional information.