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Articles Posted in Immigration Applications

President-elect Joe Biden’s plans for immigration are expected to be a stark contrast to the Trump administration agenda.  Some of President-elect Biden’s stated priorities are:

  1. Reinstating the Deferred Action for Childhood Arrivals (DACA and Temporary Protected Status (TPS)

The Trump administration has relentlessly attached the DACA program.  President-elect Biden has promised to fully reinstate DACA and will seek to make its protections permanent.  President-elect Biden has also stated that he intends to review TPS designations to ensure people are not returned to unsafe countries.

On July 31, 2020, the U.S. Department of Homeland Security (DHS) announced a final rule that will adjust fees for specific immigration and naturalization benefit requests to “ensure U.S. Citizenship and Immigration Services [USCIS] recovers its costs of services.” Unlike most government agencies, USCIS is fee funded and the announcement comes amid concerns about potential furloughs at USCIS due to a budgetary shortfall.

While filing fees for most applications will be increasing, the most notable increase is for naturalization (citizenship) applications.  The current USCIS filing fee for filing an N-400 Application for Naturalization is $640 (plus $85 for biometrics).  As of October 2, 2020, the USCIS filing fee will be increasing to $1,170 for paper filings (on-line filings are $10 less) – an increase of 83% !

If you have had your green card for at least five years, you may be eligible to naturalize if you have physically resided in the U.S. for at least half (2.5 years) of the preceding 5 years. Any trips outside of the U.S. for more than 6 consecutive months may break the continuous residency requirement unless you can prove that you were domiciled in the U.S. Any trips outside the U.S. for more than 12 consecutive months will definitely break the requirement.

On June 22, 2020 President Trump issued a proclamation continuing his previous proclamation of April 22, 2020, which suspended the entry of individuals on immigrant visas for 60 days. The new proclamation continues the suspension of entry of individuals on immigrant visas, and limits the entry of any individual seeking entry pursuant to any of the following nonimmigrant visas:

(a) an H-1B or H-2B visa, and any individual accompanying or following to join such individual;

(b) a J visa, to the extent the individual is participating in an intern, trainee, teacher, camp counselor, au pair, or summer work travel program, and any individual accompanying or following to join such individual; and

People who are thinking about applying to naturalize as a U.S. citizen may want to fast track their decision. USCIS announced a series of changes in filing fees which, if approved, would take effect in 2020. Among the fee changes, naturalization applications will seeing the highest increase from $725 to $1,255 (including biometrics).

If you have had your green card for at least five years, you may be eligible to naturalize if you have physically resided in the U.S. for at least half (2.5 years) of the preceding 5 years. Any trips outside of the U.S. for more than 6 consecutive months may break the continuous residency requirement unless you can prove that you were domiciled in the U.S. Any trips outside the U.S. for more than 12 consecutive months will definitely break the requirement.

If you obtained your green card through marriage, you may be eligible to naturalize after you’ve been married for 3 years and have had your green card for 3 years. You must also meet the continuous residency requirement – in this case, 1.5 years in the preceding 3 years. If it has been fewer than 5 years since you got your green card and you are naturalizing based on marriage to a U.S. citizen, you will also have to provide proof that you are still married.

US Citizenship & Immigration Services released a new version of Form I-9.  The new form bears a revision date of 10/21/2019.  Prior versions of the I-9 form are not authorized.  Employers have until April 30, 2020 to use the new version of the form.  To avoid unnecessary complications in the event of an ICE audit, employers should destroy blank copies of the old version of the I-9 form and distribute the new form for use immediately.

 

Employers use Form I-9 to verify their employees’ employment authorization in the United States.  Employers and employees must complete Form I-9, and employees must supply documents establishing their right to work in the United States by the third day of employment.  eVerify is not a substitute for this requirement.  Employers that participate in eVerify must also complete Form I-9.  Although USCIS publishes a Spanish language version of the I-9, the Spanish version is only authorized for use in Puerto Rico.  All other employers must use the English Language version of the form.

If you have any questions regarding this update, or any other immigration matter, please contact the immigration attorneys at Lubiner Schmidt & Palumbo LLC at (908) 709-0500 or info@lslawyers.com.

On January 30, 2020, U.S. Citizenship and Immigration Services (USCIS) announced that it will begin implementing the new public charge regulations on February 24, 2020. The regulations broadly expand the list of public benefits that can be considered, as well as the discretion given to immigration officers when deciding whether someone is “more likely than not” to become a public charge.

The rule was originally scheduled to take effect on October 15, 2019 but was blocked by nationwide injunctions filed by several federal judges across the country. The Supreme Court of the United States recently ruled in favor of the Trump administration to allow implementation of the regulations while legal challenges play out in the lower courts. The public charge rule will not be applied in the State of Illinois where a statewide injunction is still in place.

The public charge rule applies to certain adjustment of status (also known as green cards) applicants, as well as non-immigrants seeking to change their status or extend their stay. USCIS will apply the new standards to applications or petitions that are postmarked on or after February 24, 2020.

Happy New Year!  It’s never too early to start preparing for the H-1B Cap for Fiscal Year 2018, and our immigration attorneys are happy to aid your in the process.  Demand for the H-1B visa has steadily increased over the years; last year for instance, only about 36% of the H-1B petitions were selected in the lottery.  Employers should expect this trend to continue and be prepared to file their H-1B petitions on the earliest possible date, which is April 3, 2017 this year.

The H-1B is a significant visa category as it allows qualified professionals to enter the U.S. for employment in a specialty occupation.  Due to the ever-increasing demand for the visa, it is important the employers evaluate their employee populations early to ensure that all petitions are submitted by the earliest possible date.  Some of the different types of employees eligible for H-1B visas are F-1 Students and L-1B visa holders.

Students, particularly those on F visas, currently working for you pursuant to an approved Optional Practical Training (OPT) should be the first group of employees to consider for filing an H-1B petition.  The reason being that if you do not file H-1Bs for these employees, they will lose their employment authorization at the conclusion of their OPT.  Even when employees may extend their OPT, the employer is still advised to file an H-1B for the 2018 fiscal year, giving the employees two opportunities to obtain the H-1B.  In the event that more applications are filed than visas available and student employees do not obtain the H-1B this year, then the OPT extension will serve as a back-up and the employer may file for the H-1B again next year.

Just last week, Senators Lindsey Graham (R-SC), Dick Durbin (D-IL), Dianne Feinstein (D-CA), and Lisa Murkowski (R-AK) introduced the Bar Removal of Individuals who Dream ad Grow our Economy (BRIDGE) Act, which would provide work authorization and relief from deportation to individuals who are eligible for the DACA initiative created in 2012 by the Department of Homeland Security (DHS).

Under DACA, or Deferred Action for Childhood Arrivals, individuals who arrive in the United States as children must pass a background check and meet specific age, education, and United States residency requirements.  Once such requirements are met, eligible individuals are granted a temporary reprieve from deportation and are then able to receive a renewable two-year work permit.

Since 2012, approximately three-quarters of a million individuals have come forward to take advantage of the career and higher education opportunities that are made accessible to them through the provisions of DACA.  The BRIDGE Act would reinforce protections provided by DACA, while extending protection from deportation and eligibility of employment authorization to individuals who are not DACA recipients, but do qualify for the program.

The United States Citizenship and Immigration Services (USCIS) published a final rule to improve aspects of certain employment-based immigrant and nonimmigrant visa programs.  Preexisting regulations have been amended to enable US employers to hire and retain foreign workers who are beneficiaries of approved employment-based visa petitions as they wait to become lawful, permanent residents.  The rule positions nonimmigrant workers to further their careers by accepting promotions, changing positions within current employers, and pursuing other job opportunities.

These changes will expand the class of workers eligible to apply for an Employment Authorization Document (EAD), setting guidelines on when an employment-based immigrant may retain his or her “priority date” after departing from their employers. Among the more notable provisions, the rule permits persons of E-3, H-1B, H-1B1, O-1, or L-1 nonimmigrant status to apply for an EAD, provided they meet certain conditions:

  1. Applicant is the beneficiary of an approved employment-based immigration visa petition

To constituents, executive actions may seem like simple maneuvers—quick fixes to a discordant Supreme Court or a disagreeing Congress.  But to those who have held Presidential office, executive actions have shown themselves to be much more complex.  Each comes with its own set of statutorily or judicially imposed restraints.  Some actions are subject to modification or even revocation while others must comply with certain mandated procedures; all actions, though, fall subject to a lack of permanence and are often withdrawn just as swiftly as they were first put into place.

Most executive actions can be broken down into three basic categories:

  1. Executive orders, which are written directions issued by the incumbent President that govern actions of executive branch officials as well as government agencies
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