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DHS Proposes Fixed Admission Periods for Individuals Entering in F, J, and I Categories

Posted September 28, 2020Articles

 

Background:

  • Currently, foreign nationals entering the U.S. in F, J, and I visa categories are admitted for the period of time that they are complying with the terms and conditions of their nonimmigrant category, or duration of status (i.e. D/S). These visa categories represent academic students, exchange visitors, and foreign information media, respectively.
  • Under duration of status entry, there is no fixed time period of admission for foreign nationals, in comparison to other visa entries (e.g. H-1B or L-1) which provide a fixed I-94 expiration date.
  • Lack of a fixed time period admission on F, J, and I entries has posed challenges to USCIS and CBP officers to determine whether a foreign national on this status has been maintaining their lawful status and not accruing unlawful presence in the U.S.

Proposed Changes:

  • The Department of Homeland Security (DHS) has proposed to amend its regulations by changing the admission period of F, J, and I nonimmigrants from duration of status to a fixed period of admission.
  • Admitting the above categories for a fixed period of admission would require foreign nationals holding those visa categories to apply for extensions of status with USCIS or depart the U.S. and apply for admission at a Port of Entry with the CBP prior to a status expiration.
  • Under the proposed regulation, failure to maintain lawful presence in the U.S. by foreign nationals on F, J, or I visas would make them subject to accrual of unlawful presence should they fail to maintain their status or overstay their period of lawful admission in the U.S.
  • The proposal also seeks to the make the following changes to these programs:
    • Automatic extension of employment authorization for some F-1s: Pending a timely filed extension that remains pending beyond the F-1s authorized period of admission, F-1s would receive a 180-day automatic extension of STEM employment authorization. This would not be available to CPT or pre- or post-STEM OPT.
    • Extension of 240-day rule for Js and Is: Timely filed extensions for Js and Is that remain pending beyond the period of admission would receive automatic extension of employment authorization up to 240 days, while the extension remains pending.
    • Shorter grace periods for F-1s: Grace periods for F-1s following the completion of their program or practical training are proposed to be shortened from 60-day to 30 days.
    • Cap-Gap Extension: The proposal seeks to extend cap-gap work authorization and F-1 extensions of stay from October 1 to April 1 of the following year pending a timely filed H-1B cap petition. This would seek to limit disruptions in employment for H-1B petitions that have delayed adjudication.
    • Potential J-1 extension during H-1B cap adjudication: Pending delays in H-1B cap adjudication, the proposal would give the DHS the option of extending J-1 nonimmigrant status while the H-1B is pending.

Next Steps:

  • The DHS will accept comments on the proposed regulation change until October 26, 2020. After the comment period, DHS will review the feedback and pending any revisions, could prepare to issue a final rule publication in the Federal Register, which could take several months to complete.
  • Pending approval and finalization of the regulation, clients and foreign nationals should expect increased compliance responsibilities to ensure nonimmigrants in F, J, and I status are maintaining lawful presence in the US with timely filed extensions of status, as needed.

Meltzer Hellrung will continue to monitor the proposed regulation and provide updates when available. Please reach out to your designated Meltzer Hellrung attorney with any questions or contact our firm at: consultation@meltzerhellrung.com.

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New Regulation to Increase Minimum Wages for H-1B, H-1B1, E-3 and PERMS Under Review

Posted September 17, 2020Stephanie Wedel - Sr. AssociateArticles, Green Card, H-1B
The Department of Labor (DOL) has submitted a regulation to the Office of Management and Budget (OMB) that will change the wage levels and requirements in the H-1B, H-1B1, E-3 and PERM programs. DOL is intending to issue the regulation as an interim final rule so it can be implemented immediately. This fast-track plan prevents the public from providing feedback before the rule takes effect. The details of the regulation will remain confidential until the rule is released for publication.  The rule is expected to increase minimum wages as well as increased wage requirements for employers. Expectations OMB has up to 90 days to review the regulation, but this review can be completed sooner. Once review is completed, the regulation will be published to the Federal Register and is expected to take effect immediately after publication. We are closely monitoring the matter and will provide updates as they are made available. Please contact your designated Meltzer Hellrung attorney or consultation@meltzerhellrung.com with any questions.

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Extended Flexibility for Responses to USCIS Requests

Posted September 15, 2020Lana Lee - ParalegalArticles

On September 11, 2020, USCIS announced that it will further extend selected deadlines for responses to:

  • Requests for Evidence;
  • Continuations to Request Evidence (N-14);
  • Notices of Intent to Deny;
  • Notices of Intent to Revoke;
  • Notices of Intent to Rescind and Notices of Intent to Terminate regional investment centers;
  • Motions to Reopen an N-400 Pursuant to 8 CFR 335.5, Receipt of Derogatory Information After Grant;
  • Filing date requirements for Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings (Under Section 336 of the INA); and
  • Filing date requirements for Form I-290B, Notice of Appeal or Motion.

What does this mean for cases?

Due to the ongoing coronavirus pandemic, USCIS will accept responses or requests listed above that are submitted or filed within 60 calendar days of the due date. The request, notice, or decision may have been issued anytime between March 1, 2020 and January 1, 2021.

If you have any questions about deadlines for any of the mentioned items, please contact your Meltzer Hellrung attorney or consultations@meltzerhellrung.com.

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DHS Proposes Significant Changes Concerning the Use and Collection of Biometrics

Posted September 9, 2020Cheryl Kilborn - Sr. AssociateArticles

The Department of Homeland Security (DHS) has released a notice of proposed rulemaking that would significantly change current biometrics regulations. The proposed rule, according to DHS, is meant to provide the agency with enhanced flexibility in the collection and management of biometrics information throughout the “immigration lifecycle.” If enacted, the proposed rule would expand the type of information that can be collected, who it can be collected from, and for what purposes it can be used.

Current regulations:

  • The current DHS biometric collection process for benefits adjudication for an applicant/beneficiary begins with the collection of an individual’s photograph, fingerprints, and signature at an authorized biometric collection site
  • Current regulations generally require documentary evidence such as marriage and birth certificates, and secondary evidence such as medical records, school records, religious documents, and affidavits to support claims based on familial relationships. In some situations, individuals are allowed to voluntarily submit DNA test results
  • For all other benefit requests and enforcement actions, DHS must decide, in accordance with its statutory and regulatory authorities, if the request or enforcement action justifies collection of biometrics and notify the individual where they will be collected when a collection is warranted and for what purposes they will be used

DHS proposes to change the regulations in a number of ways including:

  • DHS proposes that any applicant, petitioner, sponsor, beneficiary, or individual filing or associated with a certain benefit or request, including U.S. citizens and without regard to age, must appear for biometrics collection unless DHS waives or exempts the requirement
  • DHS proposes to increase the biometric modalities that DHS collects, to include iris image, palm print, and voice print
  • DHS proposes that any individual alien who is present in the United States following an approved immigration benefit may be required to submit biometrics unless and until they are granted U.S. citizenship
  • Under the proposed rule, DHS may expressly require, request, or accept DNA evidence to demonstrate the existence of the claimed genetic relationship. Further, DHS proposes to require biometrics from U.S. citizens or lawful permanent residents when they submit a family-based visa petition
  • DHS proposes to collect biometrics and perform background checks on U.S. citizen and lawful permanent resident principals of a regional center (EB-5)

Firm Insight:

If enacted, the proposed rule would expand the type of information that can be collected, who it can be collected from, and for what purposes it can be used including:

  • Most significantly, petitioners or sponsors, whether family-based or employment, could be required to provide biometrics as opposed to just the applicant/beneficiary
  • Collection of biometrics, including DNA could be required, regardless of a minor’s age
  • Foreign nationals and legal permanent residents could be required to continue to provide biometrics up until the point of becoming a U.S. citizen
  • Harsher scrutiny of EB-5 regional centers by performing background checks on U.S. citizens and lawful permanent residents to determine whether the regional center itself is bona fide and capable of promoting economic growth

The proposed rule will be published in the Federal Register on September 11, 2020 and will be available for public comment. It generally takes no less than 120 days for a new rule to go into effect.

Meltzer Hellrung will continue to monitor the proposal and provide updates as they become available.

Please reach out to your designated Meltzer Hellrung attorney or email us at consultation@meltzerhellrung.com, with questions.

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USCIS to Change Premium Processing from 15 Calendar Days to 15 Business Days

Posted September 3, 2020Amelia Moore - ParalegalArticles

The U.S. Citizenship and Immigration Services (USCIS) has announced that their standard for calculating the 15- day premium processing window will change. USCIS previously required that an adjudicative action be taken within 15 calendar days if premium processing was requested for an additional fee.

However, starting October 2nd, this policy will be updated to require action within 15 business days. This includes only days in which the Federal Government is open for business, therefore excluding:

  • Weekends
  • Federally observed holidays
  • Other days in which the Federal Government is closed (inclement weather, national emergencies, etc.)

Recommendations:

We recommend allotting for additional time for premium processing petitions to account for change. The premium processing service will essentially have 3 weeks now to adjudicate petitions instead of the previous 2 weeks.

If you have any questions regarding this change or its effect on your case, please contact your designated Meltzer Hellrung attorney.

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