All posts by Cheng, Cho, & Yee, Immigration Lawyers

In-Person Interviews Waived for Nonimmigrant Visa Applicants

As of August 25, 2020, United States Secretary of State Mike Pompeo announced on behalf of the Department of State (DOS) that there would be an expansion of provisions enabling consular officers to waive in-person interviews for certain nonimmigrant visa applications. Specifically, the waiver would apply to renewing visas in the same category and classification as long as the visa had been expired for no longer than 12 months. 

The waiver has temporarily expanded the expiration period from 12 to 24 months, until December 31, 2020.

Qualifications for the Visa Renewal Interview Waiver

In order for nonimmigrant visa applicants to qualify for the visa renewal interview waiver and the expanded expiration period, they will be required to:

  • Apply to renew visas within 24 months after the expiration date of the previous visa.
  • Be applying for the renewal of the visa within the consular district of his or her normal residence.
  • Be applying for renewal under the same classification and category of visa. (For example, H-1B visa holders would be unable to qualify for the waiver if they wish to apply for F-1 visas, which aren’t within the same class or category)
  • Show no signs of ineligibility or noncompliance with any U.S. immigration laws or regulations.
  • Undergo all biometric visa requirements currently in place.

Waivers for F, M, and J Nonimmigrants

For F, M, and J nonimmigrant visa applicants who meet the criteria, interview requirements may also be waived, as long as the individual meets several additional requirements.

First, the F, M, or J applicant will need to have a Student and Exchange Visitor Information System (SEVIS) record that indicates either “initial” or “active” status.

For individuals applying for F and M student visas, applicants will need to either continue education in the same major course of study regardless of the institution he or she is attending, or to attend the same institution if they wish to change majors.

J exchange visitor visa applicants may only renew a J visa if he or she plans to continue the same exchange visitor program using the same SEVIS number as the one used for the previous visa.

If F, M, and J applicants show any discrepancies between visa applications or any other potential issues with compliance, consular officers may still be able to request an interview.

For additional information about which services are currently available and other details about nonimmigrant applications, the DOS website has more details.

USCIS Guidance on the Final Fee Rule

U.S. Citizenship and Immigration Services (USCIS) has recently made updates to their policy manual to provide official guidance on the final fee rule in place. Individuals who wish to learn more about the final fee rule can view the new fee charts and visit the organization’s news alert for additional details.

What the Final Fee Rule Means

On August 3, 2020, USCIS published a final fee rule with the goal of making it effective 60 days later in October. Specifically, the rule stated that “any application, petition, or request postmarked on or after this date must be accompanied with the fees established by this final rule.”

In addition to this change, updates included changes to Forms I-290 and I-765, along with premium processing and certain other types of fee processing. To help individuals better understand the changes that are to take place, USCIS published a final rule PDF that details all of the many changes to take place and how to approach the application process.

Due to a nationwide preliminary injunction issued by the U.S. District Court for the Northern District of California in September, the implementation of the USCIS fee rule was delayed. As a result, the final fee rule is currently on hold until the injunction is lifted and the rule is re-implemented. Regardless, it’s important to be aware of the changes.

In addition to Forms I-290 and I-765, other forms with updated fees according to the new rule would include:

  • I-102 — Application for Replacement/Initial Nonimmigrant Arrival-Departure Document
  • I-129 — Petition for a Nonimmigrant Worker
  • I-131 — Application for Travel Document (including advance parole)
  • I-140 — Immigrant Petition for Alien Worker
  • I-193 — Application for Waiver of Passport and/or Visa

Other Changes Beyond Forms and Fees

Apart from certain changes to fees and forms, there are other changes that would take effect with the new rule. Keep in mind that these are simply some of the changes detailed in the final rule by USCIS. For additional details, the USCIS website has more guidance and in-depth literature on the changes imposed.

Processing Time

The rule would change the timeframe for premium processing from 15 calendar days to 15 business days.

Limited Application Fee Waivers

The new rule would also limit application fee waivers to Violence Against Women Act (VAWA) self-petitioners, certain spouses and children who have been abused, T and U nonimmigrants, and Temporary Protected Status (TPS) applicants.

The Use of Signature Confirmation Restricted Delivery

USCIS would be permitted to use Signature Confirmation Restricted Delivery to deliver certain secure documents to applicants such as advance parole authorizations, green cards, and Employment Authorization Documents (EADs). This would be a continuation of a partially implemented protocol that was in place in 2018 for documents that required re-mailing due to issues with non-deliverable returns.

Returns for Fees

There are also certain circumstances when fee returns may be issued. For example, if a check or another payment method used for paying a fee is returned as unplayable due to a lack of funds, USCIS will provide a one-time resubmission of the payment to the remitter institution. However, if the fee fails to go through a second time, USCIS won’t accept the filing, and there will be no redepositing of payments if payment methods fail to go through for any reason other than insufficient funds.

The rule will also remove the $30 charge currently in place for dishonored payments, and the Department of Homeland Security (DHS) may reject any request accompanied by checks that are over 365 days older than the date of receipt.

Fees for Biometric Services

For a majority of applications, according to the rule, “DHS is incorporating the biometric services cost into the underlying immigration benefit request fee instead of charging a flat $85 biometric services fee… DHS will continue to recover the cost of providing biometric services, but it will do so by adjusting form fees to reflect the total cost of adjudication, including providing biometric services.” On the other hand, certain applications will come with a separate $85 or $30 biometric services fee.

The 9-11 Response and Biometric Entry-Exit Fee

The final rule will also issue a $4,000 9-11 Response and Biometric Entry-Exit Fee to any individuals who wish to file new or extending H-1B petitions and employ 50 or more employees in the U.S., as long as over 50% of those employees are on H-1B, L-1A, or L-1B nonimmigrant visas. However, there will be an exception granted for petitioners filing amended petitions without any request for an extended stay. For petitions filed on or after September 30, 2027, this fee will no longer apply.

The USCIS website offers additional information about this rule and all of the changes to be expected, along with guidance to help ensure compliance with the new rule. 

American Cities Are Facing a Shortage of Immigrants

Cities all over the United States are currently facing a shortage of immigrants as a result of the recent pandemic. This comes as the country faces one of the biggest economic downturns in decades, largely influenced by the immigration shortage. 

What the Immigration Shortage Means for the Country

Urban areas throughout the country help the American economy flourish, and one of the principal contributors to American cities is the immigrant population. Unfortunately, the COVID-19 pandemic has prevented immigrants, including those on H-1B visas, from entering the workforce and contributing to urban economies.

Following the spread of the novel coronavirus, the Trump Administration’s policies placed certain bottlenecks and restrictions on the ability to recruit highly-skilled foreign workers. These restrictions could remain in place even after the pandemic subsides and the country returns to a state of normality. The limits placed on immigrant workers could also hinder the country’s ability to economically recover and maintain a competitive edge.

Effects on the Urban Economy

A recent Axios report from Stef Knight details the effects of the pandemic on immigration and how the sudden drop in immigration impacted New York City.

In January, the U.S. issued over 61,000 skilled visas. By April, that number had dwindled to 494, with little to no change through July. New York’s approximately 3.1 million immigrants contribute around $232 billion to the city’s GDP and account for over half of NYC’s business owners. However, the immigrant population began declining prior to the pandemic as a result of harsher restrictions placed on immigrants, including individuals with business non-immigrant visas.

Research at Axios also determined that for New York to recover from the shortage of immigrants and the economic downturn, young professionals and creatives will need to play a key role in the improvement. Specifically, younger professionals will be coming into the city while older, wealthier individuals move out. As young individuals coming into the city need less space, landlords will continue to fill apartments and the city’s population will continue to increase, allowing the economy to begin to rebound. However, historically many young new citizens have been immigrants. Due to the immigration restrictions, the most probable source of potential newcomers is currently uncertain.

It’s unknown at this time precisely how long the current immigrant restrictions will last, but they could continue long after the pandemic wanes.

How Special Circumstances May Impact USCIS Applications, Petitions, or Requests

For individuals in the process of applying, petitioning, or making immigration requests to U.S. Citizenship and Immigration Services (USCIS), certain situations such as natural disasters may impact processing. 

The following are some of the steps that USCIS will take depending on the special circumstances affecting an individual’s case.

Inability to Pay Fees

If an individual is unable to pay a fee for a particular USCIS benefit or service, it may be possible to receive a fee waiver by filing Form I-912.

Changes of Status and Extension Requests

USCIS may consider how a special situation impacted an applicant’s ability to depart. Even if an individual fails to apply for a change of status or extension prior to the expiration of their period of admission, USCIS may be able to forgive that delay in the event of unforeseen and uncontrollable circumstances.

Unforeseen Circumstances Resulting in Financial Difficulties for F-1 Students

Students applying for F-1 student visas suffering from economic hardships as a result of uncontrollable and unpredictable situations may be able to request employment authorization for off-campus work, provided they meet specific regulatory criteria. 

Some of the situations affecting F-1 students may include:

  • Medical bills
  • Lost on-campus employment or financial aid
  • Inordinate surges in the cost of living or tuition
  • Fluctuating exchange rates or currency values
  • Unforeseen changes in the financial status of sources of support
  • Other costs that weren’t anticipated or controllable

Students can apply for financial relief by submitting Form I-765 and Form I-20, along with other supporting documents.

For some students facing hardships due to natural disasters, military conflicts and war, or national or international economic crises, it may be possible to request Special Student Relief from USCIS.

Employees and Employers Affected by Special Situations

If employees or employers are affected by special situations, all requirements for Form I-9 will still apply. For employers, E-Verify will still be available via E-Verify employer agents or the E-Verify web portal.

Employees completing Form I-9 for business visas can follow information included in the form if their documents were damaged, lost, or stolen. Instructions are also available on the USCIS website.

Inability to Appear for Biometrics Appointments, Appear for Interviews, or Respond to Requests for Evidence

If individuals are unable to appear for appointments or interviews, or can’t respond to a request for evidence, they may be able to explain what circumstances were behind missed appointments or responses.

In addition to the above circumstances, some immigrants may qualify for special immigrant visas.

COVID Safety Guidelines for Entering a USCIS Facility

Due to the COVID-19 pandemic, United States Citizenship and Immigration Services (USCIS) has put new guidelines in place for visitors who wish to enter a USCIS facility. The new guidelines aim to create a safer environment for workers, applicants, and others present in or around their facilities.

Resuming Service After Closure

As of June 4, USCIS resumed its public services following a period of closure due to the spread of COVID-19. On March 18, the agency temporarily suspended all in-person services at its offices and support centers in an effort to prevent the virus’s spread. Since the closure and reopening, USCIS has set specific guidelines to help make sure that services can continue. At the same time, they are working to adhere to the guidelines established by the Centers for Disease Control and Prevention (CDC). 

As services begin reopening, USCIS will take the necessary precautions to keep everyone in USCIS facilities consistently safe. The key is to take certain steps that maintain the safety of workers and other occupants in these facilities. To help facilitate a transition to normality and enable in-person services, the USCIS has published in-depth guidelines for visitors.

Safety Guidelines for Gaining Entry into a USCIS Facility

To help protect everyone present in USCIS buildings, there are now strict guidelines in place for COVID-19 that visitors must follow before entering.

Individuals will be unable to enter a USCIS building if they:

  • Display any symptoms of COVID-19, which could include coughing, difficulty breathing, fever, fatigue, or any changes in taste or smell that individuals might notice.
  • Have been in close proximity to individuals who are suspected to have or are known to have the coronavirus within the last 14 days
  • Have received instructions to self-isolate or self-quarantine from public health authorities, health care providers, or government agencies over the last 14 days.
  • Are currently awaiting test results to confirm whether or not the individual is infected with COVID-19.

If they are allowed to enter, individuals are not permitted to enter the facility any earlier than 15 minutes before an appointment or 30 minutes for naturalization ceremonies. USCIS facilities will also provide hand sanitizer at various entry points as a safety precaution for all visitors

What Are the Guidelines for Masks?

To keep the public and the workforce safe from exposure to the coronavirus, the number-one precaution being taken for visitors is to make sure they wear proper face coverings. Every visitor over the age of 2 will need to wear them.

Specifically, visitors are required to wear face coverings that cover the nose and mouth, and they must not consist of any bandanas, exhaust valves, or neck gaiters. Individuals without proper face coverings will either be denied entry and will need to reschedule their appointment, or workers may be able to provide a replacement mask if available.

Other Guidelines

Upon entering a facility, there will be certain physical barriers and markings present to help guide visitors and ensure they adhere to social distancing guidelines. Also, workers may direct people to briefly remove their face coverings for identity confirmation and photographs.

To further help avoid contamination, USCIS also encourages visitors to bring their own blue or black ink pens.

Prior to entering, visitors may also need to answer certain health-related questions to ensure that they aren’t infected or contagious.

Bringing People to an Appointment or Naturalization Ceremony

To adhere to social distancing guidelines and limit the number of occupants in waiting rooms, visitors may only be accompanied by an immigration attorney, an interpreter, a parent or legal guardian if the applicant is a minor, immediate family members who appear as dependents on applications or interview notices, and assistants for disabled applicants.

At this time, guests are not permitted at naturalization ceremonies. The only individuals allowed at these ceremonies will be the individuals undergoing naturalization and assistants to disabled candidates. During the naturalization ceremony, candidates and any assistants attending will need to wear face coverings, regardless of whether the ceremony takes place in or outside of a USCIS facility.

What to Do if Sick Before the Appointment

If individuals are feeling sick at any point leading up to their scheduled appointment, it’s important to avoid attending and reschedule the appointment. Keep in mind that there isn’t a penalty for individuals who need to reschedule their appointments if they are ill, regardless of the ailment.