Regardless of the visa application, calculating total fees for filings can be a hassle. But what many don’t realize is that an improperly calculated fee payment would result in rejection of the complete application thereby leading to a longer application process. This tedious process has left many with rejected applications due to citing and submitting the incorrect or incomplete total filing fee. To amend this, USCIS now offers a free Online Fee Calculator to assist those filing their forms through a USCIS agency lockbox facility.
From the Immigrant Petition for Aliens Worker (Form I-140) to Applications for Naturalization (Form N-400), applications and petitions for citizenship and immigration benefits require payments to fund processing costs. While a significant sum, these fees enable USCIS to operate as the service almost entirely relies on application and petition fees. Often these fees change to adjust to changing processing costs and inflation. Through the new online calculator, applicants and petitioners can find out the exact filing and biometric fees required for their particular application. The Online Fee Calculator is up to date, and reflects any recent adjustments to fees. The online calculator matches up-to-date filing fees with the forms selected by the drop down menu found on the website. By selecting your form, the fee calculator will either present you with a flat fee rate, or if you filing fee varies, prompt additional information to determine your category or age group. Those who wish to file concurrent forms can multiple form calculations to receive a total filing amount. However, the tool does not currently offer a feature to calculate fees for multiple individuals. Once users have responded to the questionnaire, the Online Fee Calculator will include biometric fees, if necessary, as well as the total fee amount. This total represents the amount that should be filed with applications and petitions submitted to USCIS.
Each year, USCIS processes millions of applications and petitions. Those which require fees are sometimes submitted with out-of-date and incorrect payments. Those applications are automatically rejected. For those filing at Lockbox facilities, checks, money orders, and credit card payments for applications may include the incorrect fee total. With the new Online Fee Calculator, applicants can rest assured that their fee payment is up-to-date to avoid rejections.
While many sections of the federal government remain operational, including the United States Citizenship and Immigration Service (USCIS), other offices remain unopened. As previously reported, entire visa programs, like the Immigrant Investor Visa (EB-5) and Deferred Action for Childhood Arrivals, are at risk of discontinuation. Besides programmatic immigration issues, several maintenance services are unavailable for employers and visa holders. In particular, the E-Verify website, and its included services, have been inaccessible since December 21stof 2018.
In an official statement, the online employment authorization webservice notes; “Due to the lapse in federal funding, this website will not be actively managed. This website was last updated on December 21, 2018 and will not be updated until after funding is enacted.” To offer further guidance, the website provides a longform explanation of discontinued services.
For employers, the shutdown restricts access to E-Verify enrollment, delaying access to vital employee information. Additionally, basic employer operations that utilize E-Verify, especially human resource operations involving foreign national employees, are suspended during the shutdown. To limit long-term issues, the “three-day rule,” which dictates that E-Verify cases must be created within the first three paid days of employment, is suspended for those cases impacted by the shutdown. However, I-9’s must be completed under the “three-day rule” while the government is shut down. Once the government reopens, E-Verify will provide guidance to employers to facilitate the appropriate procedures for creating new cases. Employers are explicitly instructed “not to take adverse action” against those employees impacted by the lapse in E-Verify.
During the shutdown, employees will not be able to resolve TNCs, or Tentative Nonconfirmation of information within the E-Verify employment authorization system. TNCs result when the information filed via E-Verify does not match data available to the Department of Homeland Security or the Social Security Administration. Deadlines to resolve TNCs will be extended by duration of the shutdown. Further guidance regarding TNC resolution deadlines will be made available at the end of the shutdown.
In the absence of congressional authorization, the EB-5 foreign investors visa program was set to end on December 21st of 2018. However, following the government shutdown that began on December 20th of 2018 and continues into the 2019, the United States Citizenship and Immigration Service (USCIS) announced that the future of the EB-5 program will remain pending until funding legislation passes in Congress. However, the shutdown will not drastically impact other application processes for visa benefits.
Impact on EB-5 Applications Prior to December 21st
USCIS notes that any Form I-924, Application for Regional Center Designation Under the Immigrant Investor Program, will not be accepted as of December 21st. Those Form I-924 applications still pending will remain on hold until funding is either allocated or denied to the EB-5 program. USCIS notes that it will continue to accept regional center-affiliated Form I-526s, Immigrant Petition by Alien Entrepreneur, and Forms I-485, Application to Register Permanent Residence or Adjust Status submitted before close of business on December 22nd. However, the aforementioned applications will remain on hold until the end of the government shutdown.
Additional Visas Impacted
As reported during the last government shutdown, most vital functions of the United States government will continue while the government is shutdown. In particular, the US Customs and Border Patrol (CBP) will continue to function at ports of entry. Therefore, foreign nationals need not cancel travel plans abroad during the shutdown. The US Citizenship and Immigration Service (USCIS) will additionally remain open during the shutdown. Thus, any applications or petitions that include fee processing, will continue to be processed through the shutdown (e.g. adjustment of status, etc.). Visa processing services provided by US consulates, and managed by the Department of State, will also continue while the government is shutdown. The Department of Labor, which received funding in September of 2018, will continue Labor Condition Application processing. Although these essential government agencies will remain open during the shutdown, it is unclear when the shutdown will end, and whether programs like the EB-5 visa program, will continue into 2019.
The Department of Homeland Security (DHS) has released a new proposed rule which would outline the ways in which the agency determines a foreign national is inadmissible due to risk of becoming a public charge. Foreign nationals who wish to enter the U.S. or adjust their immigration status must provide evidence of financial stability, and establish that they will not become a ‘public charge,’ or dependent on government assistance, during their stay. Public charge inadmissibility does not, however, currently apply to naturalization proceedings or other protected classes of nonimmigrants. The new proposal seeks to require foreign nationals seeking extensions of status or adjustment of status “to demonstrate that they have not received, are not currently receiving, nor are likely to receive, public benefits.” The new proposal seeks to more clearly define the term ‘public charge’ for the purpose of determining admissibility.
The proposed rule would change current standards for determining admissibility due to the risk of becoming a future public charge. Additionally, DHS would define the types of public benefits that make a foreign national subject to public charge inadmissibility while including a designated threshold of benefits allowed for all nonimmigrants receiving such benefits. DHS also seeks to make it more difficult for current foreign national public charges to gain approval for a change of status or extension of stay application. The rule would apply to all individuals seeking to adjust their status to that of a lawful permanent resident. However, USCIS notes that “lawful permanent residents who subsequently apply for naturalization would not be subject to inadmissibility determinations, including a public charge inadmissibility determination.”
Those seeking entrance as refugees, asylees, Afghans and Iraqis with special immigrant visas, nonimmigrant trafficking and crime victims, individuals applying under the Violence Against Women Act, and special immigrant juveniles would be excluded from inadmissibility based on likelihood of public charge. Those applicants with “financial assets, resources, and support of at least 250 percent of the Federal Poverty Guidelines” or those applicants with an income larger than 250 percent of the Federal Poverty Guidelines, are more likely to be excluded from inadmissibility on the ground of public charge status.
Last month, a federal suit brought forth new questions surrounding individual property rights at the U.S. border. Two months ago, an American woman filed a federal suit against the Department of Homeland Security after Customs and Border Patrol (CBP) agents seized her smartphone upon return to the United States and made copies of the data found on the device. Rejhane Lazoja, a Muslim-American woman, asked a federal judge to compel border officials to erase all data copied from her iPhone following the February seizure. On October 30th, Lazoja was granted her request when DHS settled the case by deleting all of Lazoja’s data collected by CBP. However, the lawsuit sheds new light on the continued uncertainty surrounding digital property rights at the border.
Unlike inside the U.S., CBP officers may search and seize property from individuals entering the country without a warrant. This “border doctrine” allows CBP officers to take property, including cellular devices, without approval from a judge. At the border, CBP agents may seize cellphones for an extended period of time, during which data is collected from the electronic device. In the case of Lazoja v. Nielson, the plaintiffs stated that the “seizure, retention, and any sharing of [Rejhane Lazoja’s] property without reasonable suspicion, probable cause, or a warrant have violated Ms. Lazoja’s rights under the Fourth Amendment of the U.S. Constitution.”
Although Lazoja received her cellphone 130 days after re-entering the U.S., DHS retained data collected from her device, including confidential correspondence with Lazoja’s attorneys. By retaining the American woman’s property for a period longer than 120 days, without a warrant or reasonable suspicion, the representatives for Ms. Lazoja argued that her Constitutional rights had been violated. Although the case was settled before adjudication, the problem surrounding data seizure, and retention, at the border remains. CBP maintains full discretion to seize and copy data from electronic devices belonging to individuals crossing the border, regardless of their citizenship status. As CBP agents become more strict under the direction of President Trump, there may be a rise in property and data seizures in the coming months.
USCIS has announced new changes for the validity period for the Form I-693, Report of Medical Examination and Vaccination Record. The new regulation will require applicants to present a Form I-693 that was signed by an approved civil surgeon no more than 60 days before the submission of their immigration benefits application. According to USCIS, the change in the validity period for Form I-693 will help to reduce delays caused by requests for updated medical examinations.
The Form I-693, Report of Medical Examination and Vaccination determines admissibility of an individual based public health related grounds for inadmissibility. Specifically, section 212(a)(1) of the Immigration and Nationality Act lists specific health related issues that make applicants inadmissible (e.g. threatening mental disorder, communicable diseases). In addition, the Form I-693 ensures that individuals seeking immigration benefits have necessary vaccinations (e.g. mumps, measles, rubella, polio, tetanus and diphtheria toxoids, pertussis, influenza type B and hepatitis B). If a civil surgeon finds that the applicant meets all health requirements, he or she will complete sections of the Form I-693 and issue their signed approval. From the date of signature, the form is valid for up to two years.
Although the Form I-693 will remain valid for a period of two years, applicants must now submit their immigration benefit application with a signed medical examination form no later than 60 days from the date of the civil surgeon’s signature. The narrowed period of submission will increase “operational efficiencies” in USCIS while reducing the volume of requests for updated Form I-693s. As processing times for certain immigration benefits continue to extend into periods greater than a year, requiring a newer examination record will reduce the likelihood of the medical examination form expiring during processing. However, the new change will put a greater burden on applicants to schedule medical examinations within a two-month window of the application filing date. Additionally, USCIS will maintain the discretion to request a new Form I-693 if there is suspicion that the applicant is inadmissible based on public health risk.
On September 11, 2018, the United States Customs and Immigration Service will adopt new guidelines for the issuance of Request for Evidence (RFE) and Notice of Intent to Deny (NOID). Through no change to the laws of legal immigration, these new guidelines present one of the greatest threats to legal immigration in recent history.
Overview of Changes
In a series of policy memorandums, USCIS gave notice of new guidance for adjudicating officers. This guidance allows adjudicators to deny a request for immigration benefits without issuing an RFE or NOID. Previously, USCIS required adjudicators to send notice to applicants who provided insufficient evidence for an application or petition (RFE & NOID). Without a barrier to outright denial, those applying for immigration benefits can now receive denials if adjudicators determine that there is insufficient evidence.
Who is at Risk?
All applicants, from applications for naturalization to applications filed under the Violence Against Women Act (VAWA), are at risk under these new guidelines. After September 11th, applicants will be at risk of outright denial of their application or petition. With full discretionary power, USCIS adjudicators will be unforgiving of even small errors in applications. Therefore, if a naturalization application is missing a single document of evidence, a USCIS adjudicator can now deny the application without sending a notice for additional information or allowing the applicant to provide an explanation for the missing evidence.
Impact of Denial
If an applicant is denied benefits, then the petitioner or applicant will have to resubmit their application. Meaning, each applicant must repay all immigration fees regardless if their current employment visa was compromised by the denial. However, this is the best case scenario considering further USCIS changes regarding Notices to Appear (NTA). Under this regulation, some applicants who receive outward denials will be required to appear before immigration court to face removal proceedings. The devastating impact of these policies will impact families and highly skilled professionals alike. As September 11thapproaches, all applicants for immigration benefits must be extremely thorough in their applications. If you require assistance with any of your applications, please feel free to schedule a consultation.
In most cases, the United States Customs and Immigration Service (USCIS) requires only non-U.S. citizens to report a change of address. However, if you are a U.S. citizen serving as a sponsor for a non-U.S. citizen, you may have to submit a Form I-865 to update your most recent address.
If you are a foreign national who is in the United states for a period of more than 30 days, or who is not an official government representative or diplomat for your country, you must report any change to your address within 10 days. Non-U.S. citizens can change their address online through an electronic Form AR-11. There, individuals with open or recently approved applications and petitions can amend their applications at the same time with the online change of address system. Although all non-U.S. citizens may file their Form AR-11 through the mail, the following must submit address changes through mail, not through the online portal nor through phone: Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant filed as VAWA self-petitioner; Form I-914, Application for T Nonimmigrant Status (“T visa”); Form I-918, Petition for U Nonimmigrant Status (“U visa”); Form I-765V, Application for Employment Authorization for Abused Nonimmigrant Spouse; and Form I-485, Application to Adjust status as an abused spouse under the Cuban Adjustment Act. Willful failure to notify USCIS of a change of address will result in a misdemeanor charge and could result in deportation proceedings. U.S. citizens, however, must file a separate notice of address change if they are a sponsor for a non-U.S. citizen.
If you are a sponsor for a non-citizen i.e. if any time in the past you have completed Form I-864, you will need to complete a Form I-865, Sponsor’s Notice of Change of Address, if your address changes while the sponsorship agreement is still in place. Sponsors, who are citizens of the United States, have up to 30 days to submit a signed Form I-865 to USCIS following the change in permanent address. Each sponsor must submit a separate Form I-865, regardless if they share the same address. In many cases, sponsors must submit multiple notices for each relocation while the sponsorship agreement remains in force, which can span several years. The sponsor will maintain an obligation to report a change of address until the sponsorship agreement is no longer in place (e.g. the sponsored immigrant becomes a U.S. citizen or the application is abandoned or void). Failure to report an address change may result in fines ranging from $250 to over $5,000. Upon submitting the Form I-865, sponsors may receive further correspondence from USCIS for further documentation confirming the change of address.
In the last couple of weeks, the buzz surrounding recent memos released from the United States Customs and Immigration Service (USCIS) have left many on edge. In such a short period of time, USCIS has made historic levels of change to immigration law. Now, with talk of NTAs, RFEs, and NOIDs those affected by recent changes may be confused and left behind as news continues to progress. In this article, we break down the potential consequences of a Notice to Appear, or NTA, and how USCIS’s new memo endowing all adjudicating officers with the power to freely issue NTAs impacts foreign workers who are legally in the United States.
What is a Notice to Appear (NTA)?
Recently, much of national debate has centered around one form of deportation: expedited removal. Such as in the case of family separation seen in the news, undocumented foreign nationals within 100 miles of the United States Border undergo removal proceedings without a hearing before an immigration judge. Unlike expedited removal, the issuance of an NTA is the first step of a longer, more judicial deportation process. If a foreign national is found to be removable from the United States, an official federal charging document is issued in the form of an NTA. The NTA is a formal notification document stating the beginning of formal federal court proceedings. Individuals who receive an NTA must appear before an immigration judge and have the opportunity to defend their eligibility for relief from deportation, either individually or through representation through an attorney. Following the issuance of the NTA, the appearance before the immigration judge serves as an opportunity for foreign nationals to argue why they should be allowed to remain in the United States. However, failure to persuade a judge results in an order of removal and, at minimum, bans a foreign national from re-entering the United states for five years. The individual is faced with the same consequences if he or she leaved the U.S. voluntarily (self-deportation) rather than attend the court hearing. To save on court fees and possible further penalties, many opt to voluntary leave the United States upon receiving a NTA by requesting voluntary departure through the Department of Homeland Security.
Impact of USCIS Memo
As previously reported, the June memo grants USCIS officials the ability to issue NTAs without referring cases to ICE for further investigation. Soon, a foreign national working legally in the United States is at risk of receiving an NTA, and consequently at risk of deportation, if USCIS denies their application. With issuance of NTAs on the rise, there could be a record level of deportations.
In the past few weeks, two memorandum out of the United States Customs and Immigration Service (USCIS) have upturned years of immigration procedures. In the first memo, USCIS announced a new direction to encourage USCIS officers to freely issue notices to appear (NTA), notably for cases in which a visa application is denied. In a separate memo, USCIS announced new measures to cut down on visa processing time, however with unorthodox methods. Starting September 11th, USCIS officers may automatically deny applications that have insufficient evidence without issuing a notice of intent to deny (NOID) or request for evidence (RFE). Together, these two memos mark what could be the biggest threat to legal immigration yet.
Threats to H-1B
As previously reported, increased scrutiny against H-1B visa applications spurred an unprecedented upsurge in RFE notices in 2017. Although RFE were not uncommon for H-1B applications, given the bulk of information required to prove both the qualifications of the employee and the employers need for the specialty hire, the upsurge was far from usual. With so many H-1B visas pending, there was an enormous backlog of H-1B applications. The memo release on July 13thwould cut down on issuance of RFEs and would instead automatically deny insufficient H-1B applications. Although the recent USCIS change aims to cut down on backlogs in visa application processing, the memo may spell a wave of unprecedented deportations.
Separately, the two above mentioned USCIS memos present only extreme inconveniences to visa applicants and employers. Together, these policies spell trouble for H-1B visa holders and all foreign nationals wishing to live and work in the United States. Under the new policies, H-1B applications, which are often delayed due to RFE’s, could be automatically denied for insufficient evidence, without notice to the employee or employer. Following denial from USCIS, even in circumstances in which the applications fell short due to clerical errors, these employees could receive a NTA and face deportation. Although extreme, these policies would allow a legal non-immigrant worker living in the United States awaiting their visa renewal to go from working in the United States to being sentenced to immediately depart the country.
Although the memo aimed to reduce the number of NOIDs and RFEs sent to visa applicants has yet to go into effect, the impact of the recent changes to USCIS procedures is likely to affect thousands. Combined, these two memos may spell catastrophe for legal immigration in the United States.