USCIS Premium Processing Fee Increase

USCIS announced that premium processing fees will increase effective February 26, 2024. USCIS will reject any request for premium processing postmarked on or after February 26th that does not include the updated fee.

All premium processing fees that are currently $2,500.00 will increase to $2,805.00. This covers all I-140 filings (EB-1, EB-2, etc.) and most I-129 filings (O-1, H-1B, etc.).

Although premium processing for the I-539 application to extend/change status was just introduced, USCIS is also increasing the filing fee from $1,750.00 to $1,965.

Although USCIS and other law firms are raising their rates due to inflation, in order to help our clients, we are keeping our NIW attorney fees the same as they have been for the past several years.

January Visa Bulletin

The January Visa Bulletin was just released. The good news is that most priority dates have advanced.

The biggest change was under the EB-1 category for Indian Nationals. The Dates For Filing moved from July 1, 2019 to January 1, 2021. The Final Action Date moved from January 1, 2017 to September 1, 2020.

The EB-1 dates also progressed forward for China. The Dates For Filing moved from August 1, 2022 to January 1, 2023. The Final Action Date moved from February 15, 2022 to July 1, 2022.

Under the EB-2 category the priority dates for all countries except China and India made marginal gains. The Dates For Filing moved from January 1, 2023 to February 15, 2023. The Final Action Date moved from July 15, 2022 to November 1, 2022.

The EB-2 Dates For Filing for China moved from January 1, 2020 to June 1, 2020 and the Final Action Date moved from October, 2019 to January 1, 2020.

For India the EB-2 Dates for Filing remained the same at May 15, 2012. The Final Action Dates moved slightly from January 1, 2012 to March 1, 2012.

Hopefully the USCIS will continue to push the priority dates forward.

EB-1A, EB-1B, and O-1 Options

In addition to EB-2 NIW petitions, our firm has had great success over the years in filing EB-1A, EB-1B, and O-1 cases. Due to retrogression, many of our clients who have approved I-140s under the EB-2 category are now considering the extraordinary ability options. Some examples of EB-1A approvals we have had very recently are a Business Sustainability Manager for a leading fashion company, a Food Scientist developing alternative protein foods, a Computer Scientist specializing in Natural Language Processing, a Research Assistant Professor in Biological Sciences, a Postdoc conducting research in the emerging field of the Internet of Things, and a Test Pilot.   

With the updated adjudication guidelines, the chances of success for an EB-1A, EB-1B, and O-1 have gotten much better for persons working in a STEM field. If you are interested in pursuing an EB-1A, EB-1B, or O-1 please let us know and we will be happy to review your case.

October Priority Dates Released

The Visa Bulletin for October was just released. It appears that retrogression will continue for the EB-2 NIW. While we are extremely disappointed that priority dates did not become current for the EB-2 category, the good news is that USCIS has designated the “Dates For Filing” chart to be used for October.

Under the “Dates For Filing” chart, the EB-2 priority dates for all countries other than China and India will move considerably from July 1, 2022 to January 1, 2023. For China the EB-2 priority dates advance from July 8, 2019 to January 1, 2020. India improves from January 1, 2011 to May 15, 2012.

Under EB-1 priority dates improved significantly for India. Under the “Dates For Filing” chart India moved from January 1, 2012 to January 1, 2019. The EB-1 priority date for China improved slightly from February 1, 2022 to August 1, 2022. For all other countries the priority date under the EB-1 category is once again current.

While the news is not as bad as it could have been had USCIS continued to use the “Final Action Dates” chart, it is now apparent that priority dates under the EB-2 category will remain retrogressed for all countries for the foreseeable future. With this in mind it is imperative that anyone interested in obtaining permanent residence through an EB-2 NIW file their case as early as is feasible to obtain their priority date.

We welcome any inquiries regarding the filing of your EB-1, EB-2 or Adjustment of Status.

August 2023 Priority Dates – Important Changes

There were some important changes in the Visa Bulletin setting out August 2023 priority dates.

EB-1 Update

The main change in priority dates is the retrogression of the EB-1 category. The EB-1 category priority date of China remains unchanged at February 1, 2022, however, the priority date for India has retrogressed by over 10 years from February 1, 2022, to January 1, 2012. Also, the priority date for all other countries has been retrogressed from Current to August 1, 2023.

EB-1 India Retrogression

The retrogression for India is shocking. Given this change, it is all the more important for qualified persons from India to proceed with an NIW and get their priority date established. Even before this significant change, it was advisable for individuals from India to file an NIW, get their priority date, continue to strengthen their case, and file for the EB-1 once the priority date from the EB-2 was getting close to current for the EB-1 category such that the EB-2 priority date could be ported over. We have worked with many Indian nationals to obtain an NIW and continued to work with them and advise them through building a stronger EB-1. This has proved to be very beneficial as many of our clients were able to immediately file for an adjustment of status upon getting their EB-1 approval notice using their NIW priority date.

EB-2 Update

The good news in the August Visa Bulletin is that for all countries (other than China and India) the priority dates under the EB-2 category progressed and moved forward from February 15, 2022 to April 1, 2022. It is a very encouraging sign that the EB-2 priority dates are moving in the right direction. We are hopeful that when the October Visa Bulletin comes out in September that the priority dates for the EB-2 will make a significant move forward. We recommend that persons with approved and pending I-140s begin the process of preparing for their adjustment of status as there will likely be a significant influx of applications filed in October, and as happened last year, the priority date could retrogress again in November or December. While we expect the AOS window to open in October we anticipate that it won’t stay open long.

USCIS to allow I-765 EAD with an approved I-140

USCIS to allow I-765 EAD with an approved I-140 due to I-485 Retrogression. USCIS just issued a Policy Alert that now allows for an I-765 EAD if the applicant has an approved I-140 even if the I-485 priority date is not current. This is an interesting development and that will allow certain individuals to continue to reside and work in the U.S. However, what appears to be a very promising new development, has significant restrictions and ultimately will be of little value to very few people.

The USCIS Policy Manual was updated with the newly added Chapter 3 (which had been previously reserved) to address the Compelling Circumstances Employment Authorization.

To qualify under this new policy there are several prerequisites. To qualify for a Compelling Circumstance EAD the applicant must first be the beneficiary of an approved I-140. In addition the applicant must be in valid status and hold an E-3, H-1B, H-1B1, O-1, or L-1. Given this requirement the practical application of the Compelling Circumstance EAD becomes extremely limited. For example an individual who already has an H-1B and an approved I-140 is not subject to the six year limitation and can stay on an H-1B while waiting for their priority date. An individual on an O-1 can renew the O-1 indefinitely and would likely not be in a position to need an Compelling Circumstance EAD.

Additionally, the Compelling Circumstance EAD does not provide any lawful status to the holder, it simply authorizes them to remain in the U.S. to work without accruing unlawful status. This means that the beneficiary will not be able to adjust status, because they will have no status to adjust from. It also means that they will not be able to travel as they will have no status upon which to be admitted upon their return to the United States. In order to obtain a green card once their priority date becomes current they will have to do so through Consular Processing.

There may be rare instances where a Compelling Circumstance EAD is necessary and in that event the beneficiary will need to set forth a persuasive argument with supporting evidence that they are deserving of a Compelling Circumstance EAD. USCIS has provided the following examples:

  • Serious illness/disability: The principal applicant or their dependent faces a serious illness/disability that substantially changes employment circumstances, or reduces their ability to continue previously approved employment.
  • Employer dispute/retaliation: The principal applicant is involved in a dispute regarding their employer’s illegal or abusive conduct, and the employer retaliated against them.
  • Substantial harm to the applicant: The principal applicant cannot extend or otherwise maintain status in a timely manner, or obtain another nonimmigrant status, and would suffer some kind of substantial harm as a result (financial or otherwise).
  • Significant disruption to the employer: The principal applicant’s departure would cause the employer substantial disruption due to the applicant’s knowledge or experience.

This is not an exhaustive list and USCIS intended that there be flexibility in making a determination of compelling circumstance. “DHS did not establish a bright-line definition because such a definition could limit DHS’s flexibility to recognize the various circumstances that could be considered compelling.”

If the beneficiary qualifies for a Compelling Circumstance EAD, the new policy additionally allows for the dependents of the beneficiary to obtain an EAD as well.

If you feel a Compelling Circumstance EAD is something that may be of benefit to you, please feel free to contact us for more detailed information.

USCIS Premium Processing Expansion

WHAT HAPPENED:

USCIS announced today, June 12, 2023, that they will be expanding premium processing for applicants filing Form I-539, Application to Extend/Change Nonimmigrant Status, and requesting a change of status to F-1, F-2, M-1, M-2, J-1, or J-2 nonimmigrant status. USCIS will also make the online filing of Form I-907, Request for Premium Processing Service, available for these applicants. This expansion will occur in phases:

  • Starting TOMORROW (6/13): USCIS will accept Form I-907 requests (paper or online versions) for individuals seeking a change of status to F-1, F-2, M-1, M-2, J-1, or J-2 status, who already have a PENDING Form I-539.
  • Starting IN TWO WEEKS (6/26): USCIS will accept Form I-907 requests (paper or online version) for individuals seeking a change of status to F-1, F-2, M-1, M-2, J-1, or J-2 status when filed WITH Form I-539.

This phase will be available only for change of status requests and will NOT be available for individuals who are seeking an extension of stay in M-1 or M-2 status. Additionally, even after submitting Form I-907 with the filing fee of $1,750, USCIS will NOT upgrade to premium processing until after the applicant has submitted their biometrics.

WHAT IT MEANS:

This is a positive development for students and exchange visitors, as it allows them to obtain the necessary documentation and authorization to study or work in the U.S. more quickly than before. Applying for premium processing in these cases GUARANTEES that, once all prerequisites have been met, USCIS will take adjudicative action on the case within 30 calendar days. USCIS will hopefully continue this trend of expansion in premium processing, as it speeds up processing time for applicants and enhances efficiency.

EB-2 Retrogression

USCIS just released the Visa Bulletin for April 2023. The Final Action Dates are to be used for the April Visa Bulletin. Under the Final Action Dates, the EB-2 priority dates for all countries have retrogressed. The EB-1 priority dates for China and India have once again retrogressed.

The EB-2 priority dates for all countries other than China and India have retrogressed from December 1, 2022 to July 1, 2022. Meaning if your I-140 was filed after July 1, 2022, starting April 1, 2023 you will no longer be able to file an adjustment of status until such time as the priority dates move forward in the future. We anticipate based on what limited information is available that priority dates won’t become current under EB-2 until the beginning of the new fiscal year in October.

The EB-2 priority dates for China have changed from July 18, 2019 to June 18, 2019 and India has gone backward from May 1, 2012 to January 1, 2011

The EB-1 priority dates for China and India both retrogressed from June 1, 2022 to February 1, 2022. The EB-1 priority dates for all other countries remain current.

For persons who have an EB-2 I-140 pending that was filed between July 1 and December 1, 2022 you only have a few days to get everything prepared and filed. You do not have to provide the I-693 medical exam when you file and can provide it later, which will save some time and allow you to get the I-485 timely filed.

If you are on a J-1, an F-1, or OPT you need to carefully consider your timeline with respect to filing the I-485 as it could negatively impact your ability to obtain or renew your status or obtain work authorization. For those of you whose status will expire between now and October, you should seriously consider filing your adjustment of status now.

USCIS Announces Premium Processing for Certain F-1 Students

USCIS continues to implement new procedures that ensure increased efficiency. Beginning March 6th, USCIS will accept Form I-907 requests for certain F-1 students who already have a pending Form I-765 if they fall under one of the following categories: pre-completion Optional Practical Training (OPT); post-completion OPT; and 24-month extension of OPT for STEM students. Beginning April 3rd, USCIS will accept Form I-907 requests for F-1 students in the previous categories when filed along with Form I-765. Additionally, online filing of Form I-907, the Request for Premium Processing Service, will now also be made available to F-1 students in these categories. The availability of premium processing for F-1 students in these categories, as well as the convenience of online filing, will reduce backlog and streamline the process for students.

NIW Premium Processing Now Available

USCIS has just announced that it is implementing the final phase of the premium processing expansion for EB-2 NIW I-140 petitions. Effective January 30, 2023 a new NIW can be filed with premium processing. If you have a pending NIW petition you can request premium processing, regardless of when your case was filed.

Until the EB-2 category for adjustment of status becomes current again, in most cases, it probably doesn’t make sense to file a new NIW with premium processing. However, NIW petitions filed prior to December 1, 2022 are current for adjustment of status purposes and may benefit from premium processing depending on individual circumstances.

If you are interested in pursuing premium processing or are uncertain as to whether it makes sense to do so, please feel free to contact us.