Month: August 2020

Department of State COVID-Related Guidance on Student Visas 

On March 9, 2020, due to the COVID-19 pandemic, ICE’s Student and Exchange Visitor Program (SEVP) instituted a temporary exemption regarding the online study policy for the 2020 spring and summer semesters. This policy permitted F and M students to take more online courses than normally allowed for purposes of maintaining a full course of study to maintain their F-1 and M-1 nonimmigrant status during the COVID-19 emergency. 

Thereafter, on July 6, 2020, SEVP announced that international students could not take a full online course load from schools operating entirely online and remain in lawful F-1 status in the United States. On July 14, 2020, as a result of litigation, DHS agreed to fully rescind the July 6, 2020 ICE guidance, July 7, 2020 Frequently Asked Questions and all implementing guidance, leaving the March 2020 Guidance as the status quo. 

The current policy: Nonimmigrant students who were actively enrolled at a U.S. school on March 9, 2020 and are otherwise complying with the terms of their nonimmigrant status may comply with the March 2020 guidance and thereby be exempted to take online instruction. Nonimmigrant students in ‘new’ or ‘initial’ status after March 9 will not be able to enter the U.S. to enroll in a U.S. school as a nonimmigrant student for the fall term to pursue a full course of study that is 100% online. Additionally, designated school officials should not issue a Form I-20 to a nonimmigrant student in new or initial status who is outside of the U.S. and plans to take classes at an SEVP-certified educational institution fully online.

Contact Poarch Thompson Law if you have questions about how these policies affect your enrollment.

The Department of State issued recent Frequently Asked Questions (FAQs) that are available on their website at: DOS Guidance for Students 2020 (FAQs). Check for updates to this policy. Content of the FAQs current through August 11, 2020 is included below:

1. Do students at universities doing hybrid virtual / in person programs need to obtain a new I-20 form?

Student visa applicants should bring their latest I-20 form (Certificate of Eligibility) issued by their university to their visa interview.  International students must obtain the appropriate visa before traveling, and may still be subject to visa processing and travel restrictions due to COVID-19.  Students should check with the local U.S. embassy or consulate for information specific to their country.

2. Do students who already have valid visas but are outside of the United States need a new visa before they attempt to travel to the United States?

No, students with valid visas do not need to apply for a new visa before traveling to the United States to resume their studies.  However, students may still be subject to travel restrictions due to COVID-19.  Students should check with the local U.S. embassy or consulate for information specific to their country.

3. Will a student enrolling for the first time in Fall 2020 (i.e. the student was not enrolled as of March 9, 2020) qualify for a student visa if their coursework is 100% online?

Only students who have a valid I-20 form (Certificate of Eligibility) issued by their university may qualify for an F or M student visa.  Students and the schools that admit them should follow SEVP guidance.  For questions about compliance with SEVP guidance and SEVIS, we refer you to ICE.  Their website is here: https://www.ice.gov/coronavirus.

International students must obtain the appropriate visa before traveling, and may still be subject to visa processing and travel restrictions due to COVID-19.  Students should check with the local U.S. embassy or consulate for information specific to their country.

4. Is global visa processing still suspended? How will students make it to campus on time for the fall semester if visa services are suspended in so many locations?

U.S. embassies and consulates recently began a phased resumption of routine visa services.  The resumption of routine services is on a post-by-post basis, in accordance with the State Department’s Diplomacy Strong framework for safely returning our workforce to Department facilities. 

Student visas are a high priority, and we will make every effort to assist student visa applicants in a timely fashion, while keeping our staff and customers safe. 

Applicants with an urgent matter who need to travel immediately should follow the guidance provided on their nearest embassy or consulate’s website to request an emergency appointment.

Practitioners nationally have reported significant delays in receiving receipt notices form USCIS service centers after properly filing applications. While the canceled check sent with the application may provide evidence of receipt and a possible file number, it is critical to be able to demonstrate when the application was mailed and received by using some form of return receipt or delivery confirmation. 

Currently, the delays are affecting Form I-751, Petitions to Remove Conditions (filed two years after the green card issued in a marriage case in which the individuals were married less than two years at the time of adjudication) and Form I-589 for asylum. 

Poarch Thompson Law will keep you updated on the latest developments in U.S. immigration law. 

As we already published, USCIS published a Final Rule on August 3 significantly altering certain commonly used immigration applications 

Key takeaways from the final rule include (but are not limited to):

Adjustment of Status – Family & Employment. The fees for adjustment of status, a commonly used application for family and employment based green cards, effectively doubled, because USCIS unbundled the fees for work authorization (I-765, effective October 2, the fee will be $550) and travel authorization (I-131, effective October 1, the fee will be $590) resulting in a total cost for the three applications of $2270, including biometrics. Previously, when bundled, the fee was $1225 (including previous biometrics fee of $85). 

• Adjustment of Status for Children Under 14. Moreover, the final rule removes the reduced Form I-485 filing fee for children under the age of 14 filing with a parent. A standard Form I-485 fee of $1,130 will apply to all applicants. It also requires separate fees for Forms I-765 and I-131 for work and travel authorization.
• Provisional Waivers. If a waiver is required to forgive unlawful presence, that fee has changed from $630 to $960.

• Other Waivers. The fee for waivers of other grounds of inadmissibility has changed from $930 rto $1010 (I-601) and $930 to $1050 (I-212).

U Visa Adjustment of Status. Additionally, U Visa Adjustment applicants will pay a fee of $1680 including work authorization. If they require a waiver of unlawful presence, the waiver application will now be $1400.

Asylum Applications & Asylum Adjustment of Status. The final rule establishes a $50 filing fee for applications for asylum (Form I-589) which, if paid and asylum is granted, will result in a $50 reduction in the fee for adjustment of status (Form I-485). 

Employment-Based Nonimmigrant Petitions. The new fee schedule creates separate fees and forms for each visa classification filed on Form I-129, with fees increasing as much as 75% for an L-1 petition. Fees that are expected to increase include: 

*These fees do not reflect changes where applicable to ACWIA / Fraud Prevention Fees. 

Application for Employment Authorization. For initial applications or renewals, USCIS will increase in fee from $410 to $550. For asylum applicants for work authorization, TPS applicants, and applicants for certain benefits from EOIR, USCIS will also charge a $30 fee for biometrics.

Naturalization. The filing fee for a Form N-400 will increase 83% from to $640 to $1,170. The final rule eliminates the reduced Form N-400 fee option for certain applicants.

Premium Processing. The final rule lengthens the time frame for USCIS to take an adjudicative action on petitions filed with a request for premium processing from 15 calendar days to 15 business days.

Fee Waivers. The availability of fee waivers has been significantly limited by USCIS. We will be contacting those clients who will be affected by this rule directly.

Poarch Thompson advises that clients act quickly to complete pending matters to ensure that their filings can be submitted prior to the fee increase on October 2, 2020.

On August 3, 2020, USCIS published a Final Rule altering the USCIS fee schedule by a weighted average increase of 20 percent, including adding a new fee for asylum applications, establishing multiple fees for nonimmigrant worker petitions, and limiting the number of beneficiaries for certain forms. The rule also removes certain fee exemptions, changes fee waiver requirements, alters premium processing time limits, and modifies certain intercountry adoption processing. 

Poarch Thompson advises that clients act quickly to complete pending matters to ensure that their filings can be submitted prior to the fee increase on October 2, 2020.

Additionally, USCIS will post new and revised forms online 30 days before the new rule goes into effect. These forms include:

• Form I-129, Petition for a Nonimmigrant Worker;
• Form I-600/I-600A, Supplement 3, Request for Action on Approved Form I-600/I-600A;
• Form I-765, Application for Employment Authorization; and
• Form I-912, Request for a Fee Waiver.

USCIS will accept both new and previous versions of the forms for a 60 day grace period as long as payment of the new, correct fees accompanies the forms. 

The Migration Policy Institute recently issued a report on how the anticipated USCIS furlough of more the 70% of its workers, scheduled to commence August 30, 2020, will impact current immigration processing. (See Impending USCIS Furloughs Will Contribute to Historic Drop in US Immigration Levels). 

The Background. Late in July, USCIS agreed to postpone the furloughs of more than 13,000 USCIS employees from August 3 until August 31. The $1.2 billion emergency funding request made by USCIS to Congress in May 2020 was to sustain the agency through the end of the calendar year (December 2020), not just the fiscal year (October 2020). USCIS based their request on the extremely low receipts they received at the beginning of the COVID pandemic and assumed that receipts would remain steady at that low rate through the end of the fiscal year. However, their calculations were wrong and receipts have been higher than predicted. While the agency may have surplus for the fiscal year, they anticipate a shortfall for the calendar year of around 8%. 

Anticipated Impact. The anticipated agency furloughs will increase current COVID delays and effectively halt U.S. immigration, negatively impacting families, U.S. businesses, educational institutions, medical facilities, and churches.

The furlough would effectively shut USCIS down, resulting in even more egregious delays in naturalization filings, immigrant visa filings, non-immigrant visa filings, changes of status applications, and other benefits. 

According to the Migration Policy Institute, “for each month the USCIS furlough lasts, 75,000 applications for various immigration benefits will not be processed.” Migration Information Source (Migration Policy Institute): Impending USCIS Furloughs Will Contribute to a Historic Drop in U.S. Immigration Levels – July 28, 2020. 

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On July 29, 2020, the U.S. District Court for the Southern District of New York enjoined the government from enforcing, applying, implementing, or treating as effective, the USCIS Final Rule on Inadmissibility on Public Charge Grounds (84 FR 41292, 8/14/19) during the COVID-19 pandemic. The same injunction applies to the Department of State’s revision of the Foreign Affairs Manual (see DOS Interim Final Rule on Visa Ineligibility on Public Charge Grounds (84 FR 54996, 10/11/19)

The court also issued a separate order granting an injunction that enjoins the government from implementing, or taking any actions to enforce or apply, the 2018 FAM Revisions, the DOS Interim Final Rule on Visa Ineligibility on Public Charge Grounds (84 FR 54996, 10/11/19), or the President’s October 4, 2019 Proclamation, Suspension of Entry of Immigrants Who Will Financially Burden the United States Healthcare System in Order to Protect the Availability of Healthcare Benefits for Americans (84 FR 53991, 10/9/19) during the COVID-19 pandemic.

On July 31, 2020, USCIS acknowledged that as long as the July 29,2020, SDNY decision is in effect, “USCIS will apply the 1999 public charge guidance that was in place before the Public Charge Rule was implemented on Feb. 24, 2020.”

This change applies to any application or petition for extension of nonimmigrant stay or change of nonimmigrant status on or after July 29, 2020, consistent with regulations in place before the Public Charge Rule was implemented.

The court’s injunctions are nationwide. 

USCIS will not consider any information provided by an applicant or petitioner that relates to the Public Charge Rule, including information provided on the Form I-944, or information on the receipt of public benefits in Part 5 on Form I-539, Part 3 on Form I-539A or Part 6 on Form I-129. Applicants and petitioners whose applications or petitions are postmarked on or after July 29, 2020, should not include the Form I-944 or provide information about the receipt of public benefits on Form I-485, Form I-129, or Form I-539/I-539A.