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On May 4, 2016, USCIS issued a 60-day notice proposing an increase in filing fees for various applications. There has not been a fee increase since 2010. The schedule of proposed fees are as follows:

• Form I-129 (H-1B, L-1, O-1, E-2, P-1, TN, R-1): Current fee = $325 Proposed fee = $460
• Form I-130 petitions for alien relatives: Current fee =  $420 Proposed fee = $535
• Form I-129F fiance(e) petitions: Current fee = $340 Proposed fee = $535
• Form I-140 petitions for alien workers:  Current fee = $580 Proposed fee = $700
• Form I-526 petitions by alien entrepreneurs: Current fee = $1,500 Proposed fee = $3,675
• Form I-485 adjustment of status:  Current fee = $985 + $85 biometrics  Proposed fee = $1140 + $85 biometrics

Form I-765 employment authorization:  Current fee = $380  Proposed fee = $410

Contact an immigration lawyer if you have any questions.

In April, the Supreme Court heard oral arguments in United States v. Texas, a case examining President Barack Obama’s programs deferring the deportation of millions of undocumented immigrants.

In November 2014 Obama announced the creation of the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program and the expansion of the 2012 Deferred Action for Childhood Arrivals (DACA) program, potentially affecting an estimated 4.7 million immigrants in the United States unlawfully. Both programs have been on hold since a federal judge in Texas issued an injunction preventing their implementation in February 2015 (an injunction is a judicial order restraining a party from beginning or continuing an action that could potentially threaten the legal right of another).

Under DACA, immigrants under 31 as of June 2012 without a lawful status that meet other several other guidelines can request deferred action which would allow them to receive a renewable two year work permit and exemption from deportation. Around 800,000 young immigrants have benefited from this program. President Obama’s 2014 action would eliminate the upper age cap for DACA and grant three year work permits and exemptions from deportation rather than two years.

DAPA would allow immigrants who have lived in the country illegally since 2010, have children who are American citizens or lawful permanent residents, and have generally stayed out of trouble (no felonies or significant misdemeanors) to apply for deferred action as well, which would give them three year work permits and exemption from deportation for that time.

The Issues

The Supreme Court looked at several issues in the case, but much of the case focused on whether Texas had standing–the right to challenge the action in court because of a specific current or future harm to the challenging party.

Texas argued that the state had standing to challenge the action due to the budget impact it would suffer if it had to give drivers’ licenses to possibly millions of undocumented immigrants newly granted the right to stay in the United States (Texas charges $24 for a license but says it costs almost $200 to process each application).

The government argued in response that the states do not have standing to sue the government over a federal deferred-action policy because Texas cannot show that it will be directly harmed by the policy, as the policy does not regulate states or require states to do anything.

This Court’s decision on this seemingly small procedural issue will have a big impact on future immigration policy. The case is complicated by the death of Justice Antonin Scalia in February, which left the Supreme Court with only eight members. If the Court ties 4-4 on a ruling, the ruling from the lower court stands. In this case, the Fifth Circuit Court of Appeals ruling would be affirmed, putting DAPA and the expanded DACA on hold potentially indefinitely.

The Court will issue its decision by the end of June. Whatever the Court decides, the decision will almost certainly provoke debate from both immigration reform advocates and opponents in the lead-up to the presidential election in November.

Beginning on May 10, 2016, F-1 students graduating with a U.S. bachelor’s or master’s degree in a STEM (Science, Technology, Engineering, Math) subject are eligible for 24-month OPT (Optional Practical Training). This is an increase from the duration, which provides for a 12-month initial OPT plus a 17-month extension. Applications submitted and approved prior to May 10, 2016 will be approved for 17 months, but any applications adjudicated after May 10, 2016 will automatically be granted 24 months. One of the immediate benefits of this increase is the ability for STEM graduates on OPT to have 2-3 attempts at getting an H-1B visa. Given that the number of H-1B petitions have exceeded the maximum number of 65,000 (20,000 for master’s cap) allowed by Congress, there have been lotteries for the past three years with the odds of having an H-1B petition selected at about 1 in 3, or 1 in 4. Click HERE to learn more about the new 24-month STEM OPT.  The lawyers at Maximilian Law Inc. are also available to answer questions you have on U.S. immigration law.

H-1B petitions must be submitted to the USCIS on April 1st. In the very likely event that the number of applications exceeds the 65,000 (plus 20,000 U.S. master’s cap) quota, the USCIS will draw from all application received from April 1st through the first 5 business days.

Many graduates will have completed the coursework towards their bachelor’s or post-graduate degree before April 1st, but will not have received their diploma because the graduation ceremony is not until June. The question is: Can these individuals still qualify for an H-1B? The answer is yes.

U.S. employers who intend to file an H-1B petition for a foreign worker on April 1st may still do so even if the worker has not graduated or received their diploma, so long as he/she has completed all of the coursework towards the degree. In these cases, the foreign worker should contact the school and ask for an official transcript as well as a letter from the school confirming that all coursework has been satisfactorily completed and that he/she is eligible for a bachelor’s/graduate degree.

While this may not be the ideal situation, at least the USCIS will have sufficient evidence that demonstrates that the beneficiary possesses the requisite education to qualify for an H-1B visa. At the very least, the USCIS could issue a request for evidence asking for further proof of meeting the education criteria – at which point the beneficiary will hopefully have an official transcript or the diploma.

Conclusion: So long as the coursework towards a bachelor’s or master’s degree has been completed by April 1st, an H-1B petition should meet the education criteria during USCIS adjudication.  Contact the immigration law firm of Maximilian Law Inc. if you have questions about the H-1B visa.

Every April 1st, the USCIS begin accepting petitions from U.S. employers who are looking to sponsor a foreign employee for an H-1B visa. With only 65,000 visas available (plus an additional 20,000 for beneficiaries with U.S. master’s degrees), the quota will likely be filled within the first 5 business days after April 1st. That means employers must be sure to have the petition finalized and ready for submission on March 30th.

So how early should an employer start preparing for an H-1B submission? In my experience, I always tell my clients to start the process as early as January or February. It often takes time to make sure that all H-1B criteria are met:

• Is the position considered a specialized occupation?
• Does the employee have the requisite degree?
• Will the employer be able to pay the prevailing wage?

Once the parameters for the position are determined, the employer has to file a Labor Condition Application. The employer must post the LCA for 10 days, and it may take a week or two for the LCA to be certified. Factor in the fact that some employers are not recognized by the Department of Labor, so a FEIN verification must be submitted in advance. This means that just the fist step of the H-1B application could take 3 weeks. After that, we have to prepare all the USCIS forms and appropriate supporting evidence. This means it could take 5-6 weeks from start to finish.

To throw a wrench into things, an employer doesn’t want to have the LCA certified too early. Otherwise, this would “eat” into the amount of days that the H-1B application could be approved for.

We have also been asked when is the absolute latest an employer can start preparing an H-1B petition to still make the April 1st submission date. Given the 10-day LCA posting and possible FEIN verification, I would say that March 10th would be a good “cut off” day – after which any H-1B petitions may not be finalized in time to make that year’s lottery.

For more information on filing an H-1B visa petition, please contact immigration attorney Cedric M. Shen at (310) 591-8200 or via email at: cedric[at]maxlawinc.com.