USCIS Proposes New H-1B Registration Fee

On September 4, 2019, USCIS published a Notice of Proposed Rulemaking that requires employers submitting cap-subject H-1B visa applications to register in advance and pay a $10.00 fee for each such registration.  The Notice also included screenshots that seem to indicate USCIS will accept debit, credit, or ACH.  The public may comment on the proposed rule for 30 days.

This rule is a follow-up to the January 31, 2019 final rule amending H-1B regulations to require employers to electronically register with USCIS in advance of the H-1B selection process. If an employer’s registration is selected, only then can it submit a full H-1B application.

At this time, USCIS has not yet announced whether the electronic filing system will be utilized for the upcoming H-1B filing season in April 2020.

U.S. Reaches Safe Third Country Agreement with Guatemala

As original reported in June, the United States has been exploring a safe third country agreement with Guatemala.  Such an agreement would prevent asylum-seekers from passing through Guatemala to the United States without first seeking asylum in Guatemala. At the time, though, it appeared that the deal had hit a snag and was unlikely to proceed.

Despite general skepticism of its feasibility given the political climate in Guatemala and legal rulings that prevent its president from signing, the United States announced on July 26, 2019, that it had, in fact, reached a safe third country agreement.  The agreement is expected to go into effect in August 2019.

Acting USCIS Director Attempts to Change Legal Standard for Asylum by Memo

On July 26, 2019, Acting USCIS Director Kenneth Cuccinelli issued a memorandum to USCIS asylum officers, who are charged with interviewing asylum applicants and determining the merits of their cases.  In this memo, he instructed the asylum officers to ask additional questions of the applicant in order to determine whether internal relocation within the applicant’s home country is “possible.”  Under the applicable regulation, an applicant need only establish that internal relocation is not “reasonable.”

There is a world of difference between relocation being reasonable and it being possible. The Administration continues to play fast and loose with the law when it comes to immigration, and in this case, it is clearly to the great detriment of asylum applicants, as the Administration intended.

USCIS Finding New Ways to Create Delays

The massive backlog of petitions filed with USCIS has been documented extensively and led to Congressional committee hearings and an investigation by the U.S. Government Accountability Office.  Despite these facts, USCIS is now finding new, creative ways to delay adjudicating petitions.

In March 2019, USCIS announced a revised Form I-539, Application to Extend/Change Nonimmigrant Status and published a new Form I-539A, Supplemental Information for Application to Extend/Change Nonimmigrant Status.  With these revisions came a new biometrics requirement for applicants.  Because it often takes three weeks to process biometrics, USCIS announced that it would no longer extend premium processing (i.e., processing in 15 days) to Form I-539s filed with Form I-129s, which are generally eligible for premium processing.  Customarily, if the two forms were filed together and premium processing was selected, both would be adjudicated within the 15-day processing window as a courtesy.  As a result of this new policy, though, Form I-539 applicants may be waiting for a decision considerably longer than I-129 applicants filing concurrently.

Facial Recognition Software Poses Threat to Undocumented Immigrants

On July 7, 2019, the Washington Post reported that FBI and ICE agents have been accessing state driver’s license databases with facial recognition software, enabling both to rifle through millions of photos without the consent or knowledge of those photographed. While this is certainly troubling, facial recognition software is also making inroads with CBP, TSA, and the Secret Service.  TSA, for instance, is running a pilot program whereby it uses the technology as a substitute for review of an individual’s passport and boarding pass.

While there are certainly concerns over the constitutionality of some of these uses of facial recognition technically, individuals who are not lawfully in the United States may be particularly impacted if they reside in states that issue photo identification to undocumented immigrants.  In such cases, the undocumented immigrant’s photo could be accessed and scanned by various federal agencies, including ICE.

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