Johnstone Adams wishes you all very happy holiday season and new year!
Two new proposed immigration regulations would profoundly affect employers, international students, H-1B and L-1 visa holders, EB-5 investors, asylum seekers, and others. The first rule would make changes to the USCIS fee schedule. In this rule, DHS proposed to adjust USCIS fees by a weighted average increase of 21 percent, add new fees, and make other changes, including form changes and the introduction of several new forms. The second would make multiple changes to the regulations governing asylum applications and eligibility for employment authorization based on a pending asylum application. These new DHS proposed rules will place additional burdens on employers seeking to sponsor nonimmigrant and immigrant workers and those seeking asylum. More information is available via the follow links on the proposed fee rule and the proposed rule regarding asylum employment authorizations.
Border agents no longer have complete discretion to search your phone and computer at the border. They now need to have reasons for suspicion of unlawful intent before demanding to search electronics. On November 12, 2019, U.S. District Judge Denise Casper said there must be a reasonable suspicion that the devices contain contraband — such as child pornography or classified information — before the search. The ruling, however, did not go so far as to require warrants for searches of electronic devices, but the Judge concluded that the border search exception to the Fourth Amendment does not give CBP officers an unfettered ability to search electronic devices. Casper said she was requiring reasonable suspicion, rather than a warrant justified by probable cause, because travelers have a reduced expectation of privacy at the border and the government has an interest in maintaining “territorial integrity.”
The number of electronic device searches at U.S. ports of entry has recently increased significantly. Last year, CBP conducted more than 33,000 searches, almost four times the number from just three years prior. This new ruling is a major victory for privacy rights.
Great news for Polish nationals. Acting Secretary of Homeland Security Kevin K. McAleenan, in coordination with Secretary of State Mike Pompeo, designated Poland into the Visa Waiver Program (VWP). Effective November 11, 2019, Polish nationals may travel to the United States without a visa, using only their Polish passports and an approved ESTA. Poland joins thirty-eight countries currently participating in the Visa Waiver Program. The DHS announcement states, “This designation demonstrates the strong partnership and cooperation between the United States and Poland, its trusted partner. The Visa Waiver Program will expand cultural ties and strengthen the economy of both nations by encouraging tourism and business exchanges.”
On November 7, 2019, USCIS announced a Final Rule that requires employers seeking to submit petitions to employ H-1B workers to pay a registration fee of $10. The fee is non-refundable. The Final Rule will become effective on December 9, 2019, and will be in place for the fiscal year 2021 H-1B cap selection process. Further details on its implementation and the implementation of the new electronic registration system will be forthcoming from USCIS at a later date.
According to DHS briefing documents obtained by BuzzFeed News, USCIS is planning to publish proposed Federal regulations in January 2020 modifying the fee structure for certain immigration benefits. Most notably, USCIS is allegedly proposing to charge $50 for asylum applications and an unspecified additional amount for Deferred Action for Childhood Arrivals (DACA) renewals. Fees would also be added to asylum-based work authorization documents. In addition to the new fees, USCIS is purportedly going to further restrict the use of fee waivers.
These are but the latest tactics of the Trump Administration to make immigration inaccessible to a large swath of the population. Of note, the United States would become one of only four countries in the world to charge for asylum applications.