October Update: Visa Status Filing Dates Announced, USCIS Fee Hike Reminder

Update: Federal Judge Blocks USCIS Fee Increase

On Sept. 29, 2020, a federal judge for the U.S. District Court for the Northern District of California granted a motion for a preliminary injunction against USCIS to enjoin implementation of USCIS’s new fee schedule rule and to stay its Oct. 2, 2020 effective date.

Under the fee schedule rule, the filing fees for some of the most common types of nonimmigrant and immigrant petitions would have substantially increased, some by 83 percent. With the injunction in place, the change in filing fees will not go into effect while the case is pending. 

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On Sept. 24, 2020, the U.S. Department of State (DOS) released the October 2020 Visa Bulletin which indicates when immigrant visa applicants are eligible to file applications for adjustment of status with USCIS. The DOS issues a Visa Bulletin each month with cut-off dates based upon an applicant’s employment-based preference category and country of chargeability. Congress caps the number of green cards that may be issued each year. As a result, the number of immigrant visa applicants seeking to adjust status or, in other words, receive a green card, has exceeded the cap thus consistently creating a backlog, especially for Chinese and Indian nationals.

Oct. 1 marks the beginning of the new fiscal year for USCIS and as expected, the number of available employment-based visas has increased due to a significant drop in processing capacity attributed to COVID-19 related closures at consular posts and within USCIS service centers.

As a result, USCIS has stated on its website that applicants may use the “Dates for Filing” chart in the Bulletin when determining eligibility thus significantly advancing the filing eligibility for employment-based applicants in several categories, including for nationals of China and India. 

Dates for Filing

*Indicates advancement period.

Unlike prior months, the EB-3 preference category for China and India has advanced more rapidly than for the EB-2 preference category. This means that individuals and their employers could “downgrade” an applicant’s I-140, Immigrant Petition for Alien Worker from EB-2 to EB-3 in order to become eligible to concurrently file an application for adjustment of status with USCIS.

Increased Filing Fees

The October 2020 Visa Bulletin also coincides with an increase in filing fees for some of the most common type of filings, including nonimmigrant and adjustment of status and nonimmigrant (H, L, TN, O-1, etc.) petitions. 

On Aug. 3, 2020, the Department of Homeland Security (DHS) issued a final rule* that increases filing fees effective October 2, 2020 for certain immigration and naturalization petitions filed with USCIS. Of notable significance, the filing fee for nonimmigrant visa petitions will vary depending on the visa classification being requested (e.g. H, L, O, TN, etc.). USCIS has also announced that it will be releasing new I-129 forms for each of these different visa types. The overall cost for adjustment of status (Form I-485) petitions will also significantly increase. USCIS will no longer bundle the fee of Form I-485 with Form I-765 (Employment Authorization Document) and Form I-131 (Advance Parole/Travel Document). Applicants will be required to pay a separate fee for each of the three applications, which will total $2,270. The bundled fee was previously $1,140 for all three applications. 

Filing fees are as noted:

* To access the full list of fee changes, please see the Final Rule, starting on page 13. 

USCIS also changed the premium processing timeframe from 15 calendar days to 15 business days. The premium processing filing fee remains at $1,440 as set on Oct. 31, 2019.

To obtain more information, please contact the Barnes & Thornburg attorney with whom you work, or Tejas Shah at 312-214-5619 or tejas.shah@btlaw.com, or Mercedes Badia-Tavas at 312-214-8313 or mbadiatavas@btlaw.com, or Michael Durham at 574-237-1145 or m.durham@btlaw.com, Sarah Hawk at 404-264-4030 or sarah.hawk@btlaw.com, or Mayra Bruno at 312-214-4575 or mayra.bruno@btlaw.com. Assistance on drafting the alert was provided by law clerk, Mandira Sethi.

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