After Court Halted the Oct 2 USCIS Final Rule fee hike, Congress has approved a huge Premium Processing (I-907) fee increase and expansion, which also includes fees for new categories: I-765 (EAD), I-140(NIW), and Some I-539 (Change/Extend Status)
To recover operational costs and generate revenue, the U.S. Citizenship and Immigration Services (USCIS) proposed a new fee schedule that got implemented starting Oct 2, 2020. For immigrants and their employers, the new rule has some good news and bad news. The good news is that more applicant types are approved for USCIS premium processing. But the bad news is that the fee for express processing has increased for all applicant types.
Premium Processing
“Premium processing provides expedited processing for Form I-129, Petition for Nonimmigrant Worker, and Form I-140, Immigrant Petition for Alien Worker” (USCIS). The USCIS requires people looking for premium processing to sign form I-907. Petitioners can file the form with their form I-129 or I-140 or they can also file the I-907 later.
The processing time for the application used to be 15 calendar days, starting from the day USCIS receives the application. And, if more information was needed from the applicant, a new 15-day period would start when the responses were received. The new proposed period blocked by the court was 15 business days, which would have increased processing times.
Implementation
The premium fees and their expansion was signed into law by Donald Trump on October 1, 2020, as the Emergency Stopgap USCIS Stabilization Act. According to the act, the new USCIS premium processing fee for the majority of applicant types is $2500.
Two exceptions to these rules are the H-2B (Temporary Non-Agricultural Workers) and R-1 (Religious Workers) — the fee for these categories is set at $1500. The effective date of the final rule was October 2, but it would have taken the USCIS multiple weeks before they could start accepting requests for the expanded categories.
The categories that are now part of the premium processing for employment-based applications include employment authorization (I-765) and change or extension of status by dependents of certain visa beneficiaries, including H-1B. In the case of immigration benefits for the new premium processing services, the fee for processing will be calculated with a detailed method.
Here is a breakdown of the new USCIS premium processing time and fees.
I-129: The fee does not exceed $2500 and the processing time is 15 calendar days for H-1B, H-2B, E-1/E-2, L-1A/L-1B, O-1, P-1, and TN. The fee is $1500 and the processing time is 15 calendar days for H-2B and R-1.
I-140: The new fee is $2500 and the processing time is 15 calendar days for E-B1A, E-B1B, and PERM-based E-B2/E-B3. The fee is not in excess of $2500 and the processing time is 45 days for B-B1C and EB2.
1-539: E, F-1, H, J-1, L, M-1, O, P, and R all have a processing time of 30 days and a fee that is not more than $1750.
I-765: The EAD is capped at $1500 and the processing time is 30 days.
Other Changes
The USCIS premium processing fees were one part of the new fees. The USCIS proposed an increase in fees for a variety of applicant types, the Final rule, including H-1B and L visa, and fee waiver restrictions.
It is important to note that an increase in the revenue would not have affected the backlog of cases or the processing times. “USCIS anticipates having insufficient resources to process its projected workload. USCIS estimates that it will take several years before USCIS backlogs decrease measurably,” as mentioned in the proposed rule.
Court Ruling
The implementation of the other changes was dealt a blow last week when a federal judge paused the new USCIS fee rule before it became effective, reported Forbes. The Plaintiffs argued that the new rule will have a negative impact on low-income immigrants.
The court agreed with the Plaintiffs’ argument that it is not fair to compare the final rule with the data following previous fee hikes because this rule “combines increases with a correspondent decrease in the ability to obtain a waiver for the fees.”
Granted the USCIS will struggle to maintain its current workforce with its current budget, but – like the consistent fee hikes in the past few years have shown – the solution may be something other than increasing fees.
The increased burden on low-income individuals not only affects their ability to get expedited services but may prove counterproductive. The solution may be in changing the USCIS structure to be only partially funded by fees.
Richard Herman is a nationally renowned immigration lawyer, author, and activist. He has dedicated his life to advocating for immigrants and helping change the conversation on immigration. He is the founder of the Herman Legal Group, an immigration law firm launched in 1995 and recognized in U.S. World News & Report’s “Best Law Firms in America.”
He is the co-author of the acclaimed book, Immigrant, Inc. —Why Immigrant Entrepreneurs Are Driving the New Economy (John Wiley & Sons, 2009). Richard’s poignant commentary has been sought out by many national media outlets, including The New York Times, USA Today, BusinessWeek, Forbes, FOX News (The O’Reilly Factor), National Public Radio, Inc., National Lawyers Weekly, PC World, Computerworld, CIO, TechCrunch, Washington Times, San Francisco Chronicle and InformationWeek.
Amajor difficulty for anyone with a B-1 or B-2 visa who wants to change their status to F-1 status is that – due to the length of time it takes for the USCIS to consider the change request, the SEVP institution which approved the course of study may “defer” that start date.
Applicants seeking to change their status to F-1 must have approved nonimmigrant status (such as B-1 or B-2 status) which extends to, at least, 30 days before the school’s start date and the F or M change request must be approved before that 30 day period.
An Example
If for example, a student has received approval from the school to start school on September 1 of a school year/calendar year, the student’s current nonimmigrant visa must authorize his/her stay in the United States to August 2, of that calendar year.
If a student files for approval to change from B-1/B-2 to F-1 status on their current B-1/B-2 visa then they can begin their studies if:
- Their current B-1/B-2 status is valid beyond August 2, of that calendar year – provided that:
- The F-1 request is also approved before August 2
- The start date is not deferred until the next term – for example, January 1 of the following year.
- Their current B-1/B-2 status is not valid beyond August 2, of that calendar year. The student then files and is approved for an extension of their B-1/B-2 status to the August 2 date or a later date. This extension process is known as “bridging the gap.”
- The F-1 request is also approved before August 2
- The start date is not deferred until the next term – for example, January 1 of the following year.
Why delays in F-1 change request processing and changes in enrollment start dates create complex problems for nonimmigrant visa holders
Unfortunately, there is a major Catch-22 in the student enrollment process and a change to the F-1 status process. That Catch-22 is that the school may decide to “defer” the student’s enrollment date to the following term (such as the January 1 of the following year date). If the enrollment date is deferred, then the 30-day limit is deferred (in the case of the example to about December 2).
The deferment date means a student who didn’t need to bridge the gap – may now need to bridge the gap. This raises, at least, two complications:
1. The student may not learn of the deferral date in a timely manner. The Designated School Official (DSO) is often boxed in too. They rely on USCIS to make a timely decision. When approvals take 5 months or more, then the SEVP approved school is likely to defer the date. There is often a gap between the date the deferral postponement is made – and the date the student is notified he/she must file for a B-1 or B-2 extension.
2. The change request (from B-1 or B-2 to F) status may take months or even up to a year. The uncertainty of the decision date makes it extra difficult to know if the appliance needs to “bridge the gap” by requesting an extension.
Currently, experienced visa lawyers are arguing for some degree of fairness – where it is beyond the control of the student to file an extension request (due to a DSO deferral) in a timely manner.
Call Herman Legal Group at +1-216-696-6170 or complete our contact form to speak with us about what steps need to be taken to bridge the gap of your B-1 or B-2 nonimmigrant visa while waiting for approval of your F or M nonimmigrant visa.
The US Citizenship and Immigration Services Agency provides a few useful questions and answers for foreigners in the United States who want to enroll in a course of study at an approved American institution:
What can I do if my current nonimmigrant visa status doesn’t allow me to change my current status to a course of study program?
The first thing you need to know is that you should NOT enroll in any classes or start your study program – until the USCIS has formally approved your change of status request to F-1 or M-1.
If you enroll or start the studies without approval from the USCIS, it can jeopardize your current nonimmigrant status. Your current request or any future request for F-1 or M-1 status may be denied.
USCIS recommends that if “USCIS has not adjudicated your change of status at least 15 days before the program start date on your Form I-20, contact the Designated School Official (DSO) at your new school.”
If USCIS hasn’t granted your change of status request:
- You’ll need to defer your attendance until the following terM
- You’ll also need to wait until the following term to start your studies – once you obtain approval of the F-1 or M-1 change request.
If USCIS does not grant your request to change status prior to the start date of classes, you will need to defer attendance and wait until the following term in order to begin your studies at the school in F or M status. During the delay for your Form I-539 change request, you must still keep your nonimmigrant status in a valid condition. USCIS recommends that students “work closely with their DSO to coordinate the timing of applying for change of status and enrolling in a course of study.”
“NOTE: If you are an M-1 student, you may not change to F status while you are in the United States.”
What if I Have a Gap in Status?
The short answer is that the best step is to contact an experienced visa lawyer. Bridging the gap in status from B-1/B-2 status to F-1/M-1 status is very complex – and apt to be very frustrating. Skilled lawyers can explain your rights, the probable time frame, and the practical issues for meeting the gap requirements.
The first date to consider is whether your nonimmigrant status will “expire more than 30 days before your F-1 or M-1 program start date.” If you want to stay in America (as opposed to leaving and applying for F-1/M-1 status from abroad), you do need to “find a way to obtain status all the way up to the date that is 30 days before your program start date (“bridge the gap”).”
Generally, if you want to change your status from B-1/B-2 (or another nonimmigrant status) to F-1/M-2, you must file a Form I-539 request to either:
- Extend your current status
- Change your status to another nonimmigrant status
This Form I-539 is in addition to the original I-539 request to change your status to F-1/M-1.
If you don’t file the second I-539 form, your first I-539 form will be denied.
You’ll need to continually check “the USCIS processing times while your Form I-539 change of status request is pending to determine if you need to file a request to extend or change your nonimmigrant status.”
Foreigners seeking to study in the US through an F-1 or M-1 visa should also understand that their “program start date may be deferred to the following academic term or semester because USCIS did not make a decision on your Form I-539 change of status application – before your originally intended F-1 or M-1 program start date.”
In some cases, applicants may need to file multiple bridges the gap requests. In addition, these potential students need to understand that there are separate filing fees for each form they file.
Call Herman Legal Group at 1 (216) 696-6170 or fill out our contact form to talk with us about any questions you have regarding changing your B-1 or B-2 status to F-1 or M-1 status.
Some immigrants can change their nonimmigrant status to F-1 status, if approved by the USCIS. Others can’t. Generally, according to the USCIS, you can apply for a change in nonimmigrant status from one visa classification to another if:
- You were lawfully admitted to the US.
- Your current status is still valid
- You haven’t violated any of the conditions of your status
- You haven’t committed any crimes that would make you ineligible
There is no requirement to change “your nonimmigrant status if you wish to attend school in the United States, and you are the spouse or child of someone who is lawfully admitted to the United States in any of the following nonimmigrant visa categories;”
- Diplomatic and other government officials, and employees (A visa category)
- International trade and investors (E visa)
- Representatives to international organizations and their employees (G visa)
- Temporary workers (H visa)
- Representatives of foreign media (I visa)
- Exchange visitors (J visa)
- Intracompany transferees (L visa)
- Academic (F visa) or vocational (M visa) students (you may attend elementary, middle, or high school only). However, if you want to attend post-secondary school full-time you must apply for a change of status.
Individuals in F-2 status are eligible for part-time study
Anyone who was admitted into the US through one of the following nonimmigrant visas or programs cannot apply to change their nonimmigrant status:
- Visa Waiver Program
- Crew member (D nonimmigrant visa)
- In transit through the United States (C nonimmigrant visa)
- In transit through the United States without a visa (TWOV)
- Fiancé of a U.S. citizen or dependent of a fiancé (K nonimmigrant visa)
- Informant (and accompanying family) on terrorism or organized crime (S nonimmigrant visa)
If you have a vocational student (M-1), you may not apply to change your status to a(n):
- Academic student (F-1)
- “Any H status (Temporary worker), if the training you received as a vocational student in the United States provided the qualifications for the temporary worker position you seek.”
If you are an international exchange visitor (J-1), you may not change your nonimmigrant status if:
- You were admitted to the United States to receive graduate medical training unless you receive a special waiver.
- You are an exchange visitor and are required to meet the foreign residence requirement unless you receive a waiver.”
“If you do not receive a waiver, you may only apply to change to a diplomatic and other government official (A visa) or representatives to international organizations (G visa)”
If your status is of a type that allows full-time studies in America, you may start classes before your change of status application is approved. Your rights to any type of employment, such as an assistantship, may be denied, however, until after your F-1 status is approved.
The ability to transfer your status is generally governed by federal statute – 8 C.F.R. § 214.2(b)(7). This statute provides, specifically, that if you a B-1 or B-2 status, you are prohibited from entering into a course of study in the United States. You must seek to change your status to F-1 status (academic status) or M-1 (vocational student status).
You can start a school program if you have E status – provided the schooling doesn’t interfere with your E status. E status is a nonimmigrant visa status for treaty traders and investors.
If you start a school program while you have B-1 or B-2 status, you will be considered to be in violation of your nonimmigrant status which means:
- Your rights to stay in America may not be extended
- You will lose your right to request a change in status to F-1 or M-1 status.
If you seek a change of status to F-1 from within the US, you will not receive an F-1 travel visa, only F-1 status. If you leave America, you will need to apply for an F-1 visa at a U.S. consulate in order to be able to return to the U.S.
Call Herman Legal Group at +1-216-696-6170 or fill out our contact form to talk with us about helping you determine your eligibility to change your status to F-1 or M-1 status.
On April 13, 2020, the US Department of Homeland Security issued a press release due to the COVID-19 pandemic – as to how the pandemic applies to immigration-related issues.
DHS is working to protect Americans and American communities – including considering policies to help improve US working conditions during the pandemic.
The DHS announced the following options for nonimmigrants who need to “remain in the United States beyond their authorized period of stay due to COVID-19.”
Apply for an extension
One fundamental way to reduce the consequences of COVID-19 on nonimmigrants is to file an extension of stay (EOS) application or a change of status application (COS) in a timely manner. USCIS is continuing to accept and process these applications and petitions. The forms should be available online.
Be sure to file your EOS/COS request in a timely manner
If you file your EOS/COS application before your expiration date, nonimmigrants generally do not accrue unlawful presence – while the application is pending.
“Where applicable, employment authorization with the same employer, subject to the same terms and conditions of the prior approval, is automatically extended for up to 240 days after I-94 expiration when an extension of stay request is filed on time.”
There is some flexibility for late applications
USCIS is considering COVID-19 pandemic delays in deciding “whether to excuse delays in filing documents based on extraordinary circumstances.
“ The USCIS does have the discretion to excuse a failure to file a timely Form I-129 or Form I-539 request it if was due to extraordinary circumstances beyond the applicant’s control. COVID-19 is generally considered an extraordinary circumstance.
- The length of the delay must match the circumstances
- The EOS/COS request is subject to current regulations and our Special Situations page
- The applicant must supply credible evidence and documentation to support their EOS/COS request.
- Each request is considered on a case-by-case basis.
- Some of the guidelines the USCIS has are those that have been used in the past for natural disasters and other crises.
Additional information about COVID-19 related requests is governed by 8 CFR 214.1(c)(4) and 8 CFR 248.1(c). Applicants need to dot the I’s cross the t’s when filing either Form I-129 and Form I-539.
During the COVID-19 health care crises, the USCIS press release does indicate that COVID-19 may be a consideration for extending a person’s stay – if their entry into the United States was based on the Visa Waiver Program.
Normally applicants and petitioners can’t use the Visa Waiver Program to extend their American stay or change their nonimmigrant status. The USCIS does confirm in the press release that “if an emergency (such as COVID-19) prevents the departure of a VWP entrant, USCIS in its discretion may grant a period of satisfactory departure for up to 30 days.”
More information about emergency VWP stays due to COVID-19 can review at 8 CFR 217.3(a).
For those VWP entrants already granted satisfactory departure and unable to depart within this 30-day period because of COVID-19 related issues, USCIS has the authority to temporarily provide an additional 30-day period of satisfactory departure.
To request a satisfactory departure from USCIS, a VWP entrant should call the USCIS Contact Center.
Anyone who has any questions about how COVID-19 is affecting any aspect of USCIS policies and procedures should consult uscis.gov/coronavirus.
Contact an experienced immigration attorney if you or a loved has questions about seeking an extension of stay or change of status for any reason including COVID-19.