U.S. Citizenship and Immigration Services (USCIS) continues to expand availability of Premium Processing. Premium Processing is a program that allows applicants for certain types of petitions to receive expedited processing of their cases within a guaranteed period of time for an additional fee.
Beginning on June 13, USCIS began to accept premium processing requests for applicants with pending I-539 applications seeking a change of status to F-1, F-2, M-1, M-2, J-1, or J-2 status.
As of June 26, USCIS further expanded premium processing to individuals submitting initial I-539 applications requesting a change of status to F-1, F-2, M-1, M-2, J-1, or J-2 status.
Individuals applying in these categories will be able to submit Form I-907 (Request for Premium Processing Service) on paper or online, along with an additional $1750 fee (not $2500 fee). With this, USCIS guarantees that it will take some adjudicative action on the case within 30 calendar days (not 15 calendar days).
Litigation challenging employment authorization for foreign students (F-1 visa holders) has reached the U.S. Supreme Court. Plaintiffs in Washington Alliance of Technology Workers v. DHS, et al. challenge the Department of Homeland Security’s (DHS's) regulatory authority of the Optional Practical Training (“OPT”) and related program for graduates of science, technology, engineering, mathematics programs (“STEM OPT”) which allow F-1 students in the United States to work upon graduation.
Arguing “OPT is now the largest alien guestworker program in the immigration system,” the Washington Alliance of Technology Workers contend the OPT/STEM OPT programs violate the Administrative Procedures Act (“APA”). The APA governs the process by which federal agencies develop and issue regulations. The petitioner’s Writ for Certiorari explains the STEM OPT program was proposed in 2007 by representatives of Microsoft Corporation to then DHS Secretary Michael Chertoff during a dinner party and then implemented without appropriate compliance with the notice and comment periods for regulations under the APA. The plaintiffs argue the lower courts “took Chevron deference into the realm of absurdity” and “its application of Chevron transforms the system of nonimmigrant visas from being a creation of Congress through statute into a system of regulation defined by the bureaucracy.” Chevron deference is a doctrine of judicial deference given to administrative actions. It allows a government agency’s interpretation of an ambiguous status/law to be permissible if such interpretation is “rational” or “reasonable” and Congress has not otherwise addressed the issue. An administrative agency can establish reasonableness of its regulation through adjudications or notice-and-comment rulemaking.
U.S. Senators Ted Cruz (R-TX), Mike Lee (R-UT), Tom Cotton (R-AR), Mike Braun(R-IN), and Katie Boyd Britt (R-AL) filed an Amici Curiae in support of the Washington Alliance of Technology Workers contending “Congress set the requirements for nonimmigrant visa eligibility based on carefully considered judgments about which categories of aliens can be allowed into the country, how long they can stay, what they must do while here, whether they can lawfully work in the United States, and what happens when they fail to maintain their visa requirements” and the OPT programs created by DHS are workarounds circumventing Congress’ authority. In the Immigration and Nationality Act (INA), Congress’ view is that DHS authority is limited to regulations only to the moment of a foreign student’s physical entry to the United States to attend school, not for employment after school ends.
The U.S. Supreme Court has been moving towards limiting the independence of regulatory agencies and is also evaluating the application of the Chevron doctrine in other cases this term.
Additional information about whether the U.S. Supreme Court agrees to consider the appeal will be contained in future Masuda Funai newsletters when they become available.
The U.S. Department of State (DOS) recently posted the Visa Bulletin for July 2023. In addition to the final action dates and dates for filing, the Bulletin contained specific information regarding the retrogression and establishment of final action dates for certain employment and family-based categories.
Notable developments in the employment-based categories include the following:
In the family categories, the following was announced:
Florida has enacted two new laws which will impact the rights of immigrants in the state of Florida.
S.B. 264 “Florida’s New Alien Land Law”” limits real estate ownership and transactions by individuals from designated countries.
Florida Bill 1718 limits certain rights and privileges of individuals who are not U.S. citizens or permanent residents while in the State of Florida and appropriates $12 million to implement this law.
Florida law SB 264 is pending litigation in the U.S. District Court for the Northern District of Florida.
Bob White to Speak at AILA Annual Conference DOL Open Forum and at AILA Paralegals Conference
Bob White, an attorney in the Masuda Funai Immigration Group, is speaking at the American Immigration Lawyers Association (AILA) Annual Conference in Orlando, Florida. Serving as Vice Chair of the AILA Liaison Committee with the Department of Labor (DOL), he will be a panelist on an Open Forum session with DOL officials discussing agency processes and procedures and the new PERM process. He is also speaking at the 2023 AILA Paralegals Conference providing paralegals with an overview of the PERM labor certification program for employment sponsorship for permanent resident status, navigating the entire cycle from initiating a new PERM application to filing a PERM with the DOL.
Julie Emerick to Speak at AILA Annual Conference on RFE Issues
Julie Emerick, an attorney in the Masuda Funai Immigration Group, is also speaking at the AILA Annual Conference. She will be discussing solutions and options when responding to a USCIS inquiry (“Request for Evidence” or “RFE”) on Intracompany Transferee petition (L-1 visa) and the current trends and challenges to obtain an approval for this visa classification.
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