Immigration Update – February 4, 2024

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Securities:

USCIS Announces Enrollment Period, Instructions, and Updates for FY 2025 H-1B Cap Season – U.S. Citizenship and Immigration Services announced that the initial registration period for the FY 2025 H-1B cap season will open at noon ET on March 6, 2024 and will continue until at noon ET on March 22, 2024.

USCIS issues final rule with new filing fees – U.S. Citizenship and Immigration Services has issued a final rule, effective April 1, 2024, to adjust certain application fees for immigration and naturalization benefits. The final rule includes fee increases for various categories.

World: Netherlands – This article discusses the single nationality principle in Dutch law and the proportionality test, as well as how they operate in practice.

Details:

USCIS Announces Enrollment Period, Instructions, and Updates for FY 2025 H-1B Cap Season

The United States Citizenship and Immigration Services (USCIS) announced that the initial registration period for the FY 2025 H-1B cap season will open at noon ET on March 6, 2024 and will continue until noon ET on March 22, 2024. During this period, prospective petitioners and their representatives, if applicable, must use a USCIS online account to register each beneficiary electronically and pay the associated registration fee .

The final rule makes several changes. For example:

  • Instead of selecting by registration, USCIS will select registrations by single beneficiary. Each unique beneficiary who has an entry submitted on their behalf will be entered once in the selection process, regardless of the number of entries submitted on their behalf.
  • Start date flexibility will be provided for certain petitions subject to the H-1B cap. Deposit will be authorized if the requested start dates are after October 1 of the financial year concerned.
  • Registrations must include the beneficiary’s valid passport information or valid travel document information, and a beneficiary is prohibited from being registered under more than one passport or travel document. USCIS said the change to allow a valid travel document “is intended to closely accommodate stateless persons, refugees, and others who are unable to obtain a valid passport, and directly addresses to public comments.

Details:

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USCIS issues final rule with new filing fees

U.S. Citizenship and Immigration Services (USCIS) issued a final rule, effective April 1, 2024, to adjust certain application fees for immigration and naturalization benefits. The final rule includes fee increases for various categories, such as:

  • I-129 H-1B (designated beneficiaries), $460 to $1,080
  • I-129 H-1B (designated beneficiaries, small employers and nonprofits), $460 to $540
  • I-129 L Non-immigrant workers, $460 to $1,385
  • I-129 L Nonimmigrant workers (small employers and nonprofits), $460 to $695
  • Immigrant petition I-526/526E by autonomous regional center, from $3,675 to $11,160

Among other things, the final rule also:

  • Imposes new asylum program fees to be paid by employers who file either a Form I-129, Petition for a Nonimmigrant Worker, a Form I-129CW, Petition for a CNMI Nonimmigrant Transient Worker Only, or a Form I -140, Immigrant Petition for Foreign Worker. The fee will be $0 for non-profit organizations; $300 for small employers (defined as businesses or individuals with 25 or fewer full-time employees); and $600 for all other filers of Forms I-129 and I-140.
  • Allows half-price applications for work authorization documents for adjustment of status applicants and reduced fees for adjustment of status applicants under 14 years of age in certain situations; And
  • Implements a standard $50 discount for most online filers. The discount does not apply “in limited circumstances, such as when form fees are already provided at a substantial discount or USCIS is prohibited by law from charging a full cost recovery fee.” .

Details:

  • USCIS Final Rule, 89 Fed. Reg. 6194 (January 31, 2024).
  • USCIS FAQ on the fee rule (January 31, 2024). The FAQ includes a complete list of revised forms effective April 1, 2024, as well as the new fees. USCIS has stated that it will accept previous editions of most forms during a grace period from April 1, 2024 to June 3, 2024. During the grace period, USCIS will accept previous editions and new ones of some forms, filed for the correct fee.

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Global: The Netherlands

This article discusses the single nationality principle in Dutch law and the proportionality test, and how they operate in practice.

A solid principle of Dutch nationality law is that dual nationality should be avoided. Following the Tjebbes judgment of the Court of Justice of the European Union (EU), this principle is mitigated by a proportionality test for cases of automatic loss of Dutch nationality. A provision to this effect was introduced into the Dutch Nationality Act (NNA) on April 1, 2022.

The most common cases of automatic loss of Dutch nationality result from:

  1. Voluntary acquisition of another nationality; Or
  2. Extended stay abroad in possession of two (or more) nationalities.

There are exemptions. For example, acquiring a second nationality does not result in loss of Dutch nationality if one is married to a person of the new nationality. However, these cases occur frequently and for many people affected, it is not so much the fact of losing Dutch nationality as the automatic nature of the loss that hits the hardest. This happens by act of law; a decision by a Dutch authority to revoke nationality is not necessary. Often the victim discovers that they are no longer Dutch when they try to renew their Dutch passport.

The Tjebbes ruling

Since April 1, 2022, a new provision has been included in the NNA following the Tjebbes judgment of the Court of Justice of the EU of March 12, 2019. Thanks to a new subcategory of “option procedure”, This group of people can apply to regain their Dutch citizenship. The option procedure is, alongside naturalization, a way to apply for Dutch citizenship, especially for people of Dutch origin and former Dutch nationals. By submitting an option request based on the new provision, a proportionality test may be requested. The test examines whether the loss of Dutch citizenship was indeed disproportionate.

This test was applied in the Tjebbes judgment, in which the EU Court mentioned several circumstances which can be taken into account in the proportionality test, mainly relating to the individual’s rights to free movement and residence on the territory of the EU and whether these were lost due to loss of nationality.

Nationality law is increasingly influenced by EU law. This somewhat relaxed the strictness of Dutch law aimed at avoiding dual nationality. Former Dutch nationals now have a formal appeal against the disproportionate nature of the loss of their nationality.

In practice, the standard to be met is high. Case law will determine the effectiveness of this proportionality test.

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