Tag: Immigration Updates & FAQs

The November Visa Bulletin has been published by the Department of State.  The Bulletin dates for filing remain the same for most employment-based and other categories, with some advancement for final action dates.  Significantly, USCIS confirmed that it will follow the Visa Bulletin’s dates for filing in the employment-based categories. This means that employment-sponsored foreign nationals who were eligible to file in October, many of whom have been waiting years, will continue to be eligible to file their I-485, adjustment of status (“green card”) applications in November.

Employment-Based Priority Date Summary

The priority date advancement in October, which remains steady in November, most significantly impacts Indian and Chinese nationals subject to long backlogs.  Individuals in a category that is “current” as well as individuals who have a priority date before the cut-off date listed under dates for filing on the Visa Bulletin may file an adjustment of status/green card application this month.

EB-1, FIRST PREFERENCE CATEGORY

• Worldwide (including El Salvador, Guatemala and Honduras, Mexico, and Philippines) is current in November.
• India and China:   The cut-off date for filing is September 1, 2020.

EB-2, SECOND PREFERENCE CATEGORY

• Worldwide (including El Salvador, Guatemala and Honduras, Mexico, and Philippines) remains current in November.
• China: The cut-off date for filing is October 1, 2016.
• India:  The cut-off date for filing is May 15, 2011.

EB-3, THIRD PREFERENCE CATEGORY

• Worldwide (including El Salvador, Guatemala and Honduras, Mexico, and Philippines) and EB-3 Worldwide Other Workers (including El Salvador, Guatemala and Honduras, Mexico, and Philippines) (including EB-3 Other Workers) is current in November.
• EB-3 China’s cut-off date for filing is June 1, 2018.   There is forward movement for EB-3 China Other Workers’ and the cut-off date for filing is now May 1, 2009.
• EB-3 India’s (and EB-3 India Other Workers’) cut-off date for filing is January 1, 2015.

While individuals with a priority date that is current or before the published cut-off date may file an adjustment of status application based on the dates outlined above, an individual’s green card application may not be approved until the priority date is available under the final action dates posted on the Visa Bulletin.  These dates may differ significantly depending on the preference category and country of birth.

BACKGROUND

In October, there was rapid advancement in the employment-based priority dates reflecting the impact of travel bans and consular closures in fiscal year (FY) 2020.  In particular, Presidential Proclamation 10014 (PP 10014), banning admission of certain immigrants, meant that many family-based immigrants were unable to obtain their immigrant visas in FY 2020. By statute, the unused family-based numbers from FY 2020 have been added to the FY 2021 employment-based visa allocation.  In the first month of FY 2021, a record number of immigrant visas are available in most of the employment-based categories.

WHAT SHOULD EMPLOYERS EXPECT?  

Employers should work with immigration counsel to identify foreign nationals who are eligible to file adjustment of status applications this month, and those who were current in October will have additional time to file their cases.  Quick action to initiate cases is critical, as these applications require significant documentation, including documentation required under the recently reinstated Public Charge provisions.  The late publication of the new visa bulletin and the Thanksgiving holidays shorten the timeline to file.

Although the Department of State projected that some advancement in employment-based priority dates will continue through January 2021, filing dates remained steady in November and the large number of cases expected to be filed in October and November will likely impact the final action dates.

For additional information, please contact your designated Gibney representative or email info@gibney.com.

U.S. Citizenship and Immigration Services  announced that it will increase the premium processing fee for all filings currently eligible for premium processing service effective October 19, 2020.

• The I-907, Request for Premium Processing fee for all eligible I-140 permanent resident petitions, and most covered I-129 petitions (including petitions requesting  H-1B, L, O, or TN status) will increase from  $1,440 to $2,500.
• The I-907 premium processing fee for I-129 petitions requesting  H-2B or R-1 status will increase from $1,440 to $1,500.

All Form I-907 requests postmarked on or after Monday, October 19, 2020 must include the new fee or the request for premium processing service will be rejected.

Background

As previously reported, the Continuing Appropriations Act, 2021 and Other Extensions Act signed into law on October 1 authorized USCIS to increase premium processing fees and also to expand premium processing service to other petitions and applications. Although USCIS has now increased the fee, it has not yet expanded the premium service option to other benefits.

Please contact your Gibney representative for additional information or email info@gibney.com.

 

 

The Trump Administration has announced that it will publish two Interim Final Rules on Thursday, October 8, 2020  that will substantially alter the H-1B visa program for temporary professionals working in a  specialty occupation and significantly increase wage obligations for employers that file H-1B, H-1B1, and E-3 petitions, and PERM labor certification applications. The rules will have an immediate, direct and adverse impact on businesses seeking to employ these workers.

• The  U.S. Department of Labor (DOL) rule imposes a higher wage requirement on businesses that employ H-1B, H-1B1 and E-3 workers, and businesses that sponsor PERM labor certifications for foreign workers.  The DOL rule is effective October 8, 2020.
• The U.S. Department of Homeland Security (DHS) rule drastically restricts who will qualify for an H-1B visa by narrowly redefining what qualifies as a specialty occupation. Additionally, the rule imposes restrictions on petitioners who place H-1B workers at third-party worksites. The restrictions will also impact the end-clients that contract for services provided by these workers.  The DHS rule will take effect 60 days from the date of publication.

DOL Rule

Employers who sponsor H-1B, H-1B1 and E-3 nonimmigrant (temporary worker) petitions must first obtain a Labor Condition Application (LCA) from DOL prior to submitting a petition to U.S. Citizenship and Immigration Services (USCIS). In connection with the LCA, the employer must make certain attestations about the wages and working conditions for foreign workers. The employer must pay foreign workers at least the prevailing wage for the occupation in the area of intended employment, commensurate with the level of experience required for the position.  Similarly, prior to filing a PERM labor certification application for permanent residence sponsorship on behalf of a foreign worker, the sponsoring employer must obtain a Prevailing Wage Determination (PWD) from DOL, and the employer must offer a wage that is at least the DOL-determined prevailing wage level for the occupation in the area of intended employment.

The DOL rule revises the calculus used to determine prevailing wage levels, significantly increasing the wage requirement for LCAs and PWDs.

The revised prevailing wage requirement will apply to:

• applications for PWDs  pending with the National Prevailing Wage Center (NPWC) as of October 8, 2020;
• applications for PWDs filed with the NPWC on or after October 8, 2020; and,
• LCAs filed with DOL on or after October 8, 2020 where the DOL’s wage survey data is the prevailing wage source, and where the employer did not obtain the PWD from the NPWC prior to the effective date of the regulation.

DOL will not apply the new regulations to any previously-approved prevailing wage determinations, permanent labor certification applications, or LCAs.

DHS Rule

The DHS rule does the following:

• Narrows the definition of and standards for a specialty occupation to limit who will qualify for the visa.
• Imposes restrictions aimed at employers that place H-1B workers at end-client sites (third-party placement petitions), including revising how an “employer” and “worksite” are defined, and detailing how USCIS will determine whether there is an employer-employee relationship between the petitioning company and the employed foreign national.
• Limits validity of third-party placement petitions to 1 year (instead of the prior maximum of 3 years).
• Codifies USCIS H-1B site visit authority, including the authority to visit end-client sites and interview employees, and the authority to revoke petitions for perceived failure to cooperate.

The rule will apply to petitions filed on or after the effective date of the regulation (60 days from publication).  The rule will not apply to previously approved petitions. However when an extension or amended petition is filed for a foreign worker after the rule takes effect, the rule will  apply to the extension/amendment filing. It is projected that the new rule will eliminate eligibility for one-third of sponsored petitions. If implemented, this will cause significant workforce disruptions and business continuity issues for impacted employers.

Looking Ahead

Legal challenges are expected. The Administration has advanced both rules on a fast track, proceeding with implementation prior to consideration of public comments. The emergency rationale offered for doing so is dubious.  Collectively, the rules aim to effectuate the Administration’s 2017 Buy American Hire American Executive Order, bypassing Congress to rewrite the law.  The DHS rule may be particularly vulnerable, in that within the past few weeks, different federal courts have found that the DHS acting secretary was likely appointed illegally and thus lacks the authority to impose new rules.  Similar challenges are expected here.

For additional information, please contact your designated Gibney representative or email info@gibney.com.

 

On September 30, 2020 the President signed the Continuing Appropriations Act, 2021 and Other Extensions Act, to fund the U.S. government through December 11, 2020. The Act also addresses USCIS revenue shortfalls and the need to meet operational expenses. It includes measures to expand the scope of premium processing service and increase premium processing fees.  These measures will not take effect until USCIS takes affirmative steps to implement the changes.

What to Expect

Categories Covered
The Act specifically authorizes USCIS to make  premium processing service available for the following petitions/applications:

• Employment-based nonimmigrant petitions and associated applications for dependents;
• Form I-140 petitions for immigrant visa classification;
• Form I-539 applications to change/extend nonimmigrant status;
• Form I-765 applications for employment authorization documents; and,
• Any other immigration benefit type deemed appropriate by the Department of Homeland Security (DHS).

Increased Fees
The premium processing fee for benefits already eligible for premium processing service will increase from $1,440 to $2,500.  This includes

• Form I-129 nonimmigrant petitions filed for TN, H-1B and L-1 classification;
• Form I-140 immigrant visa petitions filed for persons of extraordinary ability and outstanding professors and researchers (EB-1), advanced-degree professionals (EB-2), professional and skilled workers (EB-3).

New Categories and Fees
USICS will be required to follow the rulemaking process and publish regulations to set fees for the expanded premium processing services, but it must be consistent with the following:

• Form I-140 immigrant petitions filed for Multinational Managers and Executives (EB-1) and National Interest Wavier (NIW) EB-2. For these petitions, the fee may not exceed $2,500 and processing time may not exceed 45 days.
• Change of status requests for F, J and M status. The fee may not exceed $1,750 and processing times may not exceed 30 days.
• Change of status requests for dependents seeking E, H, L, O, P and R status.  The fee may not exceed $1,750 and processing times may not exceed 30 days.
• Form I-765 for an employment authorization document. The fee may not exceed $1,750 and processing times may not exceed 30 days.

The premium processing time clock will not begin until DHS receives all prerequisites for adjudication of the benefit sought.

Also of Note

The Act requires USCIS to present Congress with a five year plan within 180 days on the following:

• Electronic filing procedures for all applications and petitions;
• Acceptance of electronic filing at all locations; and,
• Issuance of all correspondence and notices electronically.

USCIS must also ensure that providing expanded premium processing services does not result in an increase in processing times for other benefit applications.

Gibney will continue monitor the expected changes to premium processing services and fees, and will provide updates as they become available. For additional information, please contact your designated Gibney representative or email info@gibney.com.

On October 1, 2020, a federal district court blocked enforcement of Presidential Proclamation 10052 (PP 10052) issued in June 2020, which suspends the entry of temporary foreign workers in certain visa categories, including many H, L, and J visa applicants.  The court found that PP 10052 exceeded the President’s authority and unlawfully invalidated significant portions of the Immigration and Nationality Act.  The impact of the ruling is currently limited to the plaintiffs who filed suit and the members of their respective organizations.  Plaintiffs include the National Association of Manufacturers, the Chamber of Commerce of the United States, the National Retail Federation, and others.

Impact on Foreign Workers

While the court’s injunction remains in place, visa applicants sponsored by plaintiffs or their member organizations are not subject to the PP 10052 entry bans on work visa categories.  However, visa applicants may still be subject to regional travel bans restricting travel to the U.S. from designated countries pursuant to other proclamations, and consular operations may be impacted by local COVID-related public health measures.  For more information regarding coronavirus-related travel bans, please see Gibney’s Immigration Updates and FAQs.

Looking ahead, the Trump Administration may appeal the court’s decision.  If the injunction remains in place or is expanded in scope by other rulings, the U.S. Department of State is likely to issue additional guidance regarding consular processing for visa applications.

Temporary visa holders should consult with immigration counsel prior to departing the U.S., seeking entry to the U.S. or applying for a visa. International travel carries risks related to COVID-19, and immigration policies are subject to change with little notice.

The case is National Association of Manufacturers, et. al. v. United States Department of Homeland Security, et. al. (U.S. District Court Northern District of California Case 4:20-cv-04887-JSW).

For additional information, please contact your designated Gibney representative or email info@gibney.com.

The October 2020 Visa Bulletin takes effect today.  The Bulletin shows rapid advancement in priority dates for both final action dates and dates for filing  in the employment-based  (EB) preference categories, with the exception of EB-5.  Significantly, USCIS indicates that it will follow the Visa Bulletin’s dates for filing in the employment-based categories. This means that numerous employment-sponsored foreign nationals, many of whom have been waiting years, are eligible to file their I-485, adjustment of status (“green card”) applications in October.

Employment-Based Priority Date Summary

The October priority date advancement most significantly impacts Indian and Chinese nationals subject to long backlogs.  Individuals  in a category that is “current” as well as  individuals who have a priority date before the cut-off date listed under dates for filing on the Visa Bulletin may file an adjustment of status/green card application this month.

EB-1, First Preference Category

• Worldwide (including El Salvador, Guatemala and Honduras, Mexico, Philippines, and Vietnam) is current in October.
• India and China:   The cut-off date for filing is September 1, 2020.

EB-2, Second Preference Category

• Worldwide (including El Salvador, Guatemala and Honduras, Mexico, Philippines, and Vietnam) remains current in October.
• China: The cut-off date for filing is October 1, 2016.
• India:  The cut-off date for filing is May 15, 2011.

EB-3, Third Preference Category

• Worldwide (including El Salvador, Guatemala and Honduras, Mexico, Philippines, and Vietnam) and EB-3 Worldwide Other Workers (including El Salvador, Guatemala and Honduras, Mexico, Philippines, and Vietnam) (including EB-3 Other Workers) becomes current in October.
• EB-3 China’s cut-off date for filing is June 1, 2018.   EB-3 China Other Workers’ cut-off date for filing is October 1, 2008.
• EB-3 India’s (and EB-3 India Other Workers’) cut-off date for filing is January 1, 2015.

While  individuals with a priority date that is a current or before the published cut-off date may file an adjustment of status application based on the dates outlined above, an individual’s  green card application may not be approved until the priority date is available under the final action dates posted on the Visa Bulletin.  These dates may differ significantly depending on the preference category and country of birth.

Background

The rapid advancement in the employment-based priority dates reflects the impact of travel bans and consular closures in fiscal year (FY) 2020.  In particular, Presidential Proclamation 10014 (PP 10014), banning admission of certain immigrants, meant that many family-based immigrants were unable to obtain their immigrant visas in FY 2020. By statute, the unused family-based numbers from FY 2020 have been added to the FY 2021 employment-based visa allocation.  In this first month of FY 2021, a record number of immigrant visas are available in most of the  employment-based categories.

What  Should Employers Expect?  

Employers should work with immigration counsel to identify  foreign nationals who are eligible to file adjustment of status applications this month.  Quick action to initiate cases is critical, as these applications require significant documentation, including  documentation required under the recently reinstated Public Charge provisions.

The Department of State has projected that advancement in employment-based priority dates will continue through January 2021. However, this will be subject to fluctuations in applicant demand and the government’s ability to process applications.   The November Visa Bulletin will be published later in October, and will give some insight into whether the advancement is sustained.  We must also wait and see if USICS will honor filing dates next month, or if it will instead revert to following final action dates, which are less favorable.

For  additional information, please contact your designated Gibney representative or email info@gibney.com.

A federal court has temporarily barred the Department of Homeland Security (DHS)  from implementing a rule that would have significantly increased many immigration application filing fees.  The rule was set to take effect October 2, 2020.  In prohibiting USCIS from implementing the rule while litigation proceeds, the court found that  acting DHS Secretary Chad Wolf was likely improperly appointed and thus likely lacked authority to issue the rule. The government is expected to appeal the decision.

Overview of the Fee Rule
The fee rule would have significantly increased filing fees for many applications including petitions for H-1B, L-1, O and TN status, and applications for citizenship.  The rule also introduced new versions of some USCIS forms and extended the premium processing adjudication period from 15 calendar days to 15 business days.  The court’s order prohibits USCIS from implementing or enforcing any portion of the rule, so while the injunction is in effect, USCIS may not implement the fee increases, increase premium processing times, nor require the new forms advanced in the rule.  As of the publication of this alert, USCIS has not yet updated its website with respect to the court’s order.

The case, from the Northern District of California, is Immigrant Legal Resource Center, et al v. Chad F. Wolf et al., case number 4:20-cv-05883.

For additional information, please contact your designated Gibney representative or email info@gibney.com.

The U.S. Department of Homeland Security (DHS) has extended Form I-9 compliance flexibility for certain employers for an additional 60 days, until November 19, 2020. The policy, initially announced on March 20, 2020,  relaxes the requirement to review Form I-9 identity and employment verification documents for remote workers “in-person” during the pandemic.

WHO DOES THE POLICY AFFECT?

Form I-9 in-person inspection rules are relaxed for any US employer who has converted to a total remote working schedule for all employees due to COVID-19. The policy  states that “if there are employees physically present at a work location, no exceptions are being implemented at this time for in-person verification of identity and employment eligibility documentation for Form I-9.“ However, according to the policy, DHS will consider exceptions if newly-hired employees are subject to COVID-19 quarantine or lockdown protocols.

HOW SHOULD QUALIFYING EMPLOYERS PROCEED?

Remote employees must complete Section 1 of Form I-9 and choose identity and work-authorization documents from List A/B/C. Within three (3) business days of hire, remote employers must inspect the employee’s documents over video link, email, fax, etc., and complete Section 2 of Form I-9. Employers must retain copies of any documents inspected remotely. Employers should enter “COVID-19” as the reason for the physical inspection delay in the Section 2 Additional Information field.

After normal operations resume and employees return to the office, employers will have three (3) business days to physically examine the same documents previously reviewed electronically/remotely. Once the documents have been physically inspected, the employer should add “documents physically examined” with the date of inspection to the Section 2 Additional Information field on the Form I-9, or to Section 3, as appropriate.

Qualifying employers who avail themselves of this option must be prepared to provide DHS with written documentation of their remote onboarding and telework policy.

DHS reminds employers that, as a general matter for remote workers (even before the pandemic), a company may designate anyone to serve as an “authorized representative” of the company for completion of Section 2, including the in-person inspection of documents. Rather than relying on the temporary pandemic policy for a remote workforce, an employer may consider utilizing an authorized representative to inspect the employee’s documents in-person with three (3) days of hire, in accordance with pre-existing rules permitting the use of authorized representatives to perform this function. The employer is liable for any violations in connection with the form or the verification process, including any violations in connection with the form or the verification process.

The relaxed  rules for qualifying employers with a total remote workforce will remain in place until November 19, 2020.

WHAT ELSE?

As a reminder, DHS also previously announced temporary relaxation of  Form I-9 verification requirements pertaining to individuals utilizing an  Employment Authorization Document (EAD) for employment.  Specifically,  employees may use a Form I-797, Notice of Action in lieu of the EAD, as a Form I-9, List C document establishing employment eligibility if the Notice indicates approval of an Application for Employment Authorization and is dated on or after December  1, 2019 and through and including August 20, 2020.  The relaxed Form I-9/EAD verification rule in effect until December 1, 2020.  Additional information is available at Gibney’s insights.

Gibney is  closely monitoring changes to employment eligibility verification policy and procedures and will provide updates as they become available. If you have questions regarding this alert or the Form I-9 process generally, please contact your Gibney representative or email info@gibney.com.

U.S. Citizenship and Immigration Services (USCIS) may resume implementation of its Inadmissibility on Public Charge Grounds Final Rule (Public Charge Final Rule) nationwide after the Second Circuit Court of Appeals lifted a nationwide injunction on September 11, 2020.  As of the publication of this alert, USCIS has not yet updated its website with instructions on how impacted applicants should proceed to comply with the Public Charge Final Rule, nor how it will handle applications that were filed without public charge documentation while the injunction was in effect.

Background

As previously reported,  individuals seeing admission to the U.S. must show they are not likely to become a public charge. The Trump Administration’s Public Charge Final Rule dramatically expanded the definition of pubic charge for individuals seeking to extend or change their temporary status in the U.S., as well as for individuals applying for lawful permanent resident status.  The rule has been the subject of ongoing litigation. In January 2020, the U.S. Supreme Court lifted prior nationwide injunctions, allowing the rule to take effect on February 24, 2020 while litigation on the merits proceeds.  However,  in July 2020, the rule was again enjoined nationwide due to the coronavirus public health pandemic.  That injunction was later modified by the court to include only New York, Connecticut and Vermont.  With the court’s holding on September 11, USCIS may again require all adjustment of status applicants  and individuals applying to change or extend their nonimmigrant status to provide extensive public charge documentation and information.

Gibney will continue to monitor this matter and provide updates as they become available. For additional information, please contact your designated Gibney representative or email info@gibney.com.

The U.S. Department of Homeland Security (DHS) announced  temporary relaxation of a key Form I-9 compliance requirement as it pertains to individuals who require an  I-766, Employment Authorization Document (EAD) for employment.  Specifically,  DHS will permit employees to use a Form I-797, Notice of Action, as a Form I-9, List C document establishing employment eligibility if the Notice indicates approval of an Application for Employment Authorization and is dated on or after December  1, 2019 and through and including  August 20, 2020.

Typically an employee working pursuant to an EAD is  required to provide the actual card as a List C document to establish employment eligibility. However, there have been significant delays by USCIS in producing EAD cards after approval of applications.   The temporary relaxation of the requirement to present the EAD card as a List C document stems from litigation challenging USCIS card production delays.   As a result, an employee may now use the I-797 Notice in lieu of the EAD card as a Form I-9, List C document.

HOW DOES THIS IMPACT EMPLOYERS

• For purposes of Form I-9 compliance, employers may accept the Form I-797, Notice of Action, described above as a Form I-9, Employment Eligibility, List C #7  document. This is true even though the I-797 Notice states  that it is not evidence of employment authorization.
• The I-797 Notice must be dated between December 1, 2019 through and including August 20, 2020, and it must indicate that the Application for Employment  Authorization (I-765) has been approved.
• Employers may use the I-797 Notice as evidence of a List C document and employment authorization  until December 1, 2020.
• Employees must still present an acceptable Form I-9, List B document to establish identity.
• Current employees who require reverification may also present the I-797 Notice  as proof of employment authorization under List C.
• Employers must reverify employees who provided the I-797 Notice as a List C document by December 1, 2020.  At the time of reverification, employees may present their new EAD card or a different document from either List A or List C.

Gibney is  closely monitoring changes to employment eligibility verification policy and procedures and will provide updates as they become available. If you have questions regarding this alert or the Form I-9 process generally, please contact your Gibney representative or email info@gibney.com.