USCIS Requests Employment-Based Green Card Applicants to Interfile to Change Preference Category if Eligible

Citing the exceptionally high number of employment-based (“EB”) green cards available for the current fiscal year, the USCIS announced yesterday that it is requesting green card applicants interfile from EB3 to EB1 or EB2, if an applicant is eligible for EB1 or EB2. This will allow the USCIS to maximize the number of EB green cards issued.

Also called a “transfer of underlying basis,” interfiling allows a green card applicant to change the category (EB3 or EB2) under which the green card is issued. An applicant who originally filed an application under EB3 but also qualifies for the EB1 or EB2 is now encouraged to interfile a request for the USCIS to change the preference category.

The USCIS encourages an applicant who qualifies for both the EB2 and EB3 to interfile to transfer his/her I-485 from EB3 to EB2 to ensure that the EB2 is used.

Please contact your MU attorney if you would like to interfile to change your EB preference.

FEBRUARY 2022 VISA BULLETIN: ANALYIS AND PREDICTIONS

The Department of State has just issued February 2022 Visa Bulletin.  This is the fifth Visa Bulletin of Fiscal Year 2022. This blog post analyzes this month's Visa Bulletin.

Visa Bulletin

Table A: Final Action Dates -- Applications with these dates may be approved for their Green Card (Permanent Residency card) or Immigrant Visa appointment.

EB	All Other	CHINA	INDIA	PHILIPPINES
1st	C	C	C	C
2nd	C	01MAR19	01JAN13	C
3rd	C	22MAR18	15JAN12	C

Table B: Dates of Filing

The USCIS is expected to use the Table B chart for I-485 employment-based filings. See: USCIS Visa Bulletin Dates

MU Law Analysis

This month again there was good news and bad news for the retrogressed EB-2 and EB-3 categories.  The DOS did not move the Indian and Chinese EB-3s.  However, the dates for India and China EB-2 did progress.  India EB-2 moved ahead by about six months.  China EB-2 advanced by six weeks. 

The news remains positive for Philippines and Worldwide EB-3, where dates held at Current.  They are expected to stay Current for the foreseeable future.

USCIS Withdraws H-1B CAP Wage-Based Selection Rule

The Department of Homeland Security has withdrawn its H-1B Selection Final Rule as of December 21, 2021. The Rule was vacated by a US District Court in September 2021, and pursuant to that order, the DHS has withdrawn the Rule in the Federal Register.

First issued on January 8, 2021, the Rule created a new ranking order of H-1B CAP registration entries, rather than using a random lottery, in order to prioritize the highest OES prevailing wage levels. Musillo Unkenholt’s blog about the January 2021 rule can be found here.

The rule was initially intended to go into effect in time for the March 2021 CAP registration period, but it was ultimately delayed in February 2021 and never went into effect for any H-1B CAP lottery.

EXPEDITED PROCESSING AVAILABLE FOR HEALTHCARE WORKERS

USCIS has issued guidance that, effective immediately, healthcare workers who have a pending Employment Authorization Document (EAD) renewal application (Form I-765) can request expedited processing of the application if:

• The healthcare worker’s current EAD will expire in 30 days or less; or

• The healthcare worker’s current EAD has already expired.

Qualifying healthcare workers include, but are not limited to:

• Laboratory personnel performing critical research and testing for COVID-19 or other diseases;

• Healthcare providers providing direct patient care.

• Workers required for effective clinical, command, infrastructure, support service, administrative, security, and intelligence operations.

• Workers needed to support transportation, laundry services, food services, reprocessing of medical equipment and waste management.

• Workers who cannot work remotely that manage health plans, billing, health information, and cybersecurity functions.

• Workers providing security, incident management, and emergency operations at or on behalf of healthcare entities.

• Pharmacy staff.

• Home health workers.

For a full list of qualifying healthcare workers, see this DHS advisory memorandum (“Healthcare / Public Health” section, pages 7-9).

An individual requesting expedited processing should be prepared to provide evidence of their profession or current employment as a healthcare worker. Without sufficient evidence, USCIS may not grant the expedite request.

Should you have any questions or require additional information on this process please reach out to your designed MU attorney.

DEPARTMENT OF STATE UPDATE ON NATIONAL INTEREST EXEMPTIONS

On December 15, 2021, The Department of State (DOS), provided updated guidance in regards to National Interest Exemptions (NIEs).

The DOS confirmed that only in extremely rare circumstances will NIEs be granted for travelers subject to the Southern Africa travel ban, Presidential Proclamation 10315 (PP 10315). The DOS stated that the bar is very high for a NIE for PP 10315 and some posts will not even be accepting NIE requests, due to the very high standard.

Those seeking an NIE under the PP 10315 should contact the local post and provide as much information as possible to request a NIE to PP 10315. DOS confirmed that only under extreme or urgent circumstances, where the visa applicant documents a clear humanitarian need, or where the issue is clearly within the national interest of the United States will a NIE be granted.

In addition, the DOS confirmed that NIEs are no longer valid that were granted under Presidential Proclamations that have been rescinded.

JANUARY 2022 VISA BULLETIN: ANALYIS AND PREDICTIONS

 

The Department of State has just issued January 2022 Visa Bulletin.  This is the fourth Visa Bulletin of Fiscal Year 2022. This blog post analyzes this month's Visa Bulletin.

Visa Bulletin

Table A: Final Action Dates -- Applications with these dates may be approved for their Green Card (Permanent Residency card) or Immigrant Visa appointment.

EB	All Other	CHINA	INDIA	PHILIPPINES
1st	C	C	C	C
2nd	C	22JAN19	08JUL12	C
3rd	C	22MAR18	15JAN12	C

Table B: Dates of Filing

The USCIS is expected the Table B chart for I-485 employment-based filings. See: USCIS Visa Bulletin Dates

MU Law Analysis

Once again, there was good news and bad news for the retrogressed EB2 and EB3 categories.  The DOS did not move the Indian and Chinese EB-3s.  On the other hand, the dates for India and China EB-2, progressed.  India EB-2 moved ahead by a bit over two months.  China EB-2 advanced by three weeks.  These progressions were about half of the progressions that we saw with the December Visa Bulletin.

The story remains positive for Philippines and Worldwide EB-3, where dates held at Current.  They are expected to stay Current for the foreseeable future.

DOS ISSUES TEMPORARY RULE WAIVING IN-PERSON APPEARANCES FOR CERTAIN REPEAT IMMIGRANT VISA APPLICANTS.

On December 13, 2021, the Department of State (DOS) issued a temporary final rule that provides flexibility for consular officers to waive in-person appearances and in-person oath requirements for certain repeat immigrant visa applicants.

Immigrant visa applicants who meet the following criteria, may not need to make another in-person appearance before a consular officer for an interview, execution of their application, or oath:

(1) the immigrant visa was issued on or after August 4, 2019;

(2) the applicant did not travel to the United States on the immigrant visa; and

(3) the applicant seeks and remains qualified for an immigrant visa in the same classification as the expired immigrant visa.

Consular officers still have discretion to require applicants that meet these requirements to appear in-person. This temporary rule is in effect from December 13, 2021 through December 13, 2023.

USCIS 60 DAY MEDICAL EXAM REQUIREMENT TEMPORARILY WAIVED

USCIS has announced that it will waive the requirement that the medical exam Form I-693 be signed by the civil surgeon no more than 60 days prior to filing the I-485, Application to Register Permanent Residence or Adjust Status (green card application).  This waiver of the 60-day rule is effective from December 9, 2021 until September 30, 2022.  The I-693 medical exam will continue to remain valid for two years from the date of the civil surgeon’s signature, regardless of when the I-485 is filed.

This policy will provide additional flexibility to I-485 applicants and allow them to avoid having to undergo a second medical exam in many instances while still encouraging applicants to file the I-485 as soon as possible after completing the medical exam.

EMBASSY AND CONSULATE GUIDANCE TO PRIORITIZE CERTAIN CONSULAR SERVICES HAS BEEN RESCINDED

The Department of State (DOS) previously issued guidance stating that embassies and consulates were required to prioritize certain consular services, due to the COVID-19 epidemic. The DOS now issued a notice that the November 2020 visa prioritization guidance has been rescinded, effective immediately.

All embassies and consulates now have broad discretion to determine how to best prioritize visa appointments, among the range of visa classifications, at each specific embassy or consulate. Embassies and consulates are still subject to any local conditions or restrictions that are in place. In addition, applicants can still request expedited interviews, if their work will be performed at a facility engaged in pandemic response.

USCIS Selects Additional FY2022 H-1B Cap Registrations

The USCIS has conducted a third round of selections in the Fiscal Year 2022 (FY 2022, filed in March 2021) H-1B Cap lottery. This is a historic first for the USCIS since implementing its new H-1B online registration system in 2019, as it has previously only conducted two rounds of selection.

While there are only 85,000 H-1B cap-subject visas available, over 308,000 registrations were entered into the selection lottery for FY2022. The USCIS will continue rounds of random selection until it reaches the 85,000 H-1B quota. The initial selection was conducted in March 2021, and the second round in July 2021. All selections are for registrations entered into the FY2022 H-1B cap lottery in March 2021.

Registrations selected in this latest round will now have a selection notice available on either their myUSCIS account or their attorney’s myUSCIS account. All H-1B cap petitions filed based on this third round of selections must be received by the USCIS by February 23, 2022.  

 

USCIS Policy Alert: Employment Authorization of Certain E, L, and H Spouses

USCIS has issued a Policy Alert, and has updated its Policy Manual accordingly, to explain how its recent settlement in Shergill, et al. v. Mayorkas will be applied in practice for the spouses of E, L, and H nonimmigrants. USCIS will automatically extend EADs for E, L, and H spouses, and within 120 days of USCIS’s policy alert, grant E and L spouses employment authorization incident to status. USCIS expressed its hope that eliminating the requirement of filing Form I-765 for E and L spouses will help reduce USCIS’s adjudication backlogs.

 Automatic Extensions of EADs for E, L, and H spouses

Beginning November 12, 2021, the EADs of E, L, and H spouses will be automatically extended for a period of up to 180 days if:

• The spouse properly filed an Application for Employment Authorization (Form I-765) for a renewal of their E, L, or H spouse-based EAD before the current EAD expired; and

• The spouse has an unexpired Form I-94 indicating valid E, L, or H dependent status.

Duration

Automatic extension of E, L, and H spouses’ EADs will terminate automatically on the earliest of:

• The end of the validity period of the nonimmigrant status, as shown on the Form I-94;

• The approval or denial of the Form I-765 application to renew the EAD; or

• 180 days from the date of the expiration of the previous EAD.

E and L Spouses Authorized for Employment Incident to Status

With a new notation on Form I-94, to be implemented within 120 days of USCIS’s Policy Alert, E and L spouses will be authorized to work automatically if the spouse maintains valid E or L status. The new I-94 notation will (1) differentiate an E or L spouse’s status from that of a child; and (2) authorize the E or L spouse to work.

USCIS has rescinded its previous 2002 policy that required E and L spouses to apply for Employment Authorization using Form I-765 and receive a valid Employment Authorization Document (EAD) card in order to work. However, a Form I-765 may still be filed by E and L spouses if they wish to receive an EAD.

Once CBP implements its I-94 notation of spouse status, a valid E or L spouse I-94 will be sufficient proof of work authorization.

DECEMBER 2021 VISA BULLETIN

The Department of State has just issued December 2021 Visa Bulletin.  This is the third Visa Bulletin of Fiscal Year 2022. This blog post analyzes this month's Visa Bulletin.

Visa Bulletin

Table A: Final Action Dates -- Applications with these dates may be approved for their Green Card (Permanent Residency card) or Immigrant Visa appointment.

EB	All Other	CHINA	INDIA	PHILIPPINES
1st	C	C	C	C
2nd	C	1-Jan-19	01-May-12	C
3rd	C	22-Mar-18	15-Jan-12	C

Table B: Dates of Filing

The USCIS is expected the Table B chart for I-485 employment-based filings. See: USCIS Visa Bulletin Dates

MU Law Analysis

As has been the case for a few months now, the DOS continues to confound.  On one hand – and to the detriment of Indian and Chinese EB-3s– the DOS did not move these countries EB3 dates.  On the other hand, the dates for India and China EB-2, progressed again.  India EB-2 moved ahead by five months.  China EB-2 advanced by six weeks.  Similar progressions are expected in the Dates of Filing chart.

The story remains positive for Philippines and Worldwide EB-3, where dates held at Current.  They are expected to stay Current for the foreseeable future, in contrast to prior announcements from DOS officials.

SETTLEMENT PROVIDES RELIEF FOR NONIMMIGRANT SPOUSES SEEKING EAD RENEWALS

The United States Citizenship and Immigration Services (USCIS) has entered into a settlement which provides beneficial changes to work authorization for H-4 and L-2 spouses. USCIS will issue a formal policy guidance to implement the following two changes.

First, USCIS will now recognize that certain H-4 holders who timely file their EAD renewal applications will qualify for an automatic extension of their EAD while waiting for the adjudication of their renewal application. This automatic renewal will last for up to 180 days after the expiration of the EAD. However, the automatic extension will not exceed the end date of the individuals H-4 status noticed on the Form I-94, and will also end once USCIS issues an approval or denial on the renewal application.

Second, L-2 spouses will be employment authorized incident to status, or in other words, as a condition of the L-2, the spouse will be employment authorized without a separate application. USCIS will work in cooperation with CBP (Customs and Border Patrol) to change the Form I-94 so that L-2 spouses can use the document for Form I-9 purposes.

As stated above, USCIS will be issuing formal guidance further detailing when and how these changes will be implemented. As always, MU will provide further updates as they become available.

NOVEMBER 2021 WEBINAR

 Join us for a review of some of the latest immigration changes and updates!

MU Law will be hosting a FREE webinar for our clients and friends on Tuesday, November 2, 2021 at 1PM Eastern (noon Central).

REGISTER HERE    

Join us for this FREE webinar to learn more about:

-          The Potential for Retrogression

-          Consular Backlogs

-          Expediting Cases for Health Care Workers

-          Additional updates and policy proposals and lobbying efforts

-          Covid Vaccinations now Required for Green Cards

PLEASE JOIN US

US Travel Restrictions Lifted for Fully Vaccinated Individuals

President Biden has issued a new proclamation lifting travel restrictions for fully vaccinated individuals travelling by air to the US beginning November 8, 2021.

Travelers from 33 countries – including India, China, Great Britain, and the Schengen Zone – have faced strict travel restrictions since early 2020 that required a two-week quarantine period in a third country before the individual may enter the US. President Biden’s proclamation lifts all country-specific COVID-19 travel bans.

To travel directly to the US by air, travelers will have to (1) present proof that they are fully vaccinated against COVID-19 and (2) provide a negative COVID-19 test taken within 72 hours of travel. Only vaccines approved or authorized by either the Food and Drug Administration or World Health Organization will be accepted. This list includes vaccines created by:

-          Moderna;

-          Johnson & Johnson;

-          Pfizer-BioNTech;

-          Oxford-AstraZeneca/Covidshield;

-          Sinopharm; and

-          Sinovac.

The proclamation includes several exemptions from the vaccination requirement, including for children under 18, travelers with certain medical conditions, and non-tourists from countries identified by Center for Disease Control and Prevention as having limited availability of vaccination. However, some travelers who enter the US under one of the exemptions may be required to become vaccinated within 60 days of entry.

NOVEMBER 2021 VISA BULLETIN: ANALYSIS

The Department of State has just issued November 2021 Visa Bulletin.  This is the second Visa Bulletin of Fiscal Year 2022. This blog post analyzes this month's Visa Bulletin.

Visa Bulletin

Table A: Final Action Dates -- Applications with these dates may be approved for their Green Card (Permanent Residency card) or Immigrant Visa appointment.

EB	All Other	CHINA	INDIA	PHILIPPINES
1st	C	C	C	C
2nd	C	15-Nov-18	01-Dec-11	C
3rd	C	22-Mar-18	15-Jan-12	C

Table B: Dates of Filing

The USCIS will be using the Table B chart for I-485 employment-based filings. See: USCIS Visa Bulletin Dates

MU Law Analysis

The DOS continues to confound.  On one hand – and to the detriment of Indian and Chinese EB-3s – the DOS retrogressed dates massively.  EB-3 India Final Action dates retrogressed about two years, back to January 15, 2012. EB-3 China retrogressed to March 22, 2018, which is about 9 months.  Adding to the pain of Indian and Chinese EB-3s, Dates of Filing for these categories also retrogressed, which means that there will not be a chance for I-485 filings.

On the other hand, the dates for India and China EB-2, progressed.  India EB-2 moved ahead by three months.  China EB-2 advanced by 5 months.  Similar progressions occurred in the Dates of Filing chart.

The story was benign if confusing for Philippines and Worldwide EB-3, where dates held at Current. 

The confusion comes on the heels of last month’s DOS comments that implied retrogression in all categories, not just India and China EB-3.