OCTOBER 2020 VISA BULLETIN: EB-3 CURRENT FOR ALL BUT CHINA, INDIA

 

The Department of State has just issued the October 2020 Visa Bulletin. This is the first Visa Bulletin of Fiscal Year 2021. This blog post analyzes this month's Visa Bulletin.

October 2021 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.

Employment- based	All Other	CHINA	INDIA	PHILIPPINES
1st	C	01JUN18	01JUN18	C
2nd	C	01MAR16	01SEP09	C
3rd	C	01JUL17	15JAN10	C

Table B: Dates of Filing

The USCIS has just announced that it will allow the more favorable Date of Filing chart for I-485 Adjustment of Status. This means that all employment based immigrants in EB-1, EB-2 or EB-3 can file their I-485s starting October 1, 2020.  However if they are natives of India or China, their priority date must be earlier than these dates:

MU Law Analysis

This was the Visa Bulletin that we have been expecting for some time.  Because of the State Department’s inability to issues immigrant visas for much of 2020, there are many, many immigrant visas that are now part of allocation for the new fiscal year. 

Both the Philippines and Worldwide (All Other) EB-3 have become current.  We expect these categories to stay current for the foreseeable future.  The only constraint to the Philippine EB-3 visas being issued is the capacity at the Embassy in Manila. 

The good news extended to India.  India EB-1, EB-2 and EB-3 all moved forward, about 3-5 months in all of these categories.  Similarly, China EB-1, EB-2 and EB-3 all moved forward at about the same rates as India.  We do not expect a retrogression in these categories. 

PUBLIC CHARGE RULE IS REINSTATED BY USCIS

On September 22, 2020 the USCIS reinstated the new public charge rule. 

Guidance on the USCIS website states that the USCIS will apply the public charge rule to all petitions postmarked after February 24, 2020. 

USCIS will not re-adjudicate any cases which are already approved, but may issue an RFE for any evidence required by the public charge rule on those cases still pending.  Any cases filed after October 13, 2020 without the forms, information, or evidence required by the public charge rule will be rejected.  The I-944 is now re-published on the USCIS website.

As background:

• In August 2019 the new public charge rule was announced by the Department of Homeland Security.  

• In early October 2019 the new public charge rule was implemented by the USCIS.  In mid-October 2019, the implementation of the new public charge rule was suspended after a law suit was filed. 

• In February 2020 the new public charge rule was implemented after the US Supreme Court lifted the nationwide injunction on January 27, 2020. 

• In July 2020, a District Court Judge in New York stopped the USCIS and DOS from enforcing, applying, implementing, or treating as effective the new public charge rule during the national health emergency declared by President Trump due to Covid-19. On July 31, 2020 USCIS announced that in response to this ruling USCIS will not consider any information or documentation provided with the I-944 on applications filed after July 29, 2020 and removed the form I-944 from its 

221g CRISIS IN MANILA APPEARS TO HAVE ENDED

Thanks to aggressive lobbying and advocacy by the AAIHR, MU Law believes that immigrant visas are again being issued to applicants who apply through the US Embassy in Manila.  This week, a notable number of MU Law clients have been granted their visas.

MU Law recommends that all nurses who have been waiting to schedule their appointment begin contacting the Embassy and reset their appointments.

Previously, the US Embassy in Manila had denied virtually every nurse immigrant visa for the entirety of 2020, including in January and February, before the pandemic began.

WHERE THE HWRA STANDS

The HWRA is an important piece of proposed legislation that would allow US patients access to badly needed nurses and doctors.  These two occupations are severely undersupplied by US workers.  As the COVID pandemic moves into a phase where administration of a vaccine, the need for nurses will exponentially grow.  

The HWRA provides a partial answer to this.  The HWRA allows 25,000 fully qualified nurses into the US, who are only waiting to enter the US because of bureaucratic delays and misallocated visa quotas.  The bill similarly allows doctors who have been waiting in the immigration queue for 10+ years to rise to the top of the queue.  

And the HWRA does all this without adding a single visa to the annual quotas.  The HWRA recaptures visas that were authorized by Congress but were not issued because of processing delays at government agencies. 

With 36 bipartisan Senators (out of 100) who have already signed on to co-sponsor the bill, the HWRA is among the most popular bills in the Senate.  In the House of Representatives, the co-sponsor list is approaching 70 members.  As with the Senate, the House list is fully bipartisan with a nearly 50/50 split between Democrats and Republicans. 

Congress is now back in session, after taking most of August off.  It is expected that the Congress will take up additional COVID relief legislation.  The Democrat-controlled House passed a partisan bill in May, which the Republican-controlled Senate has declined to consider.  Now, the Republican-controlled Senate is expected to do the same, and attempt to pass a “skinny” COVID relief bill.  That bill is also not expected to go anywhere. 

After that it is expected that Democrat and Republican leadership will attempt to broker a deal that both parties can hold their nose and agree to endorse.  Any agreement would have to come in the next few weeks.  HWRA advocates are actively seeking to make the HWRA part of any deal. 

The first US presidential debate is set for September 29.  While not a true deadline, September 29 almost serves as a soft deadline for the HWRA, at least until after the US election on November 3.  If no deal is reached by September 29, there is a chance that Congress returns after the election and revisits a COVID relief deal.

 

USCIS FINDS MONEY. NO FURLOUGHS IN FY 2020.

USCIS announced that it will not have to furlough 13,000 employees, which is about two-thirds its workforce.  The furloughs were set to begin on August 30, 2020.  The agency cited, “unprecedented spending cuts and a steady increase in daily incoming revenue and receipts,” as the reason for the recession of the furloughs.  USCIS first expected the furloughs to begin earlier in the summer.  Those were postponed until August 30.  They have now been further averted.

USCIS Deputy Director for Policy Joseph Edlow warned, “averting this furlough comes at a severe operational cost that will increase backlogs and wait times across the board, with no guarantee we can avoid future furloughs. A return to normal operating procedures requires congressional intervention to sustain the agency through fiscal year 2021.”

SEPTEMBER 2020 VISA BULLETIN: WHY NO MOVEMENT?

The Department of State has just issued the September 2020 Visa Bulletin. This is the last Visa Bulletin of Fiscal Year 2020. This blog post analyzes this month's Visa Bulletin.

September 2020 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.

Employment- based	All Other	CHINA	INDIA	PHILIPPINES
1st	C	01MAR18	01MAR18	C
2nd	C	15JAN16	08JUL09	C
3rd	01APR19	15FEB17	01OCT09	01APR19

MU Law Analysis

There was not much to report this month.  This Visa Bulletin showed no real movement in the categories, which was a bit surprising, although probably reflects the reality that very few immigrant visas are being issued overseas, and the USCIS is backlogged in immigrant visa processing.  Therefore, any movement in the categories was probably unnecessary.  USCIS’ backlog is expected to get worse in light of their forthcoming furloughs. 

MU Law expects the favorable employment-based visa dates to continue next fiscal year.  We explained why on this blog post.

DOS GUIDANCE ON NATIONAL INTEREST EXCEPTIONS

The Department of State released guidance on national interest exceptions to Presidential Trump’s April and June 2020 immigration bans which suspended the entry of certain immigrant visa applicants, applicants for H-1B, H-2B, L-1 visa, certain J-1 visa applicants, and spouses or children applying for H-4, L-2, or J-2 visas through December 31, 2020.

A final determination regarding a visa applicant’s eligibility for a national interest exception will be made at the Embassy or Consulate interview. 

The following, among others, will be considered for a national interest exception for H-1B and L-1 visa applicants:

1.   Public health or healthcare professionals, or researchers to alleviate the effects of the COVID-19 pandemic, or to conduct ongoing medical research in an area with a substantial public benefit.  This includes those traveling to alleviate secondary impacts not directly related to COVID-19, but adversely impacted by the pandemic.

2.   Those requested to come to the U.S. by a U.S. government agency to meet critical U.S. foreign policy objectives or to satisfy treaty or contractual obligations.

3.   Applicants entering the US to resume ongoing employment with the same employer in the same position and visa category.

4.   Technical specialists, senior level managers, and other workers whose travel is necessary to facilitate the immediate and continued economic recovery of the U.S.

5.   Senior level executive or manager filling a critical business need of an employer meeting a critical infrastructure need.

If the principal applicant qualifies for a national interest exception, any accompanying dependents will be able to receive the corresponding H-4, L-2, or J-2 visa. Applicants who are subject to aging out of their current immigrant visa classification by January 14, 2021 can contact the nearest U.S. Embassy or Consulate to request an emergency appointment.

If you need to travel internationally and you believe you may qualify for a national interest exception please contact your MU attorney.

DISTRICT COURT STOPS NEW PUBLIC CHARGE RULE

On July 29, 2020, a District Court Judge in New York stopped the USCIS and DOS from enforcing, applying, implementing, or treating as effective the new public charge rule during the national health emergency declared by President Trump due to Covid-19.  

On July 31, 2020 USCIS announced that in response to this ruling USCIS will not consider any information or documentation provided with the I-944 on applications filed after July 29, 2020.  In addition, the USCIS will not review information provided with respect to public benefits on the I-485, I-129, or I-539 filed after July 29, 2020.  

Applications for green cards postmarked after July 29, 2020 should not include the I-944 or provide information about the receipt of public benefits on the I-485, I-129, or I-539.  

To date, the DOS has not provided guidance on how it will comply with the ruling.

USCIS PUBLISHES FILING FEE INCREASE

On July 31, 2020, the USCIS published a rule that will increase or decrease USCIS filing fees.   The new fees for most business immigration filings are in the table, below.  You can find a full list of new fees here. The new fees go into effect October 2, 2020. 

Form	Current Fee	New Fee	Change
I-129	$460	$460	+$0
I-130	$535	$560	+$25
I-140	$700	$555	-$145
I-485	$1225	$1160	-$65
I-539	$370	$400	+$30
I-765	$410	$550	+$140

USCIS last raised their fees in 2016.  USCIS fees basically pay for the entire USCIS budget.  Very little of the USCIS’s budget comes from federal tax dollars.

USCIS’s budget has recently received news coverage, as the USCIS has indicated they are planning to furlough 13,000 workers due to a budget shortfall.  The USCIS has requested $1.2 billion in emergency funding from Congress.

HWRA ON THE SENATE FLOOR (VIDEO)

Sens. Perdue and Durbin make the case for the Healthcare Worker Resilience Act on the floor of the Senate. 

CLICK HERE (Scroll to 1:36)

USCIS SHORTENS H-1B APPROVALS BASED ON PROFESSIONAL LICENSES

In recently issued H-1B approval notices the USCIS has approved the H-1B for less than the requested 3 years. The USCIS has explained the H-1B was issued for less than 3 years because the employee’s professional license expired before the end of the 3 year H-1B term.

The USCIS is mistakenly interpreting a clause of the code of federal regulations to state that an H-1B approval notice can be shortened to the validity period of an employee’s permanent professional license, when the law clearly states the H-1B can only be shortened to the term of a temporary license.

It is crucial that employees closely monitor the expiration date of their professional licenses, along with other documentation required for the H-1B filing, and timely renew all documents. This includes the professional license, passport, and Visa Screen (FCCPT certificate or CGFNS Visa Screen).

States vary in their procedures for renewing professional licenses and the validity term of the professional license. In addition, the length of time a passport is issued for varies by country. Visa Screens are valid for 5 years from the date of issuance and can take several months to renew. All foreign nationals should closely monitor the expiration dates of their documents.

221g PROBLEM CONTINUES AT MANILA

The Manila Post continues to refuse to issue immigrant visas to nurses as has been the case since before the pandemic.   The Post issues 221g letters or outright denials.  

We had been given some assurance in the spring that the problem was solved but it has not.

We are trying to get Congressional action and agency action with the aim of solving the problem.  Unfortunately, it may take some time because we have to reengage our prior contacts. 

If you have been issued a 221g or a denial and would like to be involved please contact your I-140 petitioner.  The I-140 petitioner (US employer) can then contact Chris Musillo who is helping coordinate the effort.  We must have the US employer involved. 

AUGUST 2020 VISA BULLETIN: EB3 JUMPS ONE FULL YEAR

The Department of State has just issued the August 2020 Visa Bulletin. This is the eleventh Visa Bulletin of Fiscal Year 2020. This blog post analyzes this month's Visa Bulletin.

August 2020 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.

Employment- based	All Other	CHINA	INDIA	PHILIPPINES
1st	C	08FEB18	08FEB18	C
2nd	C	15JAN16	08JUL09	C
3rd	01APR19	15FEB17	01OCT09	01APR19

MU Law Analysis

This Visa Bulletin continued the big progressions that we saw in the June and July Visa Bulletins.  MU Law has been calling on the DOS to rapidly advance the dates so that all immigrant visas are used in 2020, and they finally responded in a big way.  The big story is the one-year progression Worldwide EB-3 and Philippines EB-3.  These EB-3 dates are now at April 2019.

The good news was not limited to those categories.  India EB-1 and India EB-3 also jumped forward.  EB-1 moved ahead ten months to February 2018, and EB-3 by five months, to October 2009.  Only India EB-2 disappointed, staying at July 8, 2009.  India EB-2 and EB-3 are inverted.  MU Law expects India EB-2 and EB-3 to move in sync for the foreseeable future.  EB-2s will downgrade their petitions to EB-3 to take advantage of the more favorable processing date, leading to an equilibrium between the two categories. 

All of the China categories moved forward as well, as expected in a year where few immigrant visa have been issued. 

MU Law expects the favorable employment-based visa dates to continue next fiscal year.  We explained why on this blog post.

PRESIDENT TRUMP RESCINDS GUIDANCE REQUIRING IN-PERSON CLASSES FOR FOREIGN STUDENTS

The Trump administration is rescinding its new guidance blocking international students from staying in the United States while taking only online classes.

The U.S. District Court Judge announced July 14, 2020 that the government and plaintiffs had reached a resolution in a lawsuit brought by Harvard University and MIT.

The Trump Administration will rescind its July 6 rule that said foreign students on F-1 visas would need to take at least some in-person courses in order to legally remain in the U.S. for the fall 2020 semester.

Seventeen states and the District of Columbia had sued the Trump Administration over the guidance.  The Trump Administration received heavy criticism from both colleges and universities as well as members of Congress for the policy.  Late last week 99 members of Congress sent a letter to the Department of Homeland Security and Immigration Customs Enforcement urging the agencies to withdraw the new guidance.

SEVP ANNOUNCES STUDENTS MAY NOT REMAIN IN THE US IF ENROLLED IN A FULLY ONLINE SCHOOL OR PROGRAM FOR FALL 2020 SEMESTER

On July 6, 2020, ICE’s Student and Exchange Visitor Program (SEVP), announced that for the Fall 2020 semester, it would prohibit F-1 students from attending fully online schools or programs and taking a full online course load in the United States. Students attending fully online schools or programs may only do so from outside the U.S., but can remain Active in the Student and Exchange Visitor Information System (SEVIS).

If a student is outside the U.S., he or she may not enter the U.S. on F-1 status if the student’s school or program is operating entirely online. This applies even if a student has already obtained a Form I-20 for the Fall 2020 semester.

A student may study in the U.S. if they transfer to a school that consists entirely of in-person classes or a hybrid model (combination of both in-person and online classes). However, the student must depart the U.S. or transfer again if the school changes to a fully online model at any point during the Fall 2020 semester. If students are not in compliance with the new guidance, deportation proceedings may be initiated against them.

By August 4, 2020, designated school officials (DSOs) must update and reissue ALL Form I-20s that have been issued for the Fall 2020 Semester to certify the school meets the requirements of the new guidance.

DHS will publish this rule shortly which could clarify some of the situations faced by students that are not addressed in ICE’s press release. In particular, the current guidance does not address the effect of the new guidance on students employed on Optional Practical Training (OPT).  On July 8, Harvard and MIT filed a lawsuit against DHS and ICE seeking a temporary restraining order of the new guidance, and on July 9, 99 members of Congress sent a letter to DHS and ICE urging the agencies to withdraw the new guidance.

FAQ REGARDING PRESIDENT TRUMP’S RECENT VISA BAN

President Trump issued a Presidential Proclamation stop the issuance of H-1B, L-1, J-1, and H-2B and dependent visa stamps at Embassies until December 31, 2020.  For a detailed analysis of the visa of the Proclamation and the visa classifications impacted, please review our previous blog post.

On our June 30, 2020 webinar we reviewed several situations in which visa holders may now find themselves due to the Proclamation.  Below is an FAQ to help employers and employees navigate travel and visa issues under the Proclamation.

Q: My employee is in the US on an H-1B right now.  The employee does not have a valid visa stamp in her passport.  Can the employee leave the US?

A: NO – H-1B workers who are in the US and do not have a valid visa stamp should not travel outside the US.  Without a valid visa stamp, the worker will not be allowed back into the US.

Q: I have a valid visa stamp in my passport.  Can I travel overseas?

A: YES – Those who are in the US and have a valid visa stamp can travel abroad, provided they return to the US before the expiration of their visa stamp.

Q: My employee is overseas and had an appointment at the Embassy to get a visa stamp in July 2020.  Will my employee be able to return to the US?

A: NO – Visa stamps in the effected categories will not be issued until after January 1, 2021, or perhaps later.

Q: My employee’s spouse and child are outside the US for their regular summer visit to their home country.  The spoues and child were able to visit the Embassy in May and obtain new visa stamps.  Will my employee’s spouse and child be able to return to the US?

A: YES - The spouse and child can enter the US if they have valid visa stamps in their passports.

Q: My employee is abroad right now and does not have a valid H-1B visa stamp in his passport.  However, he does have a valid B1/B2 tourist visa stamp in his passport, can he travel to the US on his B1/B2 stamp?

A: MAYBE - but this is not recommended.  The employee cannot work in tourist status so a change of status to H-1B would have to be filed once the employee enters the US.  The employee cannot return to work until this change of status is approved by the USCIS.

Q: My employee currently holds a green card.  She is outside the US and plans to return in July 2020.  Can she return on her green card?

A: YES – the April Proclamation exempts US Legal Permanent Residents from the ban.

Q: My company has filed a green card case for our future employee who is a nurse.  We are a staffing company and do not yet know at which of our client sites the nurse will be assigned to work.  Can the nurse enter the US?

A: MAYBE – Under current interpretation, the nurse may enter the US on a green card for any reason.  Later this summer, the Trump Administration may narrow the ban and require nurses to be treating patients who are currently hospitalized with Covid-19.

Q: My employee is currently in the US working for my company on OPT as an F-1 student.  My company has filed an H-1B for this employee which was selected in the H-1B lottery and is currently in process with the USCIS.  Will the H-1B be impacted by the ban?

A: NO – because this is a change of status from F-1 to H-1B, the employee will not be impacted.  However, the employee should not travel outside the US, as he will not be able to get an H-1B visa stamp and return.

Q: My employee is in the US on an H-1B and has no plans to travel.  Can I sponsor this employee for a green card?

A: YES – the there is no prohibition against filing green card cases from inside the US.  Employees can still “adjust status.”

Q: My employee holds an H-1B that will expire later this year.  Can I file an extension of the employee’s H-1B status?

A: YES – the there is no prohibition against filing for an extension, amendment, or transfer of an H-1B. 

WHAT DOES THIS NEW PRESIDENTIAL PROCLAMATION MEAN FOR MY EMPLOYEES?

MU Law will be hosting a free webinar for our clients and friends on Tuesday, June 30, 2020 at 2PM Eastern (1PM Central).
 

This webinar will discuss the NEW Proclamation issued by President Trump suspending entry of immigrants and nonimmigrants until the end of 2020. Interested clients and friends can register for our webinar by clicking on the link below.

REGISTER HERE

Your Questions Answered, including:

• What types of cases are impacted?
• My employee’s status expires this fall, can it be extended? Or will the employee have to stop working?
• What should I do if my employee needs to travel?
• What can I do if my employee is currently outside the US and needs to return?
• My employee’s spouse and children went home for summer vacation, will the family be allowed back into the US?
• Can I file a green card case for my employee who is in the US?
• Is my employee eligible for a waiver from the proclamation?

PLEASE JOIN US!

TRUMP ISSUES WIDE RANGING EXECUTIVE ORDER BANNING NEW LEGAL EMPLOYMENT BASED IMMIGRANTS UNTIL 2021

Last night, President Trump updated and expanded his April Presidential Proclamation that had banned legal immigrant visas for 60 days.  Last night’s ban extends the April legal immigration ban through December 31, 2020 and adds many temporary employment-based nonimmigrant visas, including H-1Bs, L-1s, J-1s, and H-2Bs. 

It seems certain that the President will be sued and so any information contained here is subject to the outcome of the lawsuits.

The ban effects many types of employment-based immigration, such as:

Green Cards (Immigrant visas) Consular Processing. 

All Consular Processing green cards continue to be banned, as they have been since April.  There are a few exceptions:

• Permanent Residents of the US;
• Healthcare workers and their immediate family members (including those family members traveling with the healthcare worker and those family members coming to the US at a later date);
• Other individuals coming to the US to perform work essential to combating, recovering from, or alleviating the effects of Covid-19 and their immediate family members (including those family members traveling with the healthcare worker and those family members coming to the US at a later date).
• Spouses and children of US Citizens;
• EB-5 investors;
• Individuals who are entering to assist law enforcement or who are members of the US Armed Forces;
• Special Immigrants in the SI or SQ Class and their family members; and
• Any person whose entry is in the national interest of the US as determine by the Secretary of State or Secretary of Homeland Security.

Green Cards (Immigrant visas) Adjustment of Status

No effect whatsoever.  Many Adjustment of Status interviews, of course, have been delayed because of COVID-19, although we have seen that the USCIS is approving some employment based green cards without an actual visa interview.

H-1B, L-1, J-1, and H-2B visas

• Beneficiaries approved for H-1B and L-1s will not be allowed to enter the US unless they currently have a valid visa stamp, even if they have an approved I-797.
• H-1B and L-1 visa stamps cannot be granted at embassies or consulates unless the H-1B or L-1 is for one of the exemption categories below. 
• If you have an H-1B or L-1 approval and you are in the US, you should not travel outside the US unless you already have a valid H-1B visa stamp in your passport and you intend to return to the US prior to the expiration of that visa stamp.
• H-1B and L-1 amendments, extensions, and transfers continue to be permissible.
• H-1B cap petitions that are based on a change of status (e.g. F-1 to H-1B) should be approved with a new I-94 card for the H-1B status.  The ban does not prohibit or effect the change of status, however, individuals changing status to H-1B should not leave the US after October 1 as they will not be able to return without a valid H-1B visa stamp.  
• Similar prohibitions apply to J-1 and H-2B visas, although the J-1 visa ban is limited to interns, trainees, teachers, camp counselors, au pairs, and summer work programs.  Other J-1s may obtain visas and enter the US.
• The ban also applies to the H-4, L-2, J-2 dependent classifications.  Spouses and children in the US as dependents should not travel abroad unless each family member has a valid visa stamp in their passport.  Dependents who are currently abroad will not be allowed to enter the US unless they currently have a valid visa stamp.

Exemptions to the H-1B, L-1, J-1, and H-2B nonimmigrant visa ban

The visa ban does not apply to:

• any lawful permanent resident of the United States;
• any alien who is the spouse or child of a United States citizen;
• any alien seeking to enter the United States to provide temporary labor or services essential to the United States food supply chain; and
• any alien whose entry would be in the national interest as determined by the Secretary of State or the Secretary of Homeland Security.

National Interest Entry Requests

The Proclamation allows for exemptions to the nonimmigrant visa ban if the Beneficiary is one of several categories deemed by DOS or DHS to be “in the national interest”.  It is expected that the DOS and DHS will issue details about these exemptions and the process to request an exemption.  The Proclamation’s named categories include those who:

• are critical to the defense, law enforcement, diplomacy, or national security of the United States;
• are involved with the provision of medical care to individuals who have contracted COVID-19 and are currently hospitalized;
• are involved with the provision of medical research at United States facilities to help the United States combat COVID-19;
• are necessary to facilitate the immediate and continued economic recovery of the United States; or
• are children who would age out of eligibility for a visa as a result of the visa ban.