NOVEMBER 2020 VISA BULLETIN: LATE PUBLICATION, BUT EXCELLENT NEWS

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

November 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	01DEC18	01DEC18	C
2nd	C	22APR16	22SEP09	C
3rd	C	01OCT17	01MAR10	C

 

Table B: Dates of Filing

Importantly, the USCIS 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: 

Employment Based	CHINA-mainland	INDIA
1st	1-Sep-20	1-Sep-20
2nd	1-Oct-16	15-May-11
3rd	1-Jun-18	1-Jan-15
Other Workers	1-May-09	1-Jan-15

MU Law Analysis

For reasons that remain unclear the Department of State held back on publishing this Visa Bulletin about 2 weeks longer than usual.  Nevertheless, the Visa Bulletin showed continued positive trends. 

Both the Philippines and Worldwide (All Other) EB-3 continue to be 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.  It remains to be seen how increasing COVID infection rates bear on embassies capacities.

The good news extended to India.  India EB-1, EB-2 and EB-3 all moved forward, ranging from several weeks to several 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.

MU expects that future Visa Bulletins will continue to have positive news, including continued forward progression in the Chinese and Indian categories.  We also expect the Philippine and Worldwide categories will remain current for the foreseeable future.

IMPLICATIONS OF THE NEW DEPARTMENT OF LABOR WAGE LEVELS

Effective October 8, 2020, the Department of Labor (DOL) issued a new rule dramatically increasing prevailing wages for H-1B, EB-2, and EB-3 workers.  The new rule changes the computation of the four levels of wages when the DOL is using the Occupational Employment Statistics (OES).  For more detail about these changes, you can read our previous blog post on the rule.

A prevailing wage determination can only be issued by the DOL. The prevailing wage is based on the job duties, job requirements, and job location as provided by the employer on a prevailing wage request.  The prevailing wage for an H-1B, EB-2, or EB-3 worker, is the wage the foreign national is required to be paid by his or her employer upon approval of the H-1B or green card.

Frequently, employers and foreign nationals review the Foreign Labor Certification (FLC) Data Center website which publishes the OES wages and refer to the OES wages as the “prevailing wages.” The FLC Data Center wages are not prevailing wages. A prevailing wage determination (PWD) can only be issued by the DOL.

The OES is only one wage library the DOL can consult when issuing a PWD.  The DOL can also review private wage surveys, if the survey is provided by the employer at the time the wage request is made.  In order for a private wage survey to be accepted by the DOL, it must meet certain, specific requirements.  For more information about those requirements and which surveys might apply to your cases, please contact MU.

The new DOL wage rule only applies to wage determinations issued by the DOL or LCAs certified by the DOL on or after October 8, 2020.  Approved H-1Bs or I-140s are not required to be updated with the new wage calculations.  In addition, wage determinations which have been issued by the DOL and are valid through 2021 are not required to be updated.

Finally, there are several law suits which have already been filed challenging the new rule.  Please continue to read our blog for regular updates on these pending law suits and the wage rule. 

REMINDER - OVERVIEW OF UPDATES FROM THE USCIS, DOL, AND DOS

MU Law will be hosting a free webinar for our clients and friends on Monday, October 12, 2020 at 2PM Eastern (1PM Central).  Interested clients and friends can register for our webinar by clicking on the link below.

 REGISTER HERE

Are you feeling dizzy from all the changes in immigration lately?  Join us for this FREE webinar to learn more about:

• Furloughs at USCIS
• Recap of the Presidential Proclamations from April and June 2020
• 221Gs from the US Embassy in Manila
• The Public Charge Rule
• October Visa Bulletin
• EB2 to EB3 Downgrading options for Indian and Chinese nationals
• Detailed Risk Analysis of I-140 Amendments
• USCIS Fee Increases
• New Department of Labor rule regarding prevailing wage calculations
• New USCIS rule regarding qualification for H-1B

 

PLEASE JOIN US!

REMINDER - OVERVIEW OF UPDATES FROM THE USCIS, DOL, AND DOS

MU Law will be hosting a free webinar for our clients and friends on Monday, October 12, 2020 at 2PM Eastern (1PM Central).  Interested clients and friends can register for our webinar by clicking on the link below.

 REGISTER HERE

Are you feeling dizzy from all the changes in immigration lately?  Join us for this FREE webinar to learn more about:

• Furloughs at USCIS
• Recap of the Presidential Proclamations from April and June 2020
• 221Gs from the US Embassy in Manila
• The Public Charge Rule
• October Visa Bulletin
• EB2 to EB3 Downgrading options for Indian and Chinese nationals
• Detailed Risk Analysis of I-140 Amendments
• USCIS Fee Increases
• New Department of Labor rule regarding prevailing wage calculations
• New USCIS rule regarding qualification for H-1B

 

PLEASE JOIN US!

OVERVIEW OF UPDATES FROM THE USCIS, DOL, AND DOS

MU Law will be hosting a free webinar for our clients and friends on Monday, October 12, 2020 at 2PM Eastern (1PM Central).  Interested clients and friends can register for our webinar by clicking on the link below.

 REGISTER HERE

Are you feeling dizzy from all the changes in immigration lately?  Join us for this FREE webinar to learn more about:

• Furloughs at USCIS
• Recap of the Presidential Proclamations from April and June 2020
• 221Gs from the US Embassy in Manila
• The Public Charge Rule
• October Visa Bulletin
• EB2 to EB3 Downgrading options for Indian and Chinese nationals
• Detailed Risk Analysis of I-140 Amendments
• USCIS Fee Increases
• New Department of Labor rule regarding prevailing wage calculations
• New USCIS rule regarding qualification for H-1B

 

PLEASE JOIN US!

DOL AND USCIS DRAMATICALLY ALTER EMPLOYMENT BASED IMMIGRATION

In two sweeping and lengthy regulations the USCIS and DOL have attempted to jam through last minute rules that dramatically alter employment-based immigration.  The DOL rule takes effect on Thursday October 8. The USCIS rule will take effect in 60 days. Both rules are expected to be challenged in court.

DOL Rule

The DOL rule dramatically increases prevailing wages for H-1B and EB-2 and EB-3 workers.  The rule changes the computation of Level I, II, III, and IV.  Current Prevailing wages use this formula:

Level            US wage percentile
I                  17
II                 34
III                50
IV                67

The new rule changes the formula:

Level            US wage percentile

I                  45
II                 62
III                78
IV                95

USCIS Rule

The new USCIS regulation will be published on October 8 and take effect 60 days later. It applies only to petitions filed on or after the effective date.
The rule implements several changes:

• It revises the H-1B definition of “specialty occupation” in a very limiting way.  This new regulation seeks to rewrite the approvability of H-1B visas. The USCIS has consistently lost in federal court because it has repeatedly misapplied its own definition of specialty occupation.  This regulatory change seeks to reduce the likelihood of the USCIS losing on this issue in federal court.

• The new rule limits third-party placement H-1B validity to one-year increments.  There does not appear to be any statutory justification for this change other than the USCIS’ own belief that third-party placements cause more fraud.  As with the rewrite of the specialty occupation rule, this regulatory change seeks to reduce the likelihood of the USCIS losing on this issue in federal court.

• It also reimposes contract and itinerary requirements in H-1B petitions, which had been ruled illegal by several federal courts.  Again, the USCIS seeks to reduce the likelihood of the USCIS losing on this issue in federal court.

Musillo Unkenholt will shortly have more detail about these two massive new changes.

CONSIDERATIONS WHEN DOWNGRADING FROM EB2 to EB3

Following the USCIS’s announcement in late September that it will accept the favorable October FY 2021 visa bulletin filing dates, many candidates have seen a significant improvement in their chances to file a long-awaited adjustment of status (I-485) application. 

In the October visa bulletin, all categories besides India and China are current. Notably, China’s and India’s EB3 categories give eligibility to file to priority dates that are more recent than those of the EB2 category. 

There are three options for those looking to downgrade their I-140:

   1. Amending the existing I-140: An I-140 amendment is a request that the USCIS reopen the EB2 case and convert the EB2 I-140 to an EB3 I-140.  The USCIS will again review the EB2 I-140 and, if the amendment is approved, convert the EB2 to EB3.  If the EB3 dates later retrogress, a new I-140 will have to be filed to obtain an EB2 priority date.

2. Filing a new I-140: A new I-140 includes a new wage request, a new Notice of Filing posting, a new labor market test and a new Labor Certification (when required).  A new I-140 may be required if the employee has moved to a new worksite, new position, or new employer and cannot return to the worksite, position, or employer listed on the approved I-140.  Once the new I-140 is approved, if the employee’s priority date is current, he/she can file an I-485. 

3. Filing a second I-140: A second I-140 can be filed in PERM case (one that requires a labor market test) with an expired Labor Certification.  If an I-140 is filed during the six month validity period of a Labor Certification, the Labor Certification becomes valid indefinitely and can be re-used in subsequent I-140s.  A note that the USCIS will only accept an expired Labor Certification if it was certified by the Department of Labor, so this option is not available in Schedule A cases for PTs and RNs. 

Given the current “flip-flopped” EB3 vs. EB2 priority dates, below are MU’s “need-to-know” points for Chinese and Indian nationals considering an EB2 to EB3 “downgrade”:

•  Will EB3 filing dates always be more favorable than EB2 filing dates?

The visa bulletin changes every month; there is no guarantee that the visa bulletin categories will remain the same for November or any of the following months. For this reason, it is unclear whether EB2 or EB3 will move faster in the coming months or years.

•  Premium Processing

Premium Processing is generally not available when filing a second I-140. However, in some cases, the USCIS may accept a Premium Processing request.  Premium processing is usually available when filing an amendment or new I-140.

•  Can I retain both an EB2 and EB3 I-140 approval simultaneously?

Yes, you can hold two approved I-140s. Those filing for an EB3 downgrade by submitting a new or a second I-140 will retain an EB2 I-140, and hold the EB3 I-140 once it is approved. If the EB3 downgrade is filed as an I-140 amendment to the EB2 petition, the USCIS will convert the EB2 priority to an EB3 priority and the EB2 will no longer be viable.

•  Medical Exams

Medical exams must be submitted to the USCIS within 60 days of the physician’s signature and, once filed with the USCIS, are valid for 2 years.  If the I-485 approval is not issued within 2 years, the applicant will have to get a new medical exam.  The I-485 can be filed now – without a medical exam - and the USCIS will issue an RFE or a letter of deficiency later in the process and ask for the medical exam at that time. 

• Child Status Protection Act (CSPA) Considerations

Because the USCIS is accepting the rarely used Filing Dates chart, beneficiaries should be reminded that the privileges of the Child Status Protection Act (CSPA) do NOT extend to filing dates. If you have a foreign-born child nearing the age of 21, please contact your MU attorney immediately.

• Filing EB3 I-140 concurrently with I-485

Applicants will want to weigh the costs at risk by filing a concurrent I-485. By first filing the I-140 and securing an approved I-140 prior to filing an I-485, the beneficiary and employer avoid the risk of having the I-485 automatically denied because of a denial of the I-140. Keep in mind that an automatic denial of an I-485 when filing concurrently means that none of the associated filing fees will be refunded.

USCIS FEE INCREASES SET FOR OCTOBER 2, 2020 HALTED

On September 29, 2020, a District Court Judge in California stopped the USCIS from implementing their new fee rule set to go into effect on October 2, 2020. 

USCIS announced that the USCIS will not implement their new fee rule on October 2, 2020, including the new USCIS filing fees and new USCIS form versions.

The current USCIS filing fees and forms should be used until a decision is issued in this case. 

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.