AUGUST 2021 VISA BULLETIN: ANALYSIS AND PREDICTIONS

AUGUST 2021 VISA BULLETIN: ANALYSIS AND PREDICTIONS

The Department of State has just issued August Visa Bulletin.  This is the eleventh Visa Bulletin of Fiscal Year 2021. 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-Apr-18	1-Jun-11	C
3rd	C	8-Jan-19	1-Jul-13	C

Table B: Dates of Filing

The USCIS will be using the Table A: Final Action Dates chart for I-485 employment-based filings. A beneficiary must be current on the above Table A chart in order to file their I-485, Adjustment of Status applications  USCIS Visa Bulletin Dates

MU Law Analysis

Both the Philippines and Worldwide (All Other) EB-3 continue to be current. Our opinion remains that these categories will stay current for the foreseeable future and into 2022.

EB-1 remains current for all categories.  This will certainly be the case for the rest of the fiscal year.  India EB-2 did not move, which shows that the demand for this category remains strong.  On the other hand, India EB-3 moved ahead by six months in spite of widespread reports of downgrades from EB-2 to EB-3.  This could mean that the reports are overblown.

China EB-2 showed a four month advancement, but EB-3 only advanced one week, a reverse of the situation for the Indian categories.

MU LAW BLOG SWITCHES EMAIL SUBSCRIPTION SERVICERS

Due to Google shuttering it’s feedburner service for email subscriptions, the Musillo Unkenholt Law Blog is transitioning over to use Follow.It as our new email subscription servicer. 

There shouldn’t be anything that needs to be done, but you will note that the subscribe widget on our blog has change to reflect this switch.

SIGN THE CHANGE.ORG PETITION FOR FOREIGN EDUCATED NURSES

Today, there are thousands of high-skilled international nurses who have already qualified for visas but their issuance has stalled amid unprecedented delays at US embassies and consulates, which have effectively de-prioritized green card approval for essential healthcare workers under US State Department rules.

Will you join thousands of people and sign a Change.org petition demanding the State Department fast-track nurse visas? 

SIGN THE PETITION

USCIS TO ISSUE 2 YEAR EADs

The USCIS has released updated policy guidance stating that it will grant EADs valid for 2 years to certain green card applicants including those applying based on an approved Form I-130 (family-based green card) or Form I-140 (employment-based green card).   

Both initial and renewal EAD applications will be eligible for the 2-year validity period. However, replacement EADs will not be issued for 2-year validity period but will rather be issued with the same validity dates as the original EAD that is being replaced.

The USCIS has historically issued EADs that are valid for a 1-year period to green card applicants. While there is generally no fee for a filing an EAD application for green card applicants, almost 370,000 green card related EAD applications were filed with the USCIS in fiscal year 2020. It is hoped that by issuing EADs valid for 2 years instead of 1 year, the USCIS will be able to redistribute limited resources to alleviate current processing backlogs.

JULY 2021 VISA BULLETIN: ANALYSIS AND PREDICTIONS

The Department of State has just issued the July 2020 Visa Bulletin.  This is the tenth Visa Bulletin of Fiscal Year 2021. 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.

Employment	All Chargeability	CHINA	INDIA	PHILIPPINES
1st	C	C	C	C
2nd	C	1-Dec-17	1-Jun-11	C
3rd	C	1-Jan-19	1-Jan-13	C

Table B: Dates of Filing

The USCIS will be using the Table A: Final Action Dates chart for I-485 employment-based filings. A beneficiary must be current on the above Table A chart in order to file their I-485, Adjustment of Status applications.  USCIS Visa Bulletin Dates

MU Law Analysis

Both the Philippines and Worldwide (All Other) EB-3 continue to be current. Our opinion remains that these categories will stay current for the foreseeable future and into 2022.

India EB-1 remains current, which continues to lead to extra visas will flowing down to India EB2 and EB3.  India EB-2 again moved ahead, this time by 6 months, a positive trend that has continued and can be expected to continue.  Similarly, India EB-3 leapt ahead 14 months.  We will see favorable processing times for the rest of 2021 and into 2022.

China EB-2 and EB-3 again both moved forward by seven and four months, respectively.  This trend should continue into 2022.  China EB-1 remains current.

USCIS RESCINDS POLICY THAT ALLOWED OFFICERS TO DENY A CASE INSTEAD OF ISSUSING A REQUEST FOR EVIDENCE

In 2013 USCIS issued a policy memorandum that allowed USCIS officers to issue a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) for a case that included insufficient evidence, before denying the case. 

In 2018 USCIS rescinded this 2013 policy and issued a new policy, stating that USCIS officers could deny a case for lack of initial evidence without first sending an RFE or NOID.

On June 9, 2021 USCIS issued a policy update, stating that the USCIS would revert back to the 2013 policy.  The USCIS will now issue RFEs and NOIDs where additional evidence could demonstrate eligibility for an immigrant benefit. This policy will give petitioners and beneficiaries the opportunity to correct mistakes and minor errors. This policy is effective immediately.

USCIS RECEIVES 308,613 H-1B CAP REGISTRATIONS

USCIS announced that it has received 308,613 H-1B cap registration during the March 2021 filing period, including petitions filed for the advanced degree exemption.  About 48% of the registrations were for foreign-national advanced degree students.

This is considerably more than the 275,000 received last year (March 2020, FY 2021).  It is also far more than the 201,000 during the April 2019 (FY 2020) filing period and 190,000 H-1B petitions received during the April 2018 (Fiscal Year 2019) filing period and.

USCIS is in the process of notifying H-1B cap lottery winners.  Based on the Congressional H-1B cap of 85,000 H-1B cap winners, Petitioners should expect about 27% of their H-1B cap filings to be H-1B cap winners because Congress only allows the USCIS to approve H-1B cap petitions.  H-1B winners have 90 days to submit their full H-1B cap petition to the USCIS. 

As has been the case since the launch of the on-line registration system in March 2020, the USCIS will continue to update the H-1B cap winners list.  Therefore, additional winners may be added throughout the spring and summer.  USCIS is not expected to contact any H-1B lottery losers until all 85,000 approval notices are issued.

USCIS UPDATES GUIDANCE ON EXPEDITED PROCESSING

USCIS has announced new guidance on when an application may be granted expedited processing.  Requests for expedited processing are considered by USCIS, on a case-by-case basis, when premium processing service is not available.  Generally, expedited requests are considered based on the following criterion:

-      Severe financial loss to a company or person;

-      Urgent humanitarian reasons;

-      Cultural and social interests of the United States; or

-      Clear USCIS error.

USCIS has clarified the criteria for requesting expedited processing. A company may request expedited processing when it has suffered severe financial loss due to a delay in processing. Companies can successfully demonstrate severe financial loss if they are at risk of failing, losing a critical contract, or required to lay off other employees. They can also demonstrate severe financial loss if a failure to expedite would result in a loss of critical public benefits.

Nonprofit organizations may now request expedited processing, even if premium processing is available. USCIS will grant nonprofit petitioners expedited processing, without a fee, provided they are designated as a nonprofit organization by the IRS and their requests are made in furtherance of cultural and social interests of the United States.

USCIS further reinforced that expedited requests for noncitizens with a final order of deportation or noncitizens in deportation proceedings, are still coordinated between USCIS and U.S. Immigration and Customs Enforcement (ICE). This updated policy is effective immediately.

JUNE 2021 VISA BULLETIN: ANALYSIS AND PREDICTIONS

The Department of State has just issued the June 2020 Visa Bulletin. This is the ninth Visa Bulletin of Fiscal Year 2021. 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.

Table B: Dates of Filing

The USCIS will be using the Table A: Final Action Dates chart for I-485 employment-based filings. A beneficiary must be current on the above Table A chart in order to file their I-485, Adjustment of Status applications. USCIS Adjustment of Status page.

MU Law Analysis

Both the Philippines and Worldwide (All Other) EB-3 continue to be current. Our opinion remains that these categories will stay current for the foreseeable future.

India EB-1 remains current, which continues to lead to extra visas will flowing down to India EB2 and EB3.  India EB-2 again moved ahead, this time by 4 months, a positive trend that has continued.  EB-3 also jumped up.  It moved 4 months.  We will see favorable processing times for the rest of 2021.

China EB-2 and EB-3 again both moved forward by a few months, a trend that should continue. China EB-1 remains current, reflecting the paucity of visas that were issued under the last year of the Trump presidency and the COVID pandemic.

USCIS Temporarily Suspends Biometrics Requirements for H-4 and L-2 Applicants

The USCIS has announced that it will temporarily suspend the biometrics requirements for H-4, L-2, E-1, E-2, and E-3 applicants. The suspension will last from May 17, 2021 until May 17, 2023, and will apply to H-4, L-2, E-1, E-2, and E-3 applicants with a pending Form I-539 who have not yet received a biometrics appointment notice as of May 17, 2021, and new applications for H-4, L-2, E-1, E-2, and E-3 received by USCIS from May 17, 2021 until May 17, 2023.

Applicants who receive a biometrics appointment notice before May 17, 2021 should plan to attend the appointment. Additionally, the USCIS retains the discretion to require biometrics on a case-by-case basis for any applicant. The USCIS is not expected to refund the $85 biometrics fee for applicants who are not required to attend the biometrics appointment.

The USCIS’s announcement comes as part of an ongoing lawsuit over long processing times for H-4 and L-2 employment authorization documents (EAD). It is hoped that the suspension of the biometrics requirements will help to address the backlog of pending Form I-539s and associated EAD applications.

US EMBASSIES TO USE TIERED APPROACH TO WORK ON BACKLOG

U.S. embassies and consulates have begun using a tiered approach to manage their substantial backlog of immigrant visas.  Many embassies and consulates continue to have a significant backlog of all categories of immigrant visas.

 

Tier One: Immediate relative intercountry adoption visas, age-out cases (cases where the applicant will soon no longer qualify due to their age), and certain Special Immigrant Visas (SQ and SI for Afghan and Iraqi nationals working with the U.S. government)

 

Tier Two: Immediate relative visas; fiancé(e) visas; and returning resident visas

 

Tier Three: Family preference immigrant visas and SE Special Immigrant Visas for certain employees of the U.S. government abroad

 

Tier Four: All other immigrant visas, including employment preference and diversity visas

While the Posts will generally use these tiers in order, where possible, Posts are scheduling some appointments within all four priority tiers every month.  Still the State Department recognizes that visa applicants, “particularly those in Tiers Three and Four, will face continued delays.”

MAY 2021 VISA BULLETIN: ANALYSIS AND PREDICTIONS

The Department of State has just issued the May 2020 Visa Bulletin. This is the eighth Visa Bulletin of Fiscal Year 2021. 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.

Employment- based	All Other	CHINA	INDIA	PHILIPPINES
1st	C	C	C	C
2nd	C	01DEC16	01AUG10	C
3rd	C	15MAY18	01FEB11	C

 

Table B: Dates of Filing

The USCIS will be using the Table A: Final Action Dates chart for I-485 employment-based filings. A beneficiary must be current on the above Table A chart in order to file their I-485, Adjustment of Status applications.  USCIS Adjustment of Status page.

MU Law Analysis

Both the Philippines and Worldwide (All Other) EB-3 continue to be current. Our opinion remains that these categories will stay current for the foreseeable future.

India EB-1 remains current, which continues to lead to extra visas will flowing down to India EB2 and EB3.  India EB-2 again moved ahead, this time by 3 months.  EB-3 also jumped up.  It moved 6 months, into 2011.  We could see favorable processing times for the rest of 2021.

China EB-2 and EB-3 again both moved forward by a few months, a trend that should continue.  China EB-1 remains reflecting the paucity of visas that were issued under the last year of the Trump presidency and the COVID pandemic.

CGFNS MUST ISSUE CERTIFIED STATEMENTS TO US-EDUCATED BSNs

CGFNS has a fast-track “Certified Statement” Visa Screen for foreign nurses who are educated in the US, and a few other English speaking countries (see below). 

Franklin University, an Ohio college, offers graduate nursing degree, such as Bachelors of Science in Nursing (BSN) to foreign nurses who received a 2 year degree in other countries, such as the Philippines.  CGFNS was trying to force these BSNs to file for the more expensive and time consuming regular Visa Screen, instead of the Certified Statement.  

Franklin University tried to convince CGFNS that making these nurses apply for the costlier and time-consuming process was contrary to the relevant USCIS’ regulation.  When CGFNS refused to allow these nurses to apply for the Certified Statement, Franklin University sued.  This week, the court held that CGFNS must issue Certified Statements to these US-graduates of BSNs. 

The countries are:  Australia, Barbados, Canada (including only the following approved Quebec schools: McGill University and Dawson College in Montreal, Vanier College in St Laurent, John Abbot College in Sainte-Anne-de-Bellevue, and Heritage College in Gatineau), Ireland, Jamaica, New Zealand, South Africa, Trinidad/Tobago, the United Kingdom (England, Northern Ireland, Scotland and Wales) 

PRESIDENTIAL PROCLAMATION BARRING NONIMMIGRANTS NOW EXPIRED

On March 31, 2021, Presidential Proclamation 10052 expired. PP 10052 prohibited the issuance of certain H-1B, H-2B, L-1, J-1, H-4, L-2, and J-2 visas for entry to the US at US Embassies and Consulates due to possible economic harm to the US during the COVID-19 Pandemic.

All consular processed cases falling under the criteria of PP 10052 may now resume processing. Any visa applicant previously refused a visa due to PP 10052 must reapply with a new application and new fee. However, many US embassies are still operating on reduced staff, due to the COVID-19 pandemic. Therefore, we anticipate that there will continue to be delays in obtaining nonimmigrant visa interviews at Embassies and Consulates.

DOS has updated its announcement and FAQs on the phased resumption of visa services  following the expiration of Presidential Proclamation 10052.

HEALTHCARE WORKFORCE RESILIENCE ACT REINTRODUCED INTO CONGRESS

Musillo Unkenholt is pleased to report that the Healthcare Workforce Resilience Act has been reintroduced into Congress.  The HWRA is smart, positive legislation that will increase the supply of nurses and doctors into the US.  These two occupations are among the shortest supplied occupations by US workers. Musillo Unkenholt and the AAIHR have been working closely with these offices for the last two months, assisting congressional staffers draft this legislation. 

If the HWRA becomes law, all nurses and doctors whose visa applications are currently retrogressed immediately become current.  Likewise, any nurse or doctor whose I-140 is filed before 90 days after the expiration of the President’s Emergency Declaration on COVID-19 is also expected to have a retrogression-free visa, although there is an overall quota of 25,000 visas for RNs and 15,000 visas for MDs. The legislation contains language asking the USCIS and Embassies and Consulates to expedite these petitions.  The HWRA admirably contains US worker protections, guaranteeing that no US worker is displaced. 

The HWRA has a strong set of original co-sponsors in the Senate: Sens. Durbin, Coons, Lehay (Ds) and Cornyn, Young, Collins (Rs). This is an impressive bipartisan set of Senators with decades of experience leading legislative initiatives.  Companion legislation will be introduced into the House by U.S. Representatives Brad Schneider (D-IL-10), Tom Cole (R-OK-04), Tom O'Halleran (D-AZ-01), and Don Bacon (R-NE-02). 

Specifically, the Healthcare Workforce Resilience Act:

* Recaptures unused visas from previous fiscal years for doctors, nurses, and their families

* Exempts these visas from country caps

* Requires employers to attest that immigrants from overseas who receive these visas will not displace an American worker

* Requires the Department of Homeland Security and State Department to expedite the processing of recaptured visas

* Limits the filing period for recaptured visas to 90 days following the termination of the President’s COVID-19 emergency declaration

IMPLEMENTATION OF DOL RULE INCREASING PREVAILING WAGES DELAYED

The US Department of Labor (DOL) has delayed the new rule which would change the method for calculating prevailing wages for 18 months. 

In October 2020, the DOL announced an Interim Rule which changed the computation of wage levels and dramatically increased prevailing wages.  The October 2020 Interim Rule was later struck down by the courts, but was later re-issued as a Final Rule in January 2021. 

On January 14, 2021 the DOL published its Final Rule regarding increases in prevailing wages for H-1B, H-1B1, E-3, and Green Card cases. You can find our blog post summarizing the Final Rule here.  

The Final Rule was initially set to take effect May 14, 2021 and wages issued after July 1, 2021 would be impacted. However, the DOL has postponed the effective date of the Final Rule by 18 months until November 14, 2022. The DOL delayed the start of the transition period to the new prevailing wage levels from July 1, 2021 to January 1, 2023. 

The DOL is implementing this delay to allow for more time to fully analyze the legal and policy issues raised by the rule, as well as to validate the prevailing wage data. This official delay is expected to be effective on March 22, 2021.

APRIL 2021 VISA BULLETIN: ANALYSIS AND PREDICTIONS

The Department of State has just issued the April 2020 Visa Bulletin. This is the seventh Visa Bulletin of Fiscal Year 2021. 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.

Employment- based	All Other	CHINA	INDIA	PHILIPPINES
1st	C	C	C	C
2nd	C	01SEP16	01MAY10	C
3rd	C	15MAR18	01SEP10	C

 

Table B: Dates of Filing

The USCIS will be using the Table A: Final Action Dates chart for I-485 employment-based filings. A beneficiary must be current on the above Table A chart in order to file their I-485, Adjustment of Status applications.  USCIS Adjustment of Status page.

MU Law Analysis

Both the Philippines and Worldwide (All Other) EB-3 continue to be current. Our opinion remains that these categories will stay current for the foreseeable future.

India EB-1 became current, which led to extra visas will flowing down to India EB2 and EB3.  Indeed, India EB-2 moved ahead almost a year and half into May 2011.  EB-3 also jumped up. It is now is 2014.  We could see favorable processing times for the rest of 2021.

China EB-2 and EB-3 again both moved forward, this time by months, a trend that should continue.  China EB-1 is now current reflecting the paucity of visas that were issued under the last year of the Trump presidency. 

PUBLIC CHARGE RULE RESCINDED

USCIS announced on March 9 that it will no longer apply the Public Charge Final Rule.  The Public Charge Final Rule was published in October 2019 and subjected all I-485 applicants to a wealth test, requiring applicants to list and document all assets and debts on Form I-944.  Effective March 9, I-485 applicants no longer need to submit Form I-944.  

USCIS will not review any I-944 forms already submitted, and applicants can disregard any aspect of a Request for Evidence of Notice of Intent to Deny that requests information related to the Public Charge Final Rule.  

The Public Charge Final Rule had also required nonimmigrant visa applicants to answer questions about the receipt of public benefits on applications for extension of stay or change of status.  Nonimmigrant visa applicants now no longer need to answer these questions relating to the receipt of public benefits.  

USCIS will revert to the prior guidance outlined in the 1999 Interim Field Guidance in place prior to the introduction of the Public Charge Final Rule.  

H-1B REGISTRATION WINDOW

Beginning March 2, 2021, H-1B Electronic Registration for cap-subject petitions will take place. While this marks the second year that USCIS has utilized electronic registration, the process remains much the same as last year. 

Employers that did not participate in last year’s electronic registration process will need to first create an H-1B Registrant account on MyUSCIS.  Employers that did participate last year will be able to utilize their existing account.  

The registration window will open at 12:00pm Eastern Time on March 9, 2021 and end at 12:00pm Eastern Time on March 25, 2021. During this window, all potential beneficiaries must be registered by their employer to be considered for H-1B selection in the cap.  

USCIS intends to inform employers by March 31, 2021 which beneficiaries were selected and full H-1B petitions may be filed no earlier than April 1, 2021. While the registration process only requires minimal information about each beneficiary, the beneficiary must meet all eligibility requirements at the time of filing the full H-1B petition. 

Please contact MU Law should you have any questions or require any assistance in filing H-1B cap-subject registrations.

PRESIDENT BIDEN RESCINDS PRESIDENTIAL PROCLAMATION PROHIBITING ENTRY OF IMMIGRANTS DUE TO COVID-19 PANDEMIC

On February 24, 2021, President Biden rescinded Presidential Proclamation 10014. PP 10014 prohibited the issuance of most immigrant visas (green cards) at US Embassies and Consulates due to possible economic harm to the US during the COVID-19 Pandemic.

All consular processed green card cases put on hold due to PP 10014 will now resume processing. However, many US embassies are still operating on reduced staff, due to the COVID-19 pandemic. Therefore, we anticipate that there will continue to be delays in obtaining green card interviews at Embassies and Consulates.

Although PP 10014 has been rescinded, Presidential Proclamation 10052 (PP 10052) suspending the entry of nonimmigrant workers due to the COVID-19 Pandemic remains in place. Specifically, PP 10052 applies to applicants applying for H-1B, H-2B, L-1, J-1, H-4, L-2, and J-2 visas for entry to the US.

In addition, the Department of State (DOS) updated its guidance related to National Interest Exemptions for individuals subject to PP 10052. The eligibility requirements have not changed, but the DOS has provided further details of which nonimmigrant visa applicants can qualify for National Interest Exemptions. PP 10052 is currently set to expire on March 31, 2021.