JANUARY 2021 VISA BULLETIN: ANALYSIS AND PREDICTIONS

The Department of State has just issued the January 2020 Visa Bulletin. This is the fourth 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	01SEP19	01SEP19	C
2nd	C	01JUN16	01OCT09	C
3rd	C	05DEC17	15MAR10	C

 

Table B: Dates of Filing

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

MU Law Analysis

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.

India had another month defined by variance.  India EB-1 moved ahead five more months, after six months in December.  Unfortunately, India EB-2 and EB-3 each moved ahead by only one week.  These slow progressions, along with the large number of India EB-2 and EB-3 filings in October, November, and December, probably means that no further material progress will happen in India EB-3 for a long time.

China EB-2 and EB-3 again both moved forward by a few weeks, a trend that may continue.  China EB-1 showed more progress than expected, perhaps because of declining rates of visa issuance out of the American posts in China.

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

 

FEDERAL JUDGE BLOCKS TRUMP ADMINISTRATION’S ATTEMPT TO DISMANTLE LEGAL IMMIGRATION

In a striking rebuke of the Trump Administration’s attempts to dismantle legal immigration, the U.S. District Court for the Northern District of California has set aside both (i) the DHS interim final rule (IFR), Strengthening the H-1B Nonimmigrant Visa Classification Program, and (ii) the DOL IFR, Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States.

This twin-killing of Trump policy does several things:

• It reinstates the prior DOL OES wage survey back to the formula that has been in place for more than a decade.
• It resets H-1B law, allowing third-party placement, three year-approval notices and a fuller range of approvable H-1Bs. 

The Court’s decision, which was issued last night, said that, the Administration, "failed to show there was good cause to dispense with the rational and thoughtful discourse that is provided by the APA's notice and comment requirements.”  MU Law will provide updates as more information is available.

DECEMBER 2020 VISA BULLETIN: ANALYSIS AND PREDICTIONS

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

December 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	01APR19	01APR19	C
2nd	C	01MAY16	01OCT09	C
3rd	C	01NOV17	15MAR10	C

 

Table B: Dates of Filing

The USCIS again 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.  However, if they are natives of India or China, their priority date must be earlier than these dates:

Employment Based	CHINA-mainland	INDIA
1st	01NOV20	01NOV20
2nd	01OCT16	15MAY11
3rd	01JUN18	01JAN15

 

MU Law Analysis

Unlike last month, the DOS issued a timely Visa Bulletin for December. 

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.

India had another month defined by variance.  India EB-1 moved ahead six months.  India EB-2 and EB-3 each moved ahead by about 1-2 weeks.  The interesting news was that the Dates of Filing for India EB-3 retrogressed by a year, reflecting the fact that an enormous number of India EB-3 I-485s have been filed in October and November.  This retrogression probably means that no further material progress will happen in India EB-3 for a long time.

China EB-2 and EB-3 both moved forward by a few weeks, a trend that may continue.  China EB-1 showed more progress than expected, perhaps because of declining rates of visa issuance out of the American posts in China.

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

 

UPDATE: SCHEDULED WEBINAR PLATFORM CHANGED

The platform for MU’s webinar scheduled for Monday, November 16th at 2PM Eastern (1PM Central) discussing the Recap of Changes from the USCIS, DOL, AND DOS has changed from Livestorm to Zoom.

  
If you have already registered for Monday’s webinar, you will receive an email with your invite to the Zoom webinar. If you had not previously registered, you can still join the webinar. Click on the Join the Webinar below.  No registration required.

Join the Webinar

UPDATE: SCHEDULED WEBINAR PLATFORM CHANGED

The platform for MU’s webinar scheduled for Monday, November 16^th discussing the Recap of Changes from the USCIS, DOL, AND DOS has changed from Livestorm to Zoom.

  
If you have already registered for Monday’s webinar, you will receive an email with your invite to the Zoom webinar. If you have not yet registered, there is still time to register by clicking on the link below.

REGISTER HERE

DHS Proposed Rule to Select only the Highest Wages in H-1B CAP

On November 2, 2020, DHS published in the Federal Register its proposed new rule for the 2021 CAP that would give priority to H-1B CAP candidates whose employer promises to pay the highest of the Occupational Employment Statistics (OES) wage levels. 

The OES categorizes wages from Levels I through IV for a particular position in a Metropolitan Statistical Area (MSA). In the H-1B context, the employer then chooses the appropriate wage level based on the experience and complexity of the position and can file a Labor Condition Application (LCA) using the OES wage assigned. 

According to the DHS’s proposed rule, only those H-1B CAP registrations offering the highest OES wage levels would be selected for filing in the 2021 CAP. This means that DHS would first accept Level IV wages, then Level III, etc. 

Keeping with the 2020 CAP changes, the USCIS’s current intent is to continue its electronic pre-registration system, requiring first a registration period of CAP petitions, and a later period of filing. DHS’s proposed rule intends to add a wage level question to its pre-registration form so that only the highest wage levels are selected for filing. 

The Master’s CAP, an allotment of 20,000 H-1Bs designated only for candidates possessing a master’s degree from an accredited U.S. university, is also in place for the 2021 CAP period. 

The proposed rule is currently accepting comments from the public until December 2, 2020, to which DHS will then respond and may alter some elements of the rule.

 

 

RECAP OF CHANGES FROM THE USCIS, DOL, AND DOS

MU Law will be hosting a free webinar for our clients and friends on Monday, November 16, 2020 at 2PM Eastern (1PM Central). Interested clients and friends can register for our webinar by clicking on the link below.

REGISTER HERE

Join us for this FREE webinar to learn more about:

• The new USCIS rule on qualifying for H-1B
• The new DOL rule on wage calculations and alternative wage surveys
• Pending law suits on the new H-1B and wage rules
• The new USCIS rule on the H-1B lottery system
• The Public Charge rule
• The Visa Bulletin
• The new USCIS rule on F-1 duration of status
• Post-Election debrief and a look forward

PLEASE JOIN US!

DOL WAGES: LAWSUITS AND ALTERNATIVE SURVEYS

DOL WAGES: LAWSUITS AND ALTERNATIVE SURVEYS

At our recent webinar, MU attorneys discussed the new DOL wage rule and how it could greatly raise prevailing wages for H-1B petitions and EB-2 and EB-3 green cards.  More on this topic here.   We want to give our clients and friends two updates: 

1.   Lawsuit.  MU along with some clients and the US Chamber of Commerce have been working on a lawsuit against both the DOL and the USCIS.  US Chamber of Commerce press release.  The lawsuit seeks to overturn both the new DOL wage computation used in their OES wage survey, and the three harsh changes to the H-1B definition.  The lawsuit was filed last week and there is a hearing on the case set for November 23.  If successful, the DOL and USCIS regulations could be nullified. 

2.   Alternative Wage Surveys.  The new DOL rule only raises the OES survey, which is the default survey used in H-1B cases, and in PWDs, which are used in EB-2 and EB-3 green card petitions.  The law still allows “alternative surveys.”  An alternative survey is any published or private survey that meets common statistical metrics, is recent, is geographically relevant, and covers the position in question.  

MU has identified several surveying companies that can be used for problematic wages.  As MU works your cases, we will let you know if we think that a survey may be a strategy worth pursuing.

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: 

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.

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!

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.

On September 30, 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

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 website. 

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.”

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.