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.  

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. 

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.