The platform for MU’s webinar scheduled for Monday, November 16th discussing the Recap of Changes from the USCIS, DOL, AND DOS has changed from Livestorm to Zoom.
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.
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.
Join us for this FREE webinar to learn more about:
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.
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- |
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.
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.
Are you feeling dizzy from all the changes in immigration lately? Join us for this FREE webinar to learn more about:
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.
Are you feeling dizzy from all the changes in immigration lately? Join us for this FREE webinar to learn more about:
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.
Are you feeling dizzy from all the changes in immigration
lately? Join us for this FREE
webinar to learn more about:
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.
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”:
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 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.
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 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.
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.
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.
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.
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- |
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.
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:
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.”
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.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.
|
Employment-
based |
All
Other
|
CHINA
|
INDIA
|
PHILIPPINES
|
|
1st
|
C
|
08FEB18
|
08FEB18
|
C
|
|
2nd
|
C
|
15JAN16
|
08JUL09
|
C
|
|
3rd
|
01APR19
|
15FEB17
|
01OCT09
|
01APR19
|
