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In 2018 USCIS rescinded this 2013 policy and issued a new policy, stating that USCIS officers could deny a case for lack of initial evidence without first sending an RFE or NOID.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

MAY 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.

Employment- based	All Other	CHINA	INDIA	PHILIPPINES
1st	C	C	C	C
2nd	C	01MAY17	01DEC10	C
3rd	C	01SEP18	1NOV11	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 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. 

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.

MARCH 2021 VISA BULLETIN: ANALYSIS AND PREDICTIONS

The Department of State has just issued the March 2020 Visa Bulletin. This is the sixth 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	01AUG20	01AUG20	C
2nd	C	15JUL16	15JAN10	C
3rd	C	08FEB18	01JUL10	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.

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 moved ahead 7 more months, which is about a year since December. India EB-2 and EB-3 each showed more progress than usual, but the progress is still underwhelming.  These slow progressions, along with the large number of India EB-2 and EB-3 filings in October, November, and December, probably means that we should only expect 1-4 week movements in India EB-2 or EB-3 for at least the rest of 2021.

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

 

REMINDER: H-1B CAP: LOTTERY AND REGISTRATION UPDATES UPDATES

MU Law will be hosting a free webinar for our clients and friends on Tuesday, February 16, 2021 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 H-1B CAP timeline for registration submissions

-      The H-1B Wage-Based Lottery Selection Rule now *canceled*

-      Recap of DOL Wage Rule and promo Alternative Wage Surveys

-      The H-1B Rule Requiring End-Clients to file LCAs or H-1Bs now *canceled*

 

PLEASE JOIN US!

H-1B CAP: LOTTERY AND REGISTRATION UPDATES

MU Law will be hosting a free webinar for our clients and friends on Tuesday, February 16, 2021 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 H-1B CAP timeline for registration submissions

-      The H-1B Wage-Based Lottery Selection Rule now *canceled*

-      Recap of DOL Wage Rule and promo Alternative Wage Surveys

-      The H-1B Rule Requiring End-Clients to file LCAs or H-1Bs now *canceled*

 

PLEASE JOIN US! 

USCIS Delays Wage-Based H-1B Lottery until 2022

In January 2021, the USCIS issued a final rule that would replace the random H-1B cap lottery with a wage-based H-1B selection process. This January 2021 rule was set to go into effect on March 9, 2021 and would apply to the upcoming H-1B cap season (filed in April 2021 for Fiscal Year 2022). However, the USCIS has delayed implementing this rule until December 31, 2021. This means that for the H-1B cap lottery in April 2021, even if there are multiple lottery drawings, none of the drawings will be done under the wage-based selection process.  All lottery drawings in 2021 will be random.  

The new wage-based selection process would select the H-1Bs filed at the highest OES prevailing wage level, starting with Level IV, for the job classification and location of employment.  If there are more than 85,000 Level IV H-1B petitions filed, then the USCIS would hold a lottery just for the Level IV wage petitions.  If there are fewer than 85,000 level IV wage petitions, then the USCIS would run a lottery of the Level III wage petitions for the remaining H-1B spots available. The wage-based selection process then continues for Level II and I, until 85,000 petitions have been selected. 

The USCIS announced February 4, 2021 that the USCIS will delay implementing the wage-based selection process because the USCIS does not have adequate time to develop and test the new wage-based selection process for the 2021 H-1B lottery.  At present, the USCIS plans to have the rule implemented for the H-1B cap season in April 2022 (Fiscal Year 2023).

  

PRESIDENT BIDEN PROPOSED US CITIZENSHIP ACT OF 2021

President Biden has announced the US Citizenship Act of 2021, an immigration plan that could impact many immigration laws.  At this time, President Biden’s plan is not law, but only a proposal.  Although President Biden has promised many changes to immigration laws, these changes will take time to be implemented. 

Once President Biden’s plan is introduced into Congress, either in the House of Representatives or the Senate, as a bill, the bill must successfully pass three steps before it becomes a law:

1. Pass the House of Representatives and the Senate. The bill must be voted for by a majority of the members of the House of Representatives (the House) and the Senate.

2.Conference Committee. If the House and the Senate pass different versions of the bill, the bill must be amended so that there is only one version of the bill. Once the bill has been amended, both the House and Senate must again pass the bill.

3. Be signed by the President. Once a bill is signed by the President, the bill  becomes a law.

As of today, the US Citizenship Act of 2021 introduced by President Biden is still only a plan and must be introduced to Congress as a bill and successfully pass these three steps before it becomes a law.