EMBASSY AND CONSULATE GUIDANCE TO PRIORITIZE CERTAIN CONSULAR SERVICES HAS BEEN RESCINDED

The Department of State (DOS) previously issued guidance stating that embassies and consulates were required to prioritize certain consular services, due to the COVID-19 epidemic. The DOS now issued a notice that the November 2020 visa prioritization guidance has been rescinded, effective immediately.

All embassies and consulates now have broad discretion to determine how to best prioritize visa appointments, among the range of visa classifications, at each specific embassy or consulate. Embassies and consulates are still subject to any local conditions or restrictions that are in place. In addition, applicants can still request expedited interviews, if their work will be performed at a facility engaged in pandemic response.

USCIS Selects Additional FY2022 H-1B Cap Registrations

The USCIS has conducted a third round of selections in the Fiscal Year 2022 (FY 2022, filed in March 2021) H-1B Cap lottery. This is a historic first for the USCIS since implementing its new H-1B online registration system in 2019, as it has previously only conducted two rounds of selection.

While there are only 85,000 H-1B cap-subject visas available, over 308,000 registrations were entered into the selection lottery for FY2022. The USCIS will continue rounds of random selection until it reaches the 85,000 H-1B quota. The initial selection was conducted in March 2021, and the second round in July 2021. All selections are for registrations entered into the FY2022 H-1B cap lottery in March 2021.

Registrations selected in this latest round will now have a selection notice available on either their myUSCIS account or their attorney’s myUSCIS account. All H-1B cap petitions filed based on this third round of selections must be received by the USCIS by February 23, 2022.  

USCIS Policy Alert: Employment Authorization of Certain E, L, and H Spouses

USCIS has issued a Policy Alert, and has updated its Policy Manual accordingly, to explain how its recent settlement in Shergill, et al. v. Mayorkas will be applied in practice for the spouses of E, L, and H nonimmigrants. USCIS will automatically extend EADs for E, L, and H spouses, and within 120 days of USCIS’s policy alert, grant E and L spouses employment authorization incident to status. USCIS expressed its hope that eliminating the requirement of filing Form I-765 for E and L spouses will help reduce USCIS’s adjudication backlogs.

Automatic Extensions of EADs for E, L, and H spouses

Beginning November 12, 2021, the EADs of E, L, and H spouses will be automatically extended for a period of up to 180 days if:

• The spouse properly filed an Application for Employment Authorization (Form I-765) for a renewal of their E, L, or H spouse-based EAD before the current EAD expired; and

• The spouse has an unexpired Form I-94 indicating valid E, L, or H dependent status.

Duration

Automatic extension of E, L, and H spouses’ EADs will terminate automatically on the earliest of:

• The end of the validity period of the nonimmigrant status, as shown on the Form I-94;

•  The approval or denial of the Form I-765 application to renew the EAD; or

•  180 days from the date of the expiration of the previous EAD.

E and L Spouses Authorized for Employment Incident to Status

With a new notation on Form I-94, to be implemented within 120 days of USCIS’s Policy Alert, E and L spouses will be authorized to work automatically if the spouse maintains valid E or L status. The new I-94 notation will (1) differentiate an E or L spouse’s status from that of a child; and (2) authorize the E or L spouse to work.

USCIS has rescinded its previous 2002 policy that required E and L spouses to apply for Employment Authorization using Form I-765 and receive a valid Employment Authorization Document (EAD) card in order to work. However, a Form I-765 may still be filed by E and L spouses if they wish to receive an EAD.

Once CBP implements its I-94 notation of spouse status, a valid E or L spouse I-94 will be sufficient proof of work authorization.

SETTLEMENT PROVIDES RELIEF FOR NONIMMIGRANT SPOUSES SEEKING EAD RENEWALS

The United States Citizenship and Immigration Services (USCIS) has entered into a settlement which provides beneficial changes to work authorization for H-4 and L-2 spouses. USCIS will issue a formal policy guidance to implement the following two changes.

First, USCIS will now recognize that certain H-4 holders who timely file their EAD renewal applications will qualify for an automatic extension of their EAD while waiting for the adjudication of their renewal application. This automatic renewal will last for up to 180 days after the expiration of the EAD. However, the automatic extension will not exceed the end date of the individuals H-4 status noticed on the Form I-94, and will also end once USCIS issues an approval or denial on the renewal application.

Second, L-2 spouses will be employment authorized incident to status, or in other words, as a condition of the L-2, the spouse will be employment authorized without a separate application. USCIS will work in cooperation with CBP (Customs and Border Patrol) to change the Form I-94 so that L-2 spouses can use the document for Form I-9 purposes.

As stated above, USCIS will be issuing formal guidance further detailing when and how these changes will be implemented. As always, MU will provide further updates as they become available.

MANILA TO PRIORITZE NURSE IMMIGRANT VISAS

Musillo Unkenholt has been working with the AAIHR and AHA to revive nurse immigrant visa processing, and have some positive news to report.  In a follow up discussion on Friday, from an earlier discussion two weeks ago, the Department of State confirmed that they will make nurse immigrant visas their number one priority starting in December in Manila and at several key Posts around the world such as Nairobi, Kingston, Mumbai, Lagos, and London. 

Because these discussions were with high-ranking officials touching the White House, we are confident that we will begin to see nurse immigrant visas scheduled shortly.

NOVEMBER 2021 WEBINAR

Join us for a review of some of the latest immigration changes and updates!

MU Law will be hosting a FREE webinar for our clients and friends on Tuesday, November 2, 2021 at 1PM Eastern (noon Central).

REGISTER HERE    

Join us for this FREE webinar to learn more about:

-          The Potential for Retrogression

-          Consular Backlogs

-          Expediting Cases for Health Care Workers

-          Additional updates and policy proposals and lobbying efforts

-          Covid Vaccinations now Required for Green Cards

PLEASE JOIN US

US Travel Restrictions Lifted for Fully Vaccinated Individuals

President Biden has issued a new proclamation lifting travel restrictions for fully vaccinated individuals travelling by air to the US beginning November 8, 2021.

Travelers from 33 countries – including India, China, Great Britain, and the Schengen Zone – have faced strict travel restrictions since early 2020 that required a two-week quarantine period in a third country before the individual may enter the US. President Biden’s proclamation lifts all country-specific COVID-19 travel bans.

To travel directly to the US by air, travelers will have to (1) present proof that they are fully vaccinated against COVID-19 and (2) provide a negative COVID-19 test taken within 72 hours of travel. Only vaccines approved or authorized by either the Food and Drug Administration or World Health Organization will be accepted. This list includes vaccines created by:

-          Moderna;

-          Johnson & Johnson;

-          Pfizer-BioNTech;

-          Oxford-AstraZeneca/Covidshield;

-          Sinopharm; and

-          Sinovac.

The proclamation includes several exemptions from the vaccination requirement, including for children under 18, travelers with certain medical conditions, and non-tourists from countries identified by Center for Disease Control and Prevention as having limited availability of vaccination. However, some travelers who enter the US under one of the exemptions may be required to become vaccinated within 60 days of entry.

NOVEMBER 2021 VISA BULLETIN: ANALYSIS

The Department of State has just issued November 2021 Visa Bulletin.  This is the second Visa Bulletin of Fiscal Year 2022. 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	15-Nov-18	01-Dec-11	C
3rd	C	22-Mar-18	15-Jan-12	C

Table B: Dates of Filing

The USCIS will be using the Table B chart for I-485 employment-based filings. See: USCIS Visa Bulletin Dates

MU Law Analysis

The DOS continues to confound.  On one hand – and to the detriment of Indian and Chinese EB-3s – the DOS retrogressed dates massively.  EB-3 India Final Action dates retrogressed about two years, back to January 15, 2012. EB-3 China retrogressed to March 22, 2018, which is about 9 months.  Adding to the pain of Indian and Chinese EB-3s, Dates of Filing for these categories also retrogressed, which means that there will not be a chance for I-485 filings.

On the other hand, the dates for India and China EB-2, progressed.  India EB-2 moved ahead by three months.  China EB-2 advanced by 5 months.  Similar progressions occurred in the Dates of Filing chart.

The story was benign if confusing for Philippines and Worldwide EB-3, where dates held at Current. 

The confusion comes on the heels of last month’s DOS comments that implied retrogression in all categories, not just India and China EB-3.

NOVEMBER 2021 WEBINAR

Join us for a review of some of the latest immigration changes and updates!

MU Law will be hosting a FREE webinar for our clients and friends on Tuesday, November 2, 2021 at 1PM Eastern (noon Central).

REGISTER HERE

Join us for this FREE webinar to learn more about:

-          The Potential for Retrogression

-          Consular Backlogs

-          Expediting Cases for Health Care Workers

-          Additional updates and policy proposals and lobbying efforts

-          Covid Vaccinations now Required for Green Cards

PLEASE JOIN US! 

WILL THERE BE AN EB-3 RETROGRESSION IN NOVEMBER, AND IF SO WHY AND WHAT DOES IT MEAN FOR THE FUTURE?

Last week’s October 2021 Visa Bulletin was hotly anticipated.  Over the summer it became apparent that the 140,000 employment based visa quota would at least double in fiscal year 2022, which starts October 1, 2021.  The expectation was that IV dates would leap forward.

And yet when the October 2021 was released not only did the dates stay the same, but the VB included a note at the end,

Employment Third:

Worldwide: A final action date could be imposed as early as November

China: A retrogression of this date could occur as early as November

India: A retrogression of this date could occur as early as November

Mexico: A final action date could be imposed as early as November

Philippines: A final action date could be imposed as early as November

With that we now expect retrogression in all EB categories starting in November. Charlie Oppenheim, who runs creates each month’s Visa Bulletin for the Department of State, said as much in his monthly You Tube video broadcast. 

There appears to be two reasons for this change in expectation:

-There were many more I-485, Adjustments of Status filed in FY 2020 than anyone in the DOS expected.  Likewise, the USCIS is approving more I-485s.  This is a disappointing answer because most of these I-485s were filed in October and November 2020.  This insight should have been apparent much earlier.

-The Department of State knows that their overseas consulates and embassies have the ability to dramatically increase processing of consular processed visas.  This is good news for overseas for consular processed immigrant visas, like nurses, because it implies that the DOS is holding back immigrant visas instead of allowing the entire quota to be used by AOS cases.  On the other hand, it is surely disappointing if you are in the US awaiting a visa. 

MU Law’s interpretation is that if the overseas consulates and embassies do not dramatically increase their visa issuance, that these visas should be put back into the AOS queue later in FY 2022.

FORTHCOMING BUDGET RECONCILIATION BILL MAY DRAMITICALLY INCREASE GREEN CARDS

A potential amendment to the forthcoming budget bill may dramatically raise the employment-based visa quota, if Senate Democrats can rewrite it in a way to appease the Senate parliamentarian.  Over the weekend, Senate Democrats attempted to pass a positive immigration bill, but the Senate parliamentarian said that it was inappropriate to include wide-ranging immigration language in a budget bill.  Senate Democrats are said to be working on a back-up plan.

A budget bill is expected to pass before October 1, 2021 to prevent a federal government shut down.  Between now and then, the budget negotiations are expected to consume Washington.  As part of the process, House and Senate committees propose and suggest language to place into the bill. 

The House Judiciary Committee last week approved immigration language for the budget bill, which included several positive immigration measures.  Notably, the HJC language included a “recapture” of immigrant visas that were authorized but unused by DHS from 1992-2021.  A 2010 report by DHS found that between 1992-2010 about a half million employment based visas were authorized by Congress but unused simply because of bureaucratic delays and inefficiencies.  Recapturing these visas would dramatically clear up most retrogressed green cards and would be an amazing piece of legislation for foreign nationals, US employers, and the US economy as a whole.

The language included a few other positive items:

-A legalization path for a large number of undocumented people in the US

-A similar recaptured visas for family-based visas

-A liberalized Adjustment of Status process for those with priority dates that are 2 years old

-An increased budget allocation for USCIS

OCTOBER 2021 VISA BULLETIN: ANALYSIS FOR FY 2022

The Department of State has just issued October 2021 Visa Bulletin.  This is the first Visa Bulletin of Fiscal Year 2022. 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-Jul-18	1-Sep-11	C
3rd	C	8-Jan-19	1-Jan-14	C

Table B: Dates of Filing

The USCIS will be using the Table B chart for I-485 employment-based filings. See: USCIS Visa Bulletin Dates

MU Law Analysis

The DOS’ comments at the end of this Visa Bulletin confounds.  They predict that the DOS will enact priority date cut-offs (retrogression) with the November Visa Bulletin.  Most prior DOS predictions did not call for a retrogression.

It remains to be seen if this prediction holds true, and if it does, how long it lasts.  It seems certain that there are many numbers available.  This could be the DOS trying to slow inquiries by being able to point to the retrogression.

UPDATED EXPEDITED IV CRITERIA FOR HEALTHCARE WORKERS

The Department has just updated their guidance on emergency IV appointments for healthcare workers.  U.S. embassies and consulates now may prioritize as emergencies immigrant visa cases of healthcare professionals who will work at a facility engaged in pandemic response.  Healthcare professionals should review the website of the relevant U.S. embassy or consulate for procedures to request an emergency visa appointment.

If the case is being processed at the National Visa Center (NVC), the applicant may request expedited processing by emailing NVCExpedite@state.gov, including the case or receipt number on the subject line, along with at least one of the following: (1) petitioner’s name and date of birth, (2) beneficiary’s name and date of birth, and/or (3) invoice ID number. 

IMMIGRANTS REQUIRED TO HAVE COVID VACCINE STARTING OCT 1

Applicants for US permanent residency (green card) will be required to obtain the COVID vaccine as part of the medical examination starting October 1, 2021.  Both consular process and adjustment of status applicants will be required to be vaccinated.  Only age-appropriate applicants will be subject to the requirement.  Some children may have the requirement waived, depending on the US government guidelines that are applicable at the time of the immigrant visa medical exam. 

This new vaccine requirement is required by U.S. Department of Health and Human Services (HHS) / Centers for Disease Control and Prevention (CDC) regulation.

PLEASE CONTACT YOUR REPRESENTATIVES TO HELP US PATIENTS

Hospitals in every corner of the country are once again buckling under the weight of the coronavirus. But unlike earlier surges when intensive care capacity flexed to grow the number of available beds or acquire additional ventilators, the challenge for health systems today is neither space nor supplies—it's staff.

Even before the coronavirus, US hospitals were short about 200,000 nurses. The situation is far worse today. One survey by the Kaiser Family Foundation found 3 in 10 health care workers are considering or already have left the bedside. Nurses are superheroes of this pandemic. But they're not superhuman. Tired and traumatized after more than a year on the front lines, nurses are vacating the practice in historic numbers.

Absent a massive infusion of qualified nurses, patient care—and, crucially, patient outcomes—will plummet because nurse staffing directly influences patient mortality. Increasing a nurse's workload by just one patient increases patient mortality by 7 percent.

Hospitals need reinforcements. The United States Citizenship and Immigration Services has approved green cards for at least 5,000 qualified, skilled international nurses. These nurses all have sterling clinical records and have passed English language tests, but they cannot emigrate because their visa processing has stalled at the final step due to a bureaucratic backlog.

Under the US State Department's visa processing schedule, there are four priority tiers. Nurses are fourth—dead last—in this framework. In practice, it means they're at the end of a very long, slow-moving line. Meanwhile, ICU beds are filling, and hospitals are struggling to staff them.

The Department of State must fast-track nurse visa processing. American patients deserve nothing less.

We urge you to take just a few minutes and contact your elected representatives in Washington and ask them to elevate this issue with the State Department so we can expediate the approval of these desperately needed nurses.

Contact Your House member:

https://www.house.gov/representatives/find-your-representative

Contact your Senator:

https://www.senate.gov/senators/senators-contact.htm

 

SEPTEMBER 2021 VISA BULLETIN: ANALYSIS AND PREDICTIONS

The Department of State has just issued September Visa Bulletin.  This is the final 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-Jul-18	1-Sep-11	C
3rd	C	8-Jan-19	1-Jan-14	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.  See: 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 and into FY 2022.  India EB-2 advanced by three months, which shows that the demand for this category remains strong.  India EB-3 again moved ahead by six months in spite of widespread reports of downgrades from EB-2 to EB-3.  This category has advanced by one year in just two months, meaning that the DOS is trying to encourage EB-3 applications.

China EB-2 showed a three-month advancement, which is encouraging. 

On the other hand, EB-3 remained the same, indicating exhaustion of tis category’s visas for FY 2021.

BIDEN – AT SIX MONTHS

Join us for a review of some of the immigration changes in the first six months of the Biden Presidency. 

MU Law will be hosting a free webinar for our clients and friends on Tuesday, August 17, 2021 at 2PM Eastern (1PM Central).

Join us for this FREE webinar to learn more about:

-          Visa Bulletin predictions

-          Consular backlogs

-          Deference to prior approvals by USCIS

-          RFEs and NOIDs

-          Expediting cases

-          Biometrics and EAD policies for dependents

-          Additional updates and policy proposals

 

PLEASE JOIN US!

REMINDER-BIDEN – AT SIX MONTHS

Join us for a review of some of the immigration changes in the first six months of the Biden Presidency.  Interested clients and friends can register for our webinar by clicking on the link below.

REGISTER HERE

MU Law will be hosting a free webinar for our clients and friends on Tuesday, August 17, 2021 at 2PM Eastern (1PM Central).

Join us for this FREE webinar to learn more about:

-          Visa Bulletin predictions

-          Consular backlogs

-          Deference to prior approvals by USCIS

-          RFEs and NOIDs

-          Expediting cases

-          Biometrics and EAD policies for dependents

-          Additional updates and policy proposals

 PLEASE JOIN US!

USCIS Extends Flexibilities to Certain Applicants Filing Form I-765 for OPT and STEM OPT

Pursuant to a court order, USCIS has extended flexibilities for certain foreign students affected by delayed receipt notices issued for Form I-765, Application for Employment Authorization. These flexibilities apply only to those applications filed on or after Oct. 1, 2020, through Oct. 31, 2021, inclusive.

As acknowledged by USCIS, filers of I-765 EAD applications for OPT and STEM OPT extensions have experienced significant delays in the issuance of receipt notices. In an attempt to assist certain applicants impacted by the delays, USCIS first enacted flexibilities for certain applicants filing form I-765 for OPT on February 26, 2021, which applied to cases received through May 1, 2021. However, those flexibilities were extended by court order on July 23, 2021, and now apply to cases received through October 31, 2021.

Until October 31, 2021, USCIS will allow for the following flexibilities:

Guaranteed Processing of Form I-765 OPT/STEM OPT applications in 120 days

• USCIS will process all applications for OPT and STEM OPT within 120 days of receipt. Processing means that the application will be approved, denied or an RFE will be issued within 120 days.

Grant of post-completion OPT EAD validity period

• USCIS will grant a full 12 months of post-completion OPT irrespective of the requirement that OPT be completed within 14 months of graduation.
• USCIS will grant OPT for the full period originally recommended by the DSO on Form I-20, irrespective of the time of adjudication.

Retroactive correction of OPT EADs already issued

• Upon eligible applicants’ request, USCIS will issue a CORRECTED EAD for any post-completion OPT EAD application received between Oct. 1, 2020, through Oct. 31, 2021, inclusive, that was issued with a validity period that was less than the DSO’s recommended validity period.

 Acceptance of previously-rejected OPT/STEM OPT applications

• USCIS will accept re-filed I-765 applications for OPT/STEM OPT that were originally filed on time between October 1, 2020 and October 31, 2021 and later rejected.
• Resubmitted applications must be received prior to November 30, 2021.
• Resubmitted applications will be processed as if received on the original date (i.e. the full period of OPT will be granted, but the original I-20 will be accepted without the requirement of a new I-20).

o   If the case was rejected for missing or deficient signature(s), a             request for Evidence will be issued instead of a denial. 

Acceptance of Form I-765 post-completion OPT applications 120 days before completion of program

• From July 23, 2021 until October 31, 2021, USCIS will accept I-765 post-completion OPT applications submitted up to 120 days (instead of 90) before completion of the respective program.