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Priority-date cutoffs will advance in key employment-based categories next month, according to the State Department’s May Visa Bulletin.
Final Action Dates in May:
EB-1
EB-2
EB-3
Final Action Dates for Employment-Based Preference Cases:
The State Department also released its Dates for Filing chart for May. Applicants seeking to file for adjustment of status are reminded that the chart does not take effect unless U.S. Citizenship and Immigration Services confirms that it does via a web posting after the Visa Bulletin is released.
This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.
U.S. Citizenship and Immigration Services (USCIS) has published a Request for Public Input seeking information from the public on how the agency can reduce barriers that prevent foreign citizens from easily obtaining access to immigration services and benefits.
Key Points:
Additional Information: The request for input is part of USCIS’s implementation of President Joe Biden’s Feb. 2 executive order, “Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans.”
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President Joe Biden announced his intended nominees for key Department of Homeland Security (DHS) positions this week, including his picks to lead U.S. Citizenship and Immigration Services (USCIS) and U.S. Customs and Border Protection (CBP).
Additional Information: Both nominations are subject to Senate confirmation. Biden has not yet announced a pick for director of U.S. Immigration and Customs Enforcement (ICE). Biden’s pick for Secretary of Homeland Security, Alejandro Mayorkas, was confirmed by the Senate in February.
The Labor Department posted updated processing times this week for permanent labor certification (PERM) applications and prevailing wage determination (PWD) requests.
PERM Processing: As of March 31, the department was adjudicating applications filed in August and earlier, conducting audit reviews on applications filed in April and earlier, and reviewing appeals for reconsideration filed in November and earlier.
Average PERM processing times:
PWD Processing: As of March 31, the National Prevailing Wage Center was processing PWD requests filed in November and earlier for H-1B cases and October and earlier PERM cases. Redeterminations were being considered on appeals filed in March and earlier for H-1B and February and earlier PERM cases. Center director reviews were being conducted on PERM cases filed in February and earlier. There were no center director reviews pending for H-1B cases.
Average times for issuance of PWDs:
BAL Analysis: BAL’s internal case tracking is consistent with the Labor Department’s published processing times. BAL is seeing approvals for PERM applications filed in August and earlier and is starting to see PWDs for requests filed in November and earlier.
U.S. Citizenship and Immigration Services (USCIS) announced Monday that it would expand online filing eligibility to certain F-1 Optional Practical Training (OPT) applicants.
Additional Information: Online filing allows applicants to submit forms electronically, check the status of their case and receive notices from USCIS electronically rather than through the mail. Overall, USCIS has made online filing available for 11 forms, all of which can be found on the agency’s Forms Available to File Online page.
The U.S. State Department announced Thursday that travel of immigrants, fiancé(e) visa holders, certain exchange visitors, and pilots and aircrew will be eligible for National Interest Exemptions (NIEs) to the United States’ COVID-19 regional travel bans.
Background: Regional travel bans bar most foreign nationals from entering the U.S. if they have been physically present in Brazil, China, Iran, Ireland, South Africa, the United Kingdom or the Schengen Area in the 14 days before attempting to enter the U.S. U.S. citizens, lawful permanent residents, spouses and children of U.S. citizens and lawful permanent residents, and a limited number of others are exempt. Anyone traveling to the U.S. by air must provide documentation of a negative viral COVID-19 test taken within three days of travel or evidence of recovery from a recent COVID-19 infection.
The State Department is in the process of a phased resumption of visa services. Consular operations vary by post, and applicants should monitor embassy and consulate websites for updates on availability of visa services.
BAL Analysis: The new exemptions will make travel to the United States easier for some, but a number of restrictions remain in place. Consulates continue to operate at reduced capacity, and applicants should expect significant delays in obtaining visa appointments as operations gradually resume. Foreign nationals should continue to consult their BAL professional before planning international travel.
U.S. Citizenship and Immigration Services opened the 90-day filing period for cap-subject H-1B petitions today. The agency completed the H-1B registration lottery earlier this week.
BAL Analysis: Companies are reminded that while the filing period will remain open for 90 days, they should prioritize time-sensitive candidates such as F-1 students on cap-gap and others whose status may expire soon. Premium Processing is available for an additional fee, and employers may wish to consult with BAL about this option. BAL continues to monitor H-1B cap season and will provide updates as information becomes available.
The Department of Labor will publish a request for information (RFI) on the sources of data and methodologies for determining prevailing wage levels for jobs that U.S. employers seek to fill with foreign workers through certain employment-based immigrant and H-1B, H-1B1, and E-3 nonimmigrant visa programs.
Background: The DOL wage rule was originally issued in October 2020 without notice or a public comment period, and was struck down by a federal court in December. The Trump administration issued a new version of the rule in January, providing for less dramatic wage increases, a delayed effective date and a phased-in approach to implementing new wage levels beginning July 1, 2021.
Last month, DOL proposed to delay the rule until Nov. 14, 2022, and push the beginning of the phased implementation of the higher wages to Jan. 1, 2023. The agency is accepting comments on the delay proposal until April 21, and will need to review the comments and publish a final rule to officially delay the higher wages beyond July 1.
The temporary work visa ban the Trump administration implemented early last summer expired Wednesday.
The ban, Proclamation 10052, blocked foreign nationals in certain temporary work visa categories, including H-1B, L-1 and J-1, from entering the U.S. On Dec. 31, 2020, the Trump administration extended the ban to March 31, 2021. The Biden administration declined to renew it.
Additional Information: The Biden administration let the work visa ban lapse after rescinding the Trump administration’s immigrant visa ban in February.
BAL Analysis: The decision to let the work visa ban lapse is a welcome sign, but traveling to the U.S. remains challenging for many foreign nationals. Regional travel restrictions are still in place, and applicants should expect significant delays in obtaining visa appointments as consular operations gradually resume. Foreign nationals should consult with their BAL professional before planning any international travel. BAL continues to monitor COVID-19 entry and travel restrictions and will provide updates as information becomes available.
Immigration and Customs Enforcement (ICE) announced today that it has extended Form I-9 flexible procedures for employers operating remotely because of COVID-19.
Background: ICE introduced the temporary measures in March 2020 and has extended them numerous times since then.