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Priority-date cutoffs will advance in key employment-based categories next month, according to the State Department’s April Visa Bulletin.
Key Movements in Final Action Dates in April:
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 April. 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 in the coming days.
USICS used Final Action Dates in January, February and March after using Dates for Filing for the first three months of the fiscal year.
This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.
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The Department of Labor (DOL) has posted a pre-publication version of a notice delaying the effective date of the agency’s rule to amend wage obligations for certain visa classifications and permanent labor certifications (PERM). The delay does not change the scheduled phase-in of higher wage obligations beginning July 1, but DOL continues to review whether to delay implementation.
Key Points:
Background: DOL attempted to increase wage obligations for the H-1B, H-1B1 and E-3 categories and PERMs through an Interim Final Rule (IFR) issued on Oct. 8, 2020, that took effect immediately. Federal courts struck down the IFR, finding that it did not go through proper rulemaking procedures, and the agency stopped applying it last fall. DOL published an amended final rule on Jan. 14.
U.S. Citizenship and Immigration Services (USCIS) released updated guidance late Wednesday confirming that applicants no longer need to provide documentation required under the 2019 public charge rule.
Background: The USCIS guidance was expected after Secretary of Homeland Security Alejandro Mayorkas issued a statement earlier this week saying the administration would no longer defend the 2019 public charge rule in the multiple court cases challenging it. After the Supreme Court and other federal courts dismissed their appeals, a final court order from the Northern District of Illinois took effect, vacating the rule.
Secretary of Homeland Security Alejandro Mayorkas issued a statement Tuesday that said the administration would no longer defend the 2019 public charge rule in the multiple court cases challenging it.
Background: In announcing the decision to stop defending the public charge rule, Mayorkas said the regulation was “not in keeping with our nation’s values” because it penalized individuals for accessing health benefits and other government services available to them. In November, a federal court in Illinois struck down the rule in its entirety. The government’s move to abandon its appeal of that ruling means that the court’s decision becomes final.
BAL Analysis: The announcement by the Department of Homeland Security that it will return to previous public charge guidelines is welcome news. U.S. Citizenship and Immigration Services is expected to issue guidance confirming that applicants no longer need to provide documentation required under the rule, and DHS is expected to announce additional details regarding its plans for the rule going forward. A full review of public charge actions by DHS and other agencies remains ongoing under an executive order issued by President Joe Biden.
Secretary of Homeland Security Alejandro Mayorkas has designated Venezuela for Temporary Protected Status, according to a notice published in the Federal Register today.
Additional Information: Under a Jan. 19 memorandum, Venezuelan nationals residing in the United States may also be eligible for Deferred Enforced Departure (DED) and DED-related employment authorization through July 20, 2022. Individuals who apply for and receive TPS and who are also covered by DED do not need to apply for EADs under both programs. Individuals who believe they are eligible for TPS are encouraged to apply during the registration period, even if they are also covered by DED, in case they do not qualify for late TPS filing once their DED has expired.
The Labor Department has posted updated processing times for permanent labor certification (PERM) applications and prevailing wage determination (PWD) requests.
PERM Processing: As of Feb. 28, the department was adjudicating applications filed in July and earlier, conducting audit reviews on applications filed in March and earlier, and reviewing appeals for reconsideration filed in October and earlier.
Average PERM processing times:
PWD Processing: As of Feb. 28, the National Prevailing Wage Center was processing PWD requests filed in September and earlier for H-1B cases and August and earlier PERM cases, according to the Labor Department. Redeterminations were being considered on appeals filed in January and earlier for H-1B and 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 July and earlier and is starting to see PWDs for requests filed in September and earlier.
United States Citizenship and Immigration Services will open this year’s H-1B electronic registration period at noon EST on Tuesday, March 9. The registration period will close at noon EDT on March 25.
Here is some of the key information for those new to the process or in need of a refresher:
Additional Information: This year marks the second year that USCIS has used the H-1B electronic registration process. Earlier this week, USCIS began allowing H-1B petitioners and registrants to create new myUSCIS online accounts. Those who already had an active H-1B registrant account do not need to create a new one. USCIS will continue to post information about registration on its H-1B Electronic Registration Process website.
BAL Analysis: Employers who do not already have an active H-1B registrant account are encouraged to create one as soon as possible to ensure that any technical issues can be addressed before registration opens. Those with existing accounts are encouraged to log in before the registration period to ensure they have continued access. BAL will continue following developments during the H-1B registration period and will provide updates as information becomes available.
The U.S. State Department this week moved to tighten the standards for National Interest Exceptions (NIEs) to the U.S.’s entry ban on most travel from Europe.
BAL Analysis: The Department of State announced the new policy on its website and individual consulates have provided guidance, but the official directive from the agency to consular posts is not publicly available. Foreign nationals should consult their BAL professional before planning international travel. COVID-19 physical presence bans remain in effect for Brazil, China, Iran, Ireland, South Africa, the United Kingdom and the Schengen Area countries. Additionally, the work visa ban remains in place and is scheduled to expire on March 31.
U.S. Citizenship and Immigration Services announced flexible measures today for foreign students affected by delayed receipt notices for Form I-765, Application for Employment Authorization. The measures will apply only to applications received on or after Oct. 1, 2020, through May 1, 2021.
Background: USCIS has recently reported delays in the issuance of receipt notices for Form I-765 for OPT for F-1 students. The agency says the delays are because of COVID-19 protocols, an increase in certain filings and postal delays, among other factors. The agency said it is implementing the flexible measures to mitigate the impact of the delays on applicants for OPT.
U.S. Citizenship and Immigration Services (USCIS) will allow H-1B petitioners and registrants to create new myUSCIS online accounts beginning Tuesday, March 2, at noon Eastern Time.
The timeline of key dates in the H-1B registration process is as follows:
Background: USCIS announced the time line for the H-1B electronic registration period earlier this month. During the registration period, petitioners for cap-subject H-1B visas must submit an electronic registration for each prospective H-1B candidate. Petitioners or their representative must submit registrations via a myUSCIS online account and pay a $10 government filing fee for each registration. Registrations may not be submitted after the March 25 deadline. Following the registration period, USCIS will conduct a random lottery on properly submitted registrations if there are more registrations than visas available. Those who are selected are invited to submit an H-1B cap-subject petition.
BAL Analysis: Employers who do not already have an active H-1B registrant account are encouraged to create one as soon as possible on or after March 2 to ensure that any technical issues can be addressed before registration opens on March 9. Those with existing accounts are encouraged to log in before the registration period to ensure they have continued access.