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Priority-date cutoffs will advance modestly in most employment-based categories, according to the State Department’s February Visa Bulletin. USCIS confirmed it will use the Final Action Dates chart for adjustment-of-status applications next month.
Key Movements:
EB-1
EB-2
EB-3
Final Action Dates for Employment-Based Preference Cases:
Additional Information: Priority-date cutoffs advanced dramatically in the October Visa Bulletin, did not change in November and advanced modestly in most categories in December. Priority cutoff dates retrogressed sharply in January following USICS’s switch to the Final Action Dates after it used 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 Labor Department has posted updated processing times for permanent labor certification (PERM) applications and prevailing wage determination (PWD) requests.
PERM Processing: As of Dec. 31, the department was adjudicating applications filed in June and earlier, conducting audit reviews on applications filed in February and earlier, and reviewing appeals for reconsideration filed in August and earlier.
Average PERM processing times in December:
PWD Processing: As of Dec. 31, the National Prevailing Wage Center was processing PWD requests filed in July and earlier for H-1B and PERM cases, according to the Labor Department. Redeterminations were being considered on appeals filed in November and earlier for PERM cases and December and earlier for H-1B cases. Center director reviews were being conducted on PERM cases filed in November and earlier. There were no center director reviews pending for H-1B cases.
Average times for issuance of prevailing wage determinations:
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 June and earlier, and is seeing PWDs for requests filed in July and earlier for H-1B cases and PERM cases.
A limited “H-1B strengthening” final rule that the Department of Homeland Security posted to its website last Friday is expected to be withdrawn in compliance with a memorandum issued by the White House Chief of Staff yesterday.
Key Points:
Background: The rule had a more limited scope than the H-1B Strengthening Interim Final Rule that a court set aside in December.
BAL Analysis: BAL is closely following the Biden administration’s approach to multiple H-1B regulations and will update clients as information becomes available.
President Joe Biden assumed the presidency today and is expected to take numerous actions affecting immigration policy his first day in office. Biden will sign a series of executive actions to undo several Trump-era orders and will send a comprehensive immigration reform bill to Congress.
Key executive actions:
Key provisions of Biden’s immigration bill:
BAL Analysis: President Biden has set out an ambitious immigration agenda on Day 1, and has indicated he will take additional actions in the coming weeks. BAL is closely monitoring the administration’s actions on executive orders, regulatory changes and broader legislative reforms and will continue to provide timely updates as information becomes available.
President Trump issued a presidential proclamation Monday announcing the termination of certain COVID-19 physical presence bans, but the Biden administration has indicated it will keep them in place for the time being.
Background: During the first half of 2020, President Trump imposed a series of “physical presence” bans that bar travelers who have been physically present in Brazil, China, Iran, Ireland, the United Kingdom or the Schengen region within 14 days of seeking to enter the United States. Monday’s proclamation does not cover China or Iran. The U.S. government will also implement a COVID-19 testing requirement for all international air travelers starting Jan. 26.
BAL Analysis: The physical presence travel bans remain in place at this time, and the incoming administration has indicated it will not be lifting them on Jan. 26. BAL is closely monitoring ongoing travel restrictions and the Biden administration’s response to the multiple Trump travel bans and will update clients as information becomes available.
The Department of Homeland Security (DHS) and Department of Labor (DOL) have released last-minute policy changes to the H-1B nonimmigrant program.
Additional information: The incoming Biden administration has indicated that it intends to delay any regulations that have not taken effect by Wednesday when President-elect Joe Biden takes office. BAL is closely monitoring developments on H-1B regulations and the new administration’s posture toward midnight regulations and will update clients as information becomes available.
U.S. Citizenship and Immigration Services announced today that it will temporarily suspend in-person services next Tuesday and Wednesday to ensure the safety of its employees and individuals with appointments.
Additional information: The USCIS website and USCIS Contact Center will remain available for information, case status updates, and other online tools and resources.
U.S. Immigration and Customs Enforcement (ICE) announced Tuesday that it is creating the Optional Practical Training (OPT) Employment Compliance Unit, a full-time unit dedicated to monitoring and investigating employer and student compliance with OPT and Curricular Practical Training (CPT) programs.
The OPT Employment Compliance Unit will have authority to:
Background: The OPT and CPT programs allow F-1 students to be employed under qualifying training programs for up to 12 months. In 2008, the OPT-STEM extension was introduced allowing eligible students with STEM degrees to extend their one-year OPT program for an additional 17 months. In 2016, a regulation replaced the 17-month OPT-STEM extension with a 24-month OPT-STEM extension.
BAL Analysis: The announcement states that the new unit is intended to ensure that employers are not using OPT programs in a way that harms U.S. workers or foreign student employees. Employers should anticipate greater scrutiny and enforcement of all requirements under OPT, OPT-STEM extension and CPT programs, and are encouraged to review their policies and procedures. BAL can assist in a compliance review and assessment.
The Department of Homeland Security will extend the ban on nonessential land travel with Canada and Mexico. Prepublication versions of the notices extending the bans were posted today.
Additional Information: The nonessential travel bans were imposed March 20 because of the COVID-19 pandemic. They were initially in place for 30 days and have since been extended in month-long increments since then.
The U.S. government will soon require individuals traveling to the country by air to test negative for the COVID-19 virus.
Additional Information: The testing requirement will be in addition to “physical presence” bans and other COVID-19 travel restrictions. The physical presence bans bar entry to most travelers who have been in Brazil, China, Iran, Ireland, the United Kingdom or any of the 26 Schengen Area countries in the 14 days before entry. The Trump administration also recently extended the immigrant visa ban and nonimmigrant work-visa ban through March 31, 2021. U.S. citizens, lawful permanent residents, spouses and children of U.S. citizens and a limited number of others are exempt from both the physical presence and work visa bans.