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U.S. Citizenship and Immigration Services (USCIS) announced today that starting Monday, Oct. 19, its fees will increase for the expedited “premium processing” service. The announcement follows a stop-gap budget resolution signed into law Oct. 1 that enacted changes to premium processing to address ongoing USCIS budget issues.
Key Points:
Background: Premium processing is an optional expedited service for an additional fee that guarantees a response from USCIS within 15 days. The budget resolution also requires USCIS to expand premium processing to additional petition types. The agency has not yet announced how it will expand premium processing to the additional designated categories. Today’s announcement states that USCIS is not yet taking that action.
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The State Department has said it will not enforce the Trump administration’s work visa ban against applicants who are plaintiffs in a lawsuit challenging the ban. Officials stressed, however, that limitations in consular services because of COVID-19 and other restrictions may still prevent applicants from obtaining visa appointments at this time.
· On Oct. 1, a federal judge in California issued a limited preliminary injunction preventing the government from enforcing the work-visa ban (Proclamation 10052) against the plaintiffs and their members. The plaintiffs in the lawsuit are the U.S. Chamber of Commerce, the National Association of Manufacturers (NAM), the National Retail Foundation, Technology Net (TechNet), and Intrax, Inc.
· The State Department subsequently said it would not enforce Proclamation 10052 against J-1, H-1B, H-2B, or L-1 applicants who are “sponsored (as an exchange visitor) by, petitioned by, or whose petitioner is a member of, one of the above named organizations is no longer subject to (Proclamation 10052’s) entry restrictions.”
· The agency noted, however, that many embassies and consulates abroad are still not operating at full capacity because of COVID-19 and that many posts are currently unable to process routine H, L, or J visa applications. Applicants may request emergency appointments, and the announcement said that consular officers will not consider Proclamation 10052 as a factor in deciding whether to grant an emergency appointment. The availability of emergency appointments is limited, however.
· Applicants should also note that a number of other COVID-19 entry restrictions remain in effect, including bans on entry to foreign nationals who have been physically present in the past 14 days in Brazil, China, Iran, Ireland, the United Kingdom or any of the 26 countries in Europe’s Schengen Area. A State Department summary of the restrictions is available here.
Background: The State Department suspended routine visa services worldwide in March because of the COVID-19 pandemic. In July, the agency announced that U.S. embassies and consulates would begin a phased resumption of routine visa services.
BAL Analysis: While the work visa ban will not apply to plaintiffs in the lawsuit, member companies, or their employees, it remains difficult to obtain an appointment at an embassy or consulate at this time. Individuals who are subject to a physical presence-based ban will need to qualify for an exemption to be able to enter the U.S. Those who are considering travel to the United States, or leaving the United States and returning, are urged to work closely with their BAL professional before planning travel. BAL will continue to follow the administration’s response to the Proclamation 10052 litigation and will alert clients to any important developments.
In litigation challenging the immigrant travel ban, a court has ordered the State Department to reserve 9,095 immigrant visas to be issued to DV-2020 lottery winners.
BAL Analysis: The immigrant travel ban remains in effect, and even if the State Department issues the visas in compliance with the court order, the visa holders are barred from entering the U.S. until the travel ban is lifted. The ban is scheduled to expire Dec. 31, but it may be extended by presidential order.
The Labor Department has posted updated processing times for permanent labor certification (PERM) applications and prevailing wage determination (PWD) requests.
PERM Processing: As Sept. 30, the department was adjudicating applications filed in April and earlier, conducting audit reviews on applications filed in December and earlier, and reviewing appeals for reconsideration filed in June and earlier.
Average PERM processing times in September:
PWD Processing: As of Sept. 30, the National Prevailing Wage Center was processing PWD requests filed in June and earlier for H-1B and PERM cases, according to the Labor Department. Redeterminations were being considered on appeals filed in August and earlier for H-1B and for PERM cases. Center Director Reviews were being conducted on appeals filed in September for PERM cases. The department reported no pending Center Director Reviews for H-1B cases.
Average times for issuance of prevailing wage determinations in September:
The Labor Department reports PERM and PWD processing time frames on its Foreign Labor Application Gateway website.
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 April and earlier, and is seeing PWDs for requests filed in June and earlier for H-1B cases and PERM cases.
IMPACT – MEDIUM
The United Kingdom has announced that an increase to the Immigration Health Surcharge will take effect on Oct. 27. Key Points:
Background: The Immigration Health Surcharge is an additional fee from the Home Office visa application fee. It allows migrants to access the UK’s National Health Service (NHS). The Immigration Health Surcharge has been mandatory since 2015.
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The U.S. Department of Homeland Security (DHS) and Department of Labor (DOL) have posted prepublication versions of two rules that will amend H-1B eligibility criteria and wage requirements for the H-1B, H-1B1 and E-3 categories and permanent labor certifications (PERM). The agencies will publish them in the Federal Register on Thursday, Oct. 8.
BAL Analysis: The DOL rule will take effect immediately upon publication on Thursday, while the DHS rule will take effect 60 days after publication, i.e., Dec. 7. Members of the public may comment on the rules. Litigation is expected, but it is too early to predict the likelihood of success. Since President Donald Trump signed the “Buy American and Hire American” Executive Order in 2017, the administration has indicated plans to impose stricter eligibility and wage requirements in high-skilled immigration categories. BAL is continuing to assess the impact of these regulations and will provide additional analysis in the coming days.
The U.S. Department of Homeland Security (DHS) and Department of Labor (DOL) will publish regulations in the coming days that will amend H-1B eligibility criteria and wage requirements for the H-1B, H-1B1, and E-3 categories and permanent labor certifications (PERM). The agencies announced the rules today, but have not yet officially published them.
BAL Analysis: Both agencies are expected to post the text of the rules in the coming days for public inspection, and then will officially publish them in the Federal Register. The DOL rule will take effect immediately upon publication, while the DHS rule will take effect 60 days after publication. Members of the public may comment on the rules. Litigation is expected, though it is too early to predict the likelihood of success. Since President Trump signed the “Buy American and Hire American” Executive Order in 2017, the administration has indicated plans to impose stricter eligibility and wage requirements in high-skilled immigration categories. BAL is continuing to assess the impact of these regulations and will provide additional analysis in the coming days.
The State Department will open registration for the Diversity Visa 2022 lottery on Wednesday. Up to 55,000 diversity immigrant visas will be available to countries with historically low immigration to the U.S.
Additional Information:
BAL Analysis: Those interested in registering for the DV-2022 lottery should prepare to do so early in the registration period. Individuals should beware of scams that frequently target DV lottery registrants. Registrants are reminded that the registration process is free and that the only way to enter the lottery and obtain lottery results is via the State Department’s E-DV website.
The presidential proclamation of June 22, 2020, currently bars the entry of many new immigrants, including new diversity visa recipients. While the State Department is proceeding with the program, if the ban remains in effect, it may be used as a basis to either deny lottery visa applications or to deny entry to the U.S.
Three regulations from the State Department affecting B-1 business visitor visas have cleared review by the Office of Management and Budget (OMB). The text of the rules is not yet available. The agency is expected to post the following rules in the coming weeks:
BAL Analysis: The text of these regulations is not yet available, and the agency will post them for public inspection at least one day before their official publication in the Federal Register. The proposed regulation will not take effect until after members of the public have had an opportunity to comment, whereas the two final regulations regarding bonds and diplomatic passports are expected to take effect shortly after publication without a comment period. BAL is monitoring the progression of these regulations and will provide additional information when text is published.
A federal judge in the Northern District of California has issued a preliminary injunction preventing the government from enforcing the work-visa ban with respect to the plaintiffs in the case and their members.
BAL Analysis: The government is expected to release updated guidance in response to the ruling. BAL will provide updates as soon as additional information is available.