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Registration for the fiscal year 2021 Diversity Immigrant Visa Program begins Wednesday, Oct. 2.
The program provides 50,000 immigrant visas (green cards) to people from countries with historically low levels of immigration to the United States. Applicants must meet certain eligibility requirements and are selected through a computerized lottery.
Key points:
Background: In order to qualify, registrants must have been born in an eligible country and meet educational or work requirements. Nationals of the following countries will be ineligible to apply for DV-2021: Bangladesh, Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, El Salvador, Guatemala, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam. Persons born in Hong Kong SAR, Macau SAR, and Taiwan are eligible.
A new requirement for the 2021 diversity immigrant visa program is that the principal registrant (not family members) must have a passport and enter a passport number. Exempted are nationals of communist-controlled countries who are unable to obtain a passport, stateless individuals and those who have received a waiver from the U.S. government. A lawsuit filed in federal court on Sept. 24 seeks to block the passport requirement from taking effect. A ruling is forthcoming.
Registrants must also have at least a high school education or its equivalent, or have worked two of the previous five years in an occupation that requires a minimum of two years of training or experience.
BAL Analysis: Those interested in entering the lottery should review the State Department’s Diversity Visa Instructions page and are reminded not to wait until the last week of the application period to submit their entry forms. Registration is free and registrants should be aware of fraud warnings and scams that target those attempting to register for the program.
This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.
Copyright © 2019 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.
U.S. Citizenship and Immigration Services has opened the Temporary Protected Status reregistration period for Syrian nationals.
Key dates:
Background: On Aug. 1, Acting Department of Homeland Security secretary Kevin McAleenan extended TPS for Syria for 18 months through March 31, 2021. Notably, however, DHS did not “re-designate” Syria for TPS, as it had previously. This means initial applicants cannot apply for the status, and must seek other forms of immigration relief to stay in the U.S.
The Trump administration has moved to end TPS designations for a number of other countries, including El Salvador, Haiti, Honduras, Nepal, Nicaragua and Sudan. Those terminations are currently on hold after a court ordered a temporary halt to the termination of TPS for four of the countries last fall, and DHS agreed to comply with the order for all six countries while it appeals the court’s decision. The litigation does not involve TPS for Syrian nationals.
BAL Analysis: Syrian TPS holders should reregister as soon as possible and no later than Nov. 22. Employers should be aware of the automatic extension of EADs for Syrian nationals.
Priority-date cutoffs in a number of employment-based categories will advance significantly with the start of the new fiscal year, Oct. 1, according to the State Department’s October 2019 Visa Bulletin. U.S. Citizenship and Immigration Services announced that it would follow the State Department’s Dates for Filing chart next month.
With the notable exception of China EB-2, Final Action Dates moved forward in almost all categories. The advancement came after significant retrogression in a number of categories in recent months.
Key movements on the Final Action Date chart:
EB-1
EB-2
EB-3
Application Final Action Dates for Employment-Based Preference Cases:
After the Visa Bulletin was posted, USCIS announced that in October it would follow Dates for Filing when determining whether applicants are eligible to file for adjustment of status.
Application Dates for Filing for Employment-Based Preference Cases:
Because Vietnam is not listed on the Dates for Filing chart, adjustment of status applicants from Vietnam should use the dates listed for “all other countries.”
USCIS also announced that family-based immigrants in most categories will be permitted to use the Dates for Filing chart that is applicable to family-sponsored immigrants in October. The Dates for Filing chart for family-based immigrants was also published in the October Visa Bulletin.
BAL Analysis: Officials said last month that they would make “every effort” to return Final Action Dates to at least what they were at the beginning of August. This has now happened except in China EB-2 and China EB-3. The announcement that USCIS would honor Dates for Filing is also good news, because in many cases the Dates for Filing chart has more progressive cutoff dates than the Final Action Dates chart.
The Department of Homeland Security submitted a letter today to a federal court, indicating that it hopes to propose a rule rescinding the H-4 employment authorization rule by the spring of 2020.
Background: The lawsuit challenges the 2016 rule, and DHS has repeatedly argued for the case to be delayed as it works to rescind that rule, on grounds that the rescission would render the case moot. After putting the case on hold for over a year, the court set a trial schedule earlier this year with oral arguments set for Sept. 27. Last week, DHS confirmed to the court that it was still working on the rescission rule, and in the latest filing, DHS called the spring 2020 target date “aspirational,” but argued for September oral arguments to be removed from the schedule and postponed indefinitely.
BAL Analysis: The H-4 EAD rule remains in place at this time, and eligible H-4 spouses may continue to apply for and receive both initial and renewal Employment Authorization Documents (EADs). The letter provides an updated time frame from DHS regarding its plan to rescind the rule. BAL is closely following the progress of the H-4 rescission rule and will provide further updates as they become available.
Your employee’s visa priority date has become current and she has completed her medical exam, background check, fingerprints, and a visa interview. More than a year passes, and she still has not received her green card.
What is the hold up? The most likely reason is visa bulletin retrogression. Because of annual green card quotas and limits on how many visas any one country may use, the State Department regulates how many immigrant visas the government issues each month by publishing “cutoff dates” in the visa bulletin. Applicants only move through the queues if their priority date (filing date of their immigrant petition) falls before the cutoff date for their category. By advancing the cutoff dates, the government opens the door to more filings and allows more immigrant visas to be issued that month. Each employment-based category and nationality has its own queue and cutoff date.
Occasionally, the government needs to dial back the number of visas it is issuing each month to ensure that it does not exceed the annual quotas. The cutoff dates then move backward—a process called “retrogression”—and the government effectively reduces the number of green cards that will be approved that month.
For employees, this means the green card line does not move forward in a consistent manner but will actually lurch forward and backward over the course of several years. Furthermore, an employee whose priority date becomes current may only have a short time to file a green card application because the priority date for his or her category may retrogress the next month.
Sometimes the cutoff dates can retrogress for months. During periods of retrogression, employers may need to extend visas (such as H-1Bs or L-1s), green card-related employment authorization and travel permission documents for employees.
Visa retrogression frequently occurs toward the end of the government fiscal year (which ends on Sept. 30), but then the dates will jump forward beginning Oct. 1 when green card quotas are reset for the new fiscal year.
Visa bulletin movement has practical implications for employee mobility, job portability and business planning. Employers are encouraged to keep pace with changing green card wait times to better prepare for bends in the road—both when retrogression creates lengthy delays, and when rapid advancement requires quick action.
Mark T. Yelich is a Senior Associate in the McLean, Va. office of Berry Appleman & Leiden LLP.
The information contained here is meant to be informational, and while BAL has made every effort to ensure the accuracy of the information, it is not promised or guaranteed to be complete. Readers of this information should not act upon any information contained on this alert/blog without seeking professional counsel. This alert does not constitute legal advice or create an attorney-client relationship. Any reference to prior results, does not imply or guarantee similar future outcomes.
The Labor Department has posted processing times current as of Aug. 31 for permanent labor certification (PERM) applications and prevailing wage determination (PWD) requests.
PERM Processing: Applications filed in June and earlier are now being adjudicated, according to the department. Audit reviews are being conducted on applications filed in January and earlier, and appeals filed in May and earlier are being reviewed for reconsideration.
Average PERM processing times in August:
PWD Processing: The National Prevailing Wage Center is currently processing requests filed in May and earlier for H-1B and PERM cases. Redeterminations are being considered on appeals filed in August and earlier for H-1B cases and July and earlier for PERM cases. Center director reviews are being conducted on appeals filed in June and earlier for PERM cases. The department reported that it had no center director reviews pending for H-1B cases.
Average times for issuance of prevailing wage determinations in August:
The Labor Department reports PERM and PWD processing time frames on its iCERT page.
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 beginning to see PWDs for requests filed in May and earlier.
Copyright © 2019 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries, please contact copyright@bal.com.
The Department of Homeland Security (DHS) has revealed plans to collect social media information from applicants for a number of immigration benefits, including visa-free travelers, and applicants for adjustment of status and naturalization, among others. The proposal, published Wednesday, Sept. 4 in the Federal Register, follows the State Department’s move to add questions about social media history to the various U.S. Citizenship & Immigration Services (USCIS) application forms and Customs and Border Protection (CBP) online traveler applications.
Applicants would be required to provide any social media user identifications (i.e., usernames, identifiers, or handles) they have used in the past five years on any of 19 social media sites. Passwords will not be requested and should not be provided.
The applications/petitions that would be affected are:
Employment authorization programs would not be affected. DHS has opened up a 60-day public comment period on its new proposal. Those wishing to submit comments must do so by Nov. 4, 2019.
BAL Analysis: The DHS plan is consistent with President Donald Trump’s goal of implementing “extreme vetting” of visa applicants and immigrants to the United States. While the proposed changes of asking for social media information directly from applicants have not yet taken effect, DHS stated in its Federal Register notice that it already collects publicly available social media information.
While use of a particular social media platform alone is unlikely to trigger a direct visa denial or border stop, applicants’ online profiles and any information publicly available on their accounts, including employment details, could provide grounds for further questioning and ultimately lead to denial or refused entry. Applicants should make sure their social media settings and profiles are up to date and be prepared to answer any questions regarding public information available on their social media accounts at their visa interview.
Those wishing to provide comment on the DHS proposal are encouraged to work closely with BAL in doing so.
U.S. Citizenship and Immigration Services (USCIS) has posted a prepublication version of a proposal to charge a $10 fee for each H-1B registration under the new process that is expected to apply to fiscal year 2021 cap filings.
Background: USCIS finalized a regulation in January 2019 to change the H-1B lottery process by (1) switching the order in which the agency selects petitions to increase the number of advanced-degree holders chosen, and (2) requiring petitioners to file an online registration for each individual they seek to sponsor for a cap-subject H-1B visa. The agency only implemented the first part of the rule and delayed implementation of the electronic registration requirement.
BAL Analysis: USCIS has been taking steps to implement the electronic registration requirement for the H-1B filing season that will begin in April 2020, but has not yet released details on the new process. A group of business and immigration organizations recently sent a letter to the agency seeking additional information and clarification regarding its plans. BAL is closely monitoring the progress of these changes to the H-1B lottery process and will provide additional details as they become available.
The current version of the Form I-9, Employment Eligibility Verification, will expire at the end of this month on Aug. 31. However, as U.S. Citizenship and Immigration Services (USCIS) has not yet released a new form, the E-Verify website has confirmed that employers may continue to use the current version beyond that date until a new version is introduced.
Background: Employers must complete the Form I-9 for each person they hire to perform labor or services in the U.S. in return for wages or other remuneration, to verify their identity and authorization to work in the U.S. Employers must also use the Form I-9 to reverify the employment authorization of individuals with temporary forms of work authorization.
BAL Analysis: Employers should be aware of the expiration date but continue to use the current version of the Form I-9 until a new version is released. It is unclear when USCIS will release a new version of the form, but according to the March notice, the new version of Form I-9 is not expected to contain significant substantive changes. The agency is expected to post an announcement of the new version of the form and will set implementation dates, notifying employers of when it will stop accepting the old version and begin requiring the new version.
The employment-based third preference (EB-3) category for all nationalities is immediately unavailable through the end of the fiscal year, according to an update the State Department official in charge of the visa bulletin, Charlie Oppenheim, has provided to the American Immigration Lawyers Association.
Background: The EB-3 category covers professionals in jobs requiring at least a bachelor’s degree, skilled workers in jobs requiring a minimum of two years of experience and other workers with less than two years of experience. In the recently published September visa bulletin, China and India EB-3 categories retrogressed with immediate effect this month, and further corrective action was predicted. India EB-1 visas were also exhausted for the fiscal year.
BAL Analysis: The corrective action indicates the high demand for immigrant visas and seasonal filling of quotas toward the end of the fiscal year. Adjustment of status applicants in the EB-3 category should plan for longer wait times, and possibly a slower recovery to pre-August priority-date cutoffs following Oct. 1 when new visas become available. Applicants should continue to plan for their green card interviews but may be contacted by USCIS to reschedule them.