Search
Contact
Login
Share this article
Priority cutoff dates will advance modestly across EB-2 and EB-3 categories, according to the State Department’s March Visa Bulletin.
Key movements in cutoff dates:
Additional notes: All EB-1 categories will remain current, as will all EB-2 categories other than China and India. The EB-3 categories for El Salvador, Guatemala and Honduras, Mexico and All Other Chargeability Areas will also remain current.
Application Final Action Dates for Employment-Based Preference Cases:
The State Department also released its Dates for Filing chart for March 2018. 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. BAL will update clients once the State Department confirms whether the chart can be used in January.
This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.
Copyright © 2018 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 Labor Department has posted processing times current as of Jan. 31 for permanent labor certification (PERM) applications and prevailing wage determination (PWD) requests.
PERM processing: Applications filed in August and earlier are now being adjudicated, according to the department. Audit reviews are being conducted on applications filed in June and earlier, and appeals filed in December and earlier are being reviewed for reconsideration.
Average PERM processing times in January:
PWD processing: The National Prevailing Wage Center is currently processing requests filed in November and earlier for both H-1B and PERM cases. Redeterminations are being considered on appeals filed in December and earlier for H-1B and PERM cases. Center director reviews are being conducted on appeals filed in December for PERM cases. The department reported that it had no center director reviews pending for H-1B cases as of Jan. 31.
Average times for issuance of prevailing wage determinations in January:
The Labor Department reports PERM and PWD processing timeframes on its iCERT page.
BAL Analysis: BAL’s internal case tracking is mostly consistent with the Labor Department processing times. BAL is seeing approvals for PERM applications filed in early September and is awaiting PWDs for requests filed in November and earlier.
President Donald Trump signed a national security memorandum Tuesday to establish a National Vetting Center. The center will be charged with developing more comprehensive vetting standards for those looking to immigrate or travel to the United States. Trump’s memo gave the Department of Homeland Security (DHS) six months to develop an implementation plan to make the vetting center operational.
Key Points:
BAL Analysis: Tuesday’s announcement focused solely on the creation of a new, centralized center for security screening and no mention was made of any changes to screening standards or criteria. It is too early to know whether the creation of the center will lead to lengthier screening processes for visa applicants or others traveling to the United States. More will be known about what impact the center may have once DHS puts together its implementation plan, which it will be required to do in the next six months. BAL will alert clients once additional information about how the center will operate becomes available.
Two new digital features introduced by U.S. Customs and Border Protection are intended to encourage compliance by foreign nationals traveling to the U.S. on the Visa Waiver Program and prevent them from overstaying.
Key points:
Background: The Visa Waiver Program allows nationals of 38 participating countries to travel to the U.S. for up to 90 days for business or tourism without needing to obtain a visa at a U.S. Consulate before travel. Travelers must register and obtain an Electronic System Travel Authorization (ESTA) before boarding a flight.
BAL Analysis: Individuals traveling to the U.S. on the Visa Waiver Program may use the date-calculation tool on the I-94 website and should expect to receive a reminder email 10 days before their lawful stay will expire. U.S. CBP is also warning travelers to watch out for phishing or other email scams from senders other than the official email address.
After Attorney General Jeff Sessions made a determination that the Deferred Action for Childhood Arrivals program was an “unconstitutional exercise of authority by the Executive Branch,” the Department of Homeland Security announced that it would stop renewing DACA applications that expire on or after March 6. With less than 25 business days until the program ends and no clear path for legislative relief for DACA beneficiaries, companies should begin preparing for the increasingly likely outcome that they will need to terminate key employees in the weeks and months ahead. BAL has drafted an FAQ that addresses when the program is scheduled to end, what steps companies employing DACA employees should take in the coming weeks and the possibility that Congress might pass DACA legislation. The full FAQ is available here.
U.S. Citizenship and Immigration Services has confirmed important details about the upcoming H-1B cap season, in light of concerns that proposed changes to H-1B visas by the Trump administration could affect the filing season, which begins April 2. The agency’s Service Center Operations Directorate provided the information to the American Immigration Lawyers Association.
Background: In December, the Department of Homeland Security released its 2018 regulatory agenda, which included changes in how H-1B cap petitions are selected, such as an electronic preregistration system. Other agenda items include changes to the definition of “specialty occupation,” qualifying criteria and minimum salaries paid to H-1B employees in order to protect American workers.
BAL Analysis: Employers should expect a lottery selection process similar to those in previous cap seasons. Businesses should assume that premium processing will not be available for H-1B cap-subject petitions at the start of filing season and factor that into their schedules. Although it is not clear how long the suspension will last, it will presumably be shorter than the six-month suspension last year. Unlike last season, premium processing for non-cap H-1B cases will not be interrupted. BAL is closely following any changes to H-1B cap season and will report any developments, including regulatory proposals that could affect how petitions are adjudicated this summer.
President Donald Trump released an outline of an immigration plan Thursday that would provide a pathway to citizenship for as many as 1.8 million undocumented immigrants who were brought to the United States as children in exchange for a handful of hard-line measures, including funding for a border wall and changes to family-based immigration.
The Trump framework would:
BAL Analysis: While Trump’s framework for the ongoing immigration negotiations provides a glimpse of where the White House stands on some key issues, it only offers hints at what final legislation might look like. The changes to family migration in particular would mark a dramatic change to the country’s legal immigration system. BAL will continue following the immigration negotiations and will provide clients with updates as more information becomes available.
U.S. Sen. Orrin Hatch has introduced his latest version of the Immigration Innovation Act or “I-Squared.” The legislation would increase the number of H-1B visas available annually, eliminate the green card backlog for most employment-based immigrants and add new attestation and enforcement mechanisms to the H-1B program. Hatch introduced similar legislation in 2013 and 2015.
The 2018 version of I-Squared would:
BAL has prepared a one-page summary and an analysis of the I-Squared bill.
BAL Analysis: Business coalitions have expressed support for the bill and view it as a positive development for high-skilled immigration. BAL is working closely with the legislators sponsoring this bill and is monitoring all legislative developments in Congress. BAL will continue to provide updates as additional information becomes available.
The federal government shutdown ended Monday after the U.S. Senate agreed to a short-term extension of the debt limit through Feb. 8. Parties reached agreement after agreeing to tackle immigration legislation in the weeks ahead.
Legislative landscape: Deep policy differences remain
Neither the House nor the Senate has passed immigration addressing the status of Dreamers, and the bases of both parties remain far apart. The primary legislative vehicle for Republicans in the House is Rep. Bob Goodlatte’s (R-Va.) Securing America’s Future Act (H.R.4760), while Democrats in the Senate have rallied behind the bipartisan “Gang of 6” proposal. Within the next 17 days, both chambers of Congress will need to resolve stark policy differences or set those issues to the side. For example:
Dramatic reductions in legal immigration: Likely outcome or bargaining chip?
A key sticking point in negotiations is whether relief for Dreamers should be packaged with changes to the legal immigration system. The White House and Republicans in both the Senate and the House are seeking significant reductions in family-based immigration levels, which they often refer to as “chain migration.” Those proposals are not minor tweaks. If enacted, those proposals would constitute the most significant reduction in legal immigration in a century. Goodlatte’s bill would reduce overall legal immigration levels by approximately 45 percent, and family-based immigration would drop by approximately 62 percent. A full analysis of the Goodlatte bill is available here.
Though advocates for reduced immigration levels are well funded and have extensive influence on immigration policy, it is unclear whether that issue will become part of any Dreamer compromise.
BAL Analysis: The short-term extension does not resolve the pressing question: Will the immigration legislative debate evolve into a kitchen soup “comprehensive” debate or will the parties agree to scale it back to a discussion over relief for Dreamers, border security and tweaks to the system? President Donald Trump remains the wild card in the debate, as both parties believe that his support can be secured. BAL is working with business coalitions and will keep clients apprised of developments. For questions or inquiries regarding the analyses, please contact BALgov@bal.com.
This alert has been provided by the BAL U.S. Practice group.
The Supreme Court said Friday that it will rule on legal challenges to the latest version of President Donald Trump’s travel ban. Oral arguments are set for April and a ruling is expected before the end of the Court’s term in June.
Background: The latest version of Trump’s travel ban was issued in September after two earlier versions were met with resistance in the courts. The third version applied to more countries, but was also more carefully crafted to withstand judicial scrutiny. The Court is now set to rule on the merits of the legal challenges, including whether the president had the legal authority under the Immigration and Naturalization Act to issue the ban and whether it represents a violation of the First Amendment’s Establishment Clause.
BAL Analysis: The Court has the opportunity to settle some of the legal questions that have surrounded the travel ban and its earlier iterations for almost a year. The Court’s previous order allowing the travel ban to remain in place pending appeal indicates that the Court may be inclined to support this version of the ban, but the Circuit Court opinions, which had not yet been considered by the Court, may influence the justices’ final decision.
The current version of the ban has not dramatically expanded the number of employees subject to travel restrictions for most companies. BAL released an FAQ on the restrictions when they were released in September. The analysis is available here.