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U.S. Citizenship and Immigration Services has announced that it will resume premium processing for certain cap-exempt H-1B petitions.
Key points:
Background: USCIS suspended H-1B premium processing in April, saying the reason was to focus on backlogged petitions. USCIS said Monday it “plans to resume premium processing of other H-1B petitions as workloads permit.”
BAL Analysis: While USCIS has resumed premium processing for some H-1B petitions and said it will “make additional announcements with specific details related to when we will begin accepting premium processing” for other petitions, the service is still not available for most H-1B petitions. Employers should continue to expect delays in H-1B receipt notices for H-1B petitions for which premium processing remains suspended. BAL will continue following USCIS developments on this issue and will update clients if premium processing is resumed for more H-1B petitions.
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 processing times that are current as of June 30 for permanent labor certification (PERM) applications and prevailing wage determination requests.
PERM processing: Applications filed in April and earlier are now being adjudicated, according to the Labor Department. Audit reviews are being conducted on applications filed in December and earlier, and appeals filed in May and earlier are being reviewed for reconsideration.
Average PERM processing times in June:
PWD processing: The National Prevailing Wage Center is currently processing requests filed in April and earlier for H-1B and PERM cases. Redeterminations are being considered on appeals filed in May or earlier for H-1B cases and January or earlier for PERM cases. Center Director Reviews are being conducted on appeals filed in April for H-1B and PERM cases.
Average time for issuance of prevailing wage determinations in June:
The Labor Department reports PERM and prevailing wage determination processing timeframes on its iCERT page.
BAL Analysis: BAL’s internal case tracking is basically consistent with the Labor Department processing times. BAL is seeing approvals for PERM applications filed in April 2017 or earlier and is awaiting prevailing wage determinations for requests filed in May or later.
The Supreme Court on Wednesday affirmed a lower court’s ruling requiring the government to exempt grandparents and other close relatives of U.S. residents from the limited version of President Donald Trump’s travel ban that took effect June 29.
Key Points:
Background: The Supreme Court ruled on June 26 that a limited version of Trump’s 90-day ban on travel to the U.S. by nationals of Iran, Libya, Somalia, Sudan, Syria and Yemen could take effect, but carved out an important exemption for those with a “bona fide” relationship to U.S. persons or entities. The government subsequently issued guidance exempting people with a parent, parent-in-law, spouse, child, adult son or daughter, son-in-law, daughter-in-law or sibling residing in the U.S. The State of Hawaii sued, saying that grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces and nephews should also be provided exemptions under the Supreme Court ruling. Judge Watson agreed. While the Supreme Court affirmed this portion of his ruling, it stayed a separate portion of his ruling that would have exempted a greater number of refugees from enforcement of Trump’s executive order.
BAL Analysis: Overall, those with legitimate travel needs to visit family or for work or business will not be kept from traveling to the United States. Litigation is ongoing, however, and BAL is carefully monitoring the situation and will continue to provide updates on important developments. An FAQ on the Executive Order and who it applies to is available here.
A federal judge in Hawaii has ruled that the government must exempt grandparents and other close relatives of U.S. residents from the limited version of President Donald Trump’s travel ban that took effect June 29.
BAL Analysis: The State Department and Justice Department are expected to review the decision and issue additional guidance. The administration will likely appeal the ruling, which broadens the categories of people who can qualify for an exemption to the travel ban based on a family tie to someone in the U.S. On the whole, those with legitimate travel needs to visit family or for work or business will not be kept from traveling for the time being, though the litigation is ongoing. BAL is carefully monitoring the situation and will continue to provide updates on important developments. An FAQ on the Executive Order and who it applies to is available here.
U.S. Citizenship and Immigration Services announced this week that it will release a new version of Form I-9 for checking employment eligibility of newly hired employees. The form will be available Monday and will become mandatory beginning Sept. 18.
BAL Analysis: Employers should take note of the change and ensure that their human resource departments switch to the new forms no later than Sept. 18.
U.S. Citizenship and Immigration Services has announced that in August it will only accept employment-based adjustment-of-status applications based on the Application Final Action Dates chart.
The Dates for Filing chart published in the State Department’s August Visa Bulletin will not apply. Employment-based immigrants must follow the Application Final Action Dates chart (below) to determine whether they are eligible to file their adjustment-of-status petitions with USCIS. Only applicants with priority dates earlier than the dates listed in the chart will be permitted to file their applications for adjustment of status in August.
Application Final Action Dates for Employment-Based Preference Cases:
Family-based immigrants will also be required to use the Final Action Dates chart applicable to family-sponsored immigrants, which was also provided in the August Visa Bulletin.
Cutoff priority dates will be imposed for this first time this year in EB-2 categories for El Salvador, Guatemala and Honduras, Mexico, the Philippines and All Other Chargeability Areas, according to the State Department’s August Visa Bulletin. Cutoff priority dates will remain the same in all EB-1 categories and will advance across most EB-3 categories.
Key movements in priority cutoff dates:
Additional notes: All EB-1 and categories other than those for China and India will remain current. The cutoff priority date for EB-1 China and EB-1 India will remain at Jan. 1, 2012. It is likely that the retrogression for certain categories is being undertaken to control the number of visas issued between now and the end of the fiscal year on Sept. 30, as the number of available immigrant visas runs out. The number of immigrant visas will increase again under the 2018 fiscal year’s annual limits. At that time, all EB-1 categories and all EB-2 categories other than China and India are likely to become current.
The State Department also released its Dates for Filing chart for August 2017. Applicants seeking to file for adjustment of status are reminded that the Dates for Filing chart does not take effect unless USCIS confirms it via a web posting in the next week or so. BAL will update clients once the State Department confirms whether the Dates for Filing chart can be used in August.
The Trump administration will delay implementation of the International Entrepreneur Rule and has signaled its intent to rescind the rule altogether, according to a notice that is set to be published Tuesday in the Federal Register. The Trump administration’s moves to delay and possibly scrap the rule, which was finalized days before former president Barack Obama left office, are not surprising after the rule was sent to the Office of Management and Budget for additional review a little more than a month ago.
BAL Analysis: BAL supported the International Entrepreneur Rule and advocated to keep it in place. The administration’s moves to delay and eventually scrap the rule are unsurprising, however, especially after it was sent back to OMB for additional review this spring.
This alert has been provided by the BAL Global Practice group. For additional information, please contact your BAL attorney.
IMPACT – MEDIUM
Indian nationals are now eligible to apply for the U.S. Global Entry program, a trusted-traveler program that allows preapproved, low-risk travelers to use automated kiosks when clearing immigration at designated airports rather than having to wait in line. India is the 11th country whose nationals will be eligible for Global Entry.
Background: Global Entry participants may bypass manned immigration inspection queues at entry points and undergo automated clearance at 53 U.S. airports and 15 preclearance locations, significantly reducing wait times upon arrival. India joins Argentina, Colombia, Germany, Mexico, the Netherlands, Panama, Singapore, South Korea, Switzerland and the United Kingdom among countries that have Global Entry arrangements with the U.S. Canadian nationals and those enrolled in NEXUS are also permitted to use Global Entry kiosks. Additional details are available on this CBP website.
BAL Analysis: Indian nationals who are frequent travelers will benefit from the program, as their entry clearance will be expedited at dozens of airports. Global Entry participants may also benefit from TSA security prescreening at designated international airports before boarding a flight to the U.S. Travelers are reminded that Global Entry does not ensure admission and they must still secure an appropriate visa before travel.
The Trump administration is considering moving the issuance of visas, passports and other travel documents from the State Department to the Department of Homeland Security, according to a report commissioned by Secretary of State Rex Tillerson aimed at slashing the State Department’s budget by a third.
The move would provide “an opportunity to elevate efficiency and reduce cost,” according to recommendations in the report by private consulting firm Insigniam.
The State Department oversees the issuance of 10 million visas per year at consulates around the world, and such a change would represent a seismic shift in resources and agency functions.
Jeffrey Gorsky, Senior Counsel in BAL’s Washington, D.C. office, who previously headed the Legal Advisory Opinion section of the State Department’s Visa Office, said that the change would likely require Congressional approval, and, if implemented, could mean that visa decisions could be subject to judicial review. Currently, consular decisions on whether to grant or deny visas fall under the doctrine of non-reviewability and cannot be reviewed by a court.
In addition to the cost-cutting rationale, the report said that giving DHS authority over visa issuance would “elevate security at our borders.” Gorsky, however, said that enhanced security screening measures since the Sept. 11, 2001 terrorist attacks have largely negated this argument.
BAL Analysis: BAL is following this proposal and will report on any significant developments that could affect changes in how visas and other travel documents are issued. While there appears to be support in part of the administration for transferring these functions from the State Department to DHS, the likely need for Congressional action makes this transfer unlikely at this time.