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The U.S. Labor Department has posted current processing times as of March 3 for permanent labor certification (PERM) applications and prevailing wage determination requests.
PERM processing: Applications filed in December and earlier are currently being adjudicated, according to the Labor Department. Audit reviews are being conducted on applications filed in July and earlier, and appeals filed in December and earlier are being reviewed for reconsideration.
Average PERM processing times in February:
PWD processing: The National Prevailing Wage Center is currently processing requests filed in November and earlier for H-1B cases and PERM cases. Redeterminations are being considered on appeals filed in December and earlier for H-1B cases and PERM cases. Center Director Reviews are being conducted on appeals filed in November for H-1B and PERM cases.
Average time for issuance of prevailing wage determinations in February:
The Labor Department reports PERM and prevailing wage determination processing timeframes on its iCERT page.
BAL Analysis: BAL’s internal case tracking is consistent with the Labor Department processing times. BAL is seeing approvals for PERM applications filed in December 2016 or earlier and is awaiting prevailing wage determinations for requests filed in November 2016.
This alert has been provided by the BAL U.S. Practice group. For additional information, please contact BerryApplemanLeiden@bal.com.
Copyright © 2017 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 U.S. Citizenship and Immigration Services decision to temporarily suspend premium processing of all H-1B petitions may cause significant disruption for companies and workers seeking H-1B status, BAL Partner Lynden Melmed told the Washington Post for an article published Monday.
Melmed, who previously served as chief counsel of USCIS, told the Post that the suspension of premium processing could prevent foreign graduates of U.S. universities from leaving the U.S. while they are awaiting a determination on their visa. The suspension could also impact H-1B renewal applicants if the automatic eight-month extension of their visas expires before H-1B status is renewed.
“The time frame for when an employee can start or whether they can continue working is now taken out of the company’s hands and subject entirely to government processing times,” Melmed told the Post.
BAL released a Q&A this week that addresses the government’s reasoning for suspending premium processing, whether the suspension will affect the fiscal year 2018 H-1B lottery and how the suspension will affect foreign graduates of U.S. universities and current H-1B holders, among other topics.
The Post report also touched on Silicon Valley tech companies’ response to President Donald Trump’s executive order revising a travel ban that had stalled in federal court. Many tech companies remain critical of Trump’s actions in this area.
The new executive order is set to take effect March 16 and calls for a 90-day halt to visa issuance to nationals of six countries – Iran, Libya, Somalia, Sudan, Syria and Yemen. Exemptions were put in place for visa holders, green card holders and dual nationals.
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.
BAL Partner Lynden Melmed testified Monday before the Maryland House of Representatives in support of high-skilled immigration.
The Economic Matters Committee held a hearing in connection with legislation that would impose reporting obligations on Maryland companies that hire H-1B and L-1 workers in the state.
Howard University Professor Ron Hira, a staunch opponent of H-1B visa programs, testified that companies pay H-1B workers below-market wages and thereby exploit the H-1B program to undercut American workers.
Mr. Melmed, who previously served as chief counsel of U.S. Citizenship and Immigration Services (USCIS), testified about the benefits of high-skilled immigration to the Maryland economy. He cited an example of BAL clients who launched their business at the University of Maryland, obtained H-1B status, and are now building their business in the state. Mr. Melmed also testified about the wide range of industries in Maryland that utilize the H-1B category.
“I have no doubt that high-skilled immigrants create jobs in Maryland and contribute to the state’s economy,” Mr. Melmed said. “They are smart, they are entrepreneurial, and they help Maryland companies compete in a global economy.”
States are playing an increasing role in immigration policy. From Deferred Action for Childhood Arrivals (DACA) to the Executive Order to refugee resettlement, states are more engaged than ever. The Maryland hearing represents one of the first efforts by a state legislature to engage on high-skilled immigration policy.
Read a transcript of Mr. Melmed’s full testimony here.
Media Contact: Emily Albrecht Senior Director — Marketing & Communications ealbrecht@bal.com 469-559-0174
President Donald Trump signed an Executive Order Monday morning, replacing a Jan. 27 travel ban that stalled in federal court. The revised order will take effect March 16 and will halt visa issuance to nationals of six countries—Iran, Libya, Somalia, Sudan, Syria and Yemen—for 90 days.
Key points:
Background: Trump signed an Executive Order Jan. 27, denying entry to the U.S. to nationals of seven countries. Several federal courts put portions of the order on hold, however, and after the Ninth Circuit court of appeals upheld a nationwide injunction, the Trump administration set about revising the order. Monday’s order was drafted in part to survive legal scrutiny, but additional litigation is expected. The March 16 effective date should give courts enough time to review the legality of the order before it takes effect. For additional information on Monday’s Executive Order, please see DHS’s fact sheet and Q&A.
BAL Analysis: BAL will continue to analyze Monday’s order and provide updates on its expected impact. From now until March 16, foreign nationals should continue to be able to enter the U.S. under the rules that were in place before the initial Executive Order was signed. Employers with personnel inside the U.S. who would be subject to the new order, however, should continue to advise employees to exercise caution in planning travel.
U.S. Citizenship and Immigration Services will temporarily suspend premium processing of all H-1B petitions filed on and after April 3, 2017 – the first day of the H-1B cap filing season. The suspension will include all H-1B petitions, including cap petitions subject to the undergraduate and master’s degree quotas, as well as cap-exempt petitions, extensions and change of status requests. The suspension may continue for as long as six months.
Background: USCIS announced the suspension Friday afternoon. While the agency usually suspends premium processing during the busy cap season, this year the suspension in premium processing includes all H-1B petitions.
The agency indicated the reason for the suspension of premium processing is to focus on backlogged petitions and to prioritize H-1B extensions that are nearing the 240-day mark. Employment authorization is automatically extended for timely filed H-1B extensions for up to 240 days. Government processing delays have led to loss of work authorization and an increase in premium processing requests.
USCIS will reject premium processing requests received on and after April 3, and will also return premium processing fees that were filed before April 3 where the agency does not take action on the case within 15 days.
Employers filing H-1B petitions may be eligible for expedited processing, but they must meet one of the criteria, such as severe financial loss to the company or individual, emergency situations, a compelling interest to USCIS, national interest, humanitarian reasons or USCIS error. Expedited requests are decided on a case-by-case basis at the discretion of USCIS.
BAL Analysis: Employers should expect delays in H-1B cap receipt notices for fiscal year 2018. Additionally, employers should track employees requiring H-1B extensions to prevent them from falling out of status and, in light of the suspension, plan to file any premium process requests by the end of March.
IMPACT – MEDIUM
The European Parliament adopted a nonbinding resolution Thursday, calling on the EU to impose a visa requirement on U.S. nationals.
The resolution was the latest move in a long-running dispute between the EU and the U.S., with some EU officials saying that the U.S. should not have visa-free access to the EU unless it lifts visa requirements on five member states: Bulgaria, Croatia, Cyprus, Poland and Romania.
The European Parliament called on the EU Commission to address the matter.
“The EU Commission is legally obliged to take measures temporarily reintroducing visa requirements for US citizens, given that Washington still does not grant visa-free access to nationals of five EU countries,” a statement from parliament said. “In a resolution approved on Thursday, MEPs urge the Commission to adopt the necessary legal measures ‘within two months.’”
The dispute dates back to 2014, when the EU issued a “notification of non-reciprocity” over the U.S.’s visa policies. The Commission issued a report on the matter in April 2016, outlining the economic and political consequences of suspending visa waivers for U.S. nationals.
Canada also imposes visa requirements on Bulgarian and Romanian citizens, but has said those requirements will be lifted Dec. 1.
BAL Analysis: While Thursday’s vote is nonbinding, it nonetheless was a strong statement from the EU about the U.S.’s visa policies toward five member states. The likelihood of imposing a visa requirement on U.S. nationals seems remote, especially given the economic and political consequences and the fact that the U.S. would most likely reciprocate by imposing visa requirements on all EU nationals traveling to the U.S. That said, U.S. nationals traveling to Europe should make sure they are traveling with the appropriate documentation and prepare for the possibility of additional scrutiny at EU points of entry.
This alert has been provided by the BAL Global Practice group. For additional information, please contact BerryApplemanLeiden@bal.com.
President Donald Trump has announced that he will sign an Executive Order concerning terrorist travel and security screening of foreign nationals early next week. It is expected that Trump will sign a separate Executive Order related to work visas, though the timing of that action has not yet been confirmed.
Terrorist Screening Executive Order
On Jan. 27, Trump signed an Executive Order that temporarily suspended the entry of nationals from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen. That Executive Order also suspended the U.S. Refugee Admissions Program (USRAP) for a period of four months.
A number of parties challenged the Executive Order on both statutory and constitutional grounds, and several courts enjoined implementation of parts of the Executive Order. In Seattle, a federal District Court issued a nationwide injunction, which was later upheld by a three-judge panel of the Ninth Circuit Court of Appeals. Currently, the travel suspension for nationals of the designated countries is not in effect and the U.S. refugee program is continuing as before as well.
New Developments
Yesterday, the president announced at a news conference that he will sign a new Executive Order related to security screening of foreign nationals. Later in the day, the Justice Department filed a motion with the Ninth Circuit Court of Appeals asking the court to stay further review pending issuance of the new Executive Order. Last night, the Court of Appeals agreed to pause further review of the Executive Order.
What to Expect
The text of the new Executive Order has not been released, but the government is expected to make changes to the Executive Order to increase the likelihood that it will survive judicial review. If the government retains the structure of the prior Executive Order, the government may not include foreign nationals who are permanent residents (i.e., green card holders) and limit application of the Executive Order to individuals who are outside of the U.S. The government could also change the underlying criteria and move away from a nationality-based travel suspension.
Separate and apart from the scope of the Executive Order, the government will need to decide how to implement the new order and coordinate its rollout with the ongoing litigation. Will the government provide a delayed effective date? Will the government provide notice to courts before issuing the Executive Order, or will the government act unilaterally and then notify the courts? The answers to these questions could dictate when the new Executive Order takes effect.
Opponents of travel restrictions will challenge any new Executive Order in federal court. It is difficult to predict at this time whether courts will allow the new Executive Order to go into effect or whether one or more courts will again halt implementation of the Executive Order pending a ruling on the legality of the government’s actions.
Travel Caution
Though the president stated that he will sign the Executive Order on Tuesday or Wednesday of next week, that timeline could change. Companies with employees who could be subject to the original Executive Order should continue to exercise caution. Affected employees should not depart from the U.S. Travelers who are outside the U.S. who could be subject to the original Executive Order are encouraged to seek entry before any new Executive Order is signed.
Work Visa Executive Order
The administration is expected to issue an Executive Order concerning employment-based visas, though timing is uncertain. The president did not directly address the work visa Executive Order during the news conference and no mention was made of it in the court filing. A draft order was leaked several weeks ago,and that version would direct the relevant government agencies to:
BAL Analysis: BAL continues to follow immigration-related developments in the Trump administration closely and will alert clients of any significant changes should they occur.
U.S. Citizenship and Immigration Services has announced that in March 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 March Visa Bulletin, will not apply. Employment-based immigrants must follow the Application Final Action Dates chart (below) to determine if 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 March.
Application Final Action Dates for Employment-Based Preference Cases:
Family-based immigrants, however, will be permitted to use the Dates for Filing chart applicable to family-sponsored immigrants, which also is contained in the March Visa Bulletin.
A three-judge panel for the Ninth Circuit court of appeals has unanimously ruled against the federal government’s request to reinstate President Donald Trump’s executive order barring nationals of seven countries from entering the United States.
The 29-page ruling was issued just two days after the panel heard arguments on the Justice Department’s motion for an emergency stay of a lower court’s ruling to place the executive order on hold pending further litigation. In a per curiam decision, the judges upheld the ruling, saying the government had demonstrated neither a “likelihood of success on the merits” nor that keeping the lower court’s order in place would result in “irreparable injury.”
“The Government has pointed to no evidence that any alien from any of the countries named in the (executive order) has perpetrated a terrorist attack in the United States,” the judges wrote.
Trump’s executive order, issued Jan. 27, barred nationals of Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen from entering the country.
BAL Analysis: The court’s ruling means that for the time being foreign nationals should be able to enter the U.S. under the rules that were in place before the executive order was signed. Employers should note, however, that the legal battle is ongoing and that it is possible the executive order will be reinstated at some point. Employers with personnel inside the U.S. who would be subject to the travel ban should advise affected employees against travel outside the U.S. at this point. BAL is closely monitoring developments and will update clients on any changes.
Jeff Sessions was sworn in as attorney general Thursday after the U.S. Senate confirmed his nomination to the post Wednesday evening.
Sessions was one of President Donald Trump’s key cabinet appointments. The Justice Department oversees the Board of Immigration Appeals (BIA), the Executive Office of Immigration Review (EOIR), the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), the Office of Immigration Litigation (OIL) and U.S. attorneys’ offices responsible for civil and criminal enforcement of immigration laws.
“I fully understand the august responsibilities of that office,” Sessions, a longtime U.S. senator from Alabama, said after the Senate confirmed him in a 52-47 vote.
BAL Analysis: Trump’s appointment of Sessions—an advocate of reducing both legal and illegal immigration—was consistent with Trump’s campaign promises on immigration. The Senate’s confirmation of Sessions could portend shifts in immigration policy and enforcement. BAL will continue to follow changes to immigration law and policy in the new administration and will provide clients with updates should significant changes be made.