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Priority-date cutoffs will advance modestly or remain the same in key employment-based categories next month, according to the Final Action Dates published in State Department’s August Visa Bulletin.
Final Action Dates: Key Movements
EB-1
EB-2
EB-3
Final Action Dates for Employment-Based Preference Cases:
Additional Information: U.S. Citizenship and Immigration Services (USCIS) confirmed it would use the Final Action Dates chart to determine employment-based filing eligibility in August. The Dates for Filing chart will not apply.
This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.
Copyright © 2022 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 updated processing times for permanent labor certification (PERM) applications and prevailing wage determination (PWD) requests.
PERM Processing: As of June 30, the department was adjudicating applications filed in December and earlier, conducting audit reviews on applications filed in September and earlier, and reviewing appeals for reconsideration filed in February and earlier.
Average PERM processing times:
PWD Processing: As of June 30, the National Prevailing Wage Center was processing PWD requests filed in December and earlier for H-1B (OES and non-OES) and PERM (non-OES) cases and January and earlier for PERM (OES) cases, according to the Labor Department. Redeterminations were being considered on appeals filed April and earlier for H-1B cases and PERM cases. Center director reviews were being conducted for PERM cases filed in May and earlier.
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 December and earlier and is starting to see PWDs for requests filed in December and earlier for H-1B (OES and non-OES) and PERM (non-OES) cases and January and earlier for PERM (OES) cases.
The Department of Homeland Security (DHS) has submitted its final Deferred Action for Childhood Arrivals (DACA) regulation to the White House Office of Management and Budget (OMB).
The regulation is designed to “preserve and fortify” DACA. The text of the rule is not yet available, but OMB review is the final step in the rulemaking process before publication.
DACA Regulation Key Points:
Litigation Update: DACA has been the subject of extensive litigation even as it is broadly popular and enjoys strong support from the business community.
With dozens of DACA beneficiaries in attendance, a three-judge panel with the Fifth Circuit Court of Appeals heard arguments Wednesday in the U.S. Justice Department’s appeal of a July district court ruling that DHS did not follow proper procedures when establishing DACA in 2012. The questioning Wednesday focused largely on the Justice Department’s argument that Texas and other states lacked standing to challenge DACA.
In a separate case, a group of plaintiffs whose first-time DACA applications were pending when the July ruling was issued have asked a federal court in New York for interim relief while the Fifth Circuit litigation plays out. A hearing in the New York case is scheduled for 2:30 p.m. ET tomorrow, Thursday, July 7.
The DHS regulation was crafted in part to protect the program from legal challenges, though additional litigation is likely after the regulation is published.
BAL Analysis: The Biden administration aims to publish the final regulation to “preserve and fortify” DACA in August. For now, DHS is adjudicating only renewal applications and advance parole requests for existing DACA recipients. BAL continues to monitor developments related to DACA and will provide updates as information becomes available. For more information, please visit BAL’s DACA Resource Center here.
Copyright © 2022 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.
Processing backlogs have generated an “avalanche” of negative consequences for U.S. Citizenship and Immigration Services (USCIS) customers and stakeholders, according to the CIS Ombudsman’s recently released 2022 Annual Report to Congress.
The report attributes the backlogs to the “perfect storm” of decreased resources, increased filings and physical limitations imposed by the COVID-19 pandemic.
“USCIS has frequently had to confront the impacts of its backlogs, but neither the backlogs nor their impacts have been as severe as the ones the agency currently faces,” the Ombudsman said.
The report made specific recommendations on a number of fronts, including ways USCIS could:
Background: Each year, the Ombudsman’s office conducts a substantive analysis of problems encountered by individuals and employers when seeking immigration benefits and makes recommendations for improving USCIS processes. The office released this year’s report last week and will host a webinar to discuss it on July 19 at 1 p.m. ET. The office also made formal recommendations last month on how USCIS could address its funding challenges. Those recommendations can be found here.
BAL Analysis: The COVID-19 pandemic and related funding and staffing challenges have exacerbated USCIS processing delays, and agency officials have said reducing backlogs is a top priority. The agency has added additional staff, reallocated work among offices and tried to reduce requests for evidence, among other steps, to reduce backlogs. Additionally, a proposed rule that would increase USCIS filing fees is under White House review and is targeted to be published in September. BAL will continue to monitor delays at USCIS and will provide updates on important developments.
U.S. Citizenship and Immigration Services (USCIS) provided guidance this week to employment-based Adjustment of Status (AOS) applicants regarding the submission of Form I-693, Report of Medical Examination and Vaccination Record.
Key Points:
Additional Information: More information about Form I-693 is available here. A FAQ page on employment-based Adjustment of Status is available here.
BAL Analysis: While USCIS recommends that those who are filing for adjustment of status include a valid Form I-693, officials do not recommend that those with pending applications submit the form before hearing from the agency. BAL will continue following USCIS’ guidance and will provide updates on important changes.
U.S. Citizenship and Immigration Services (USCIS) is holding a webinar Thursday on the “Uniting for Ukraine” program.
Additional Information: President Joe Biden announced the creation of “Uniting for Ukraine” on April 21, framing it as a key part of the U.S.’s efforts to welcome up to 100,000 individuals fleeing the Russian invasion of Ukraine. In order to participate in “Uniting for Ukraine,” Ukrainians must have a supporter in the U.S. who provides them with financial support during their time in the country, among other requirements. U.S.-based supporters must file Form I-134 with USCIS on behalf of a Ukrainian beneficiary. The government will vet applicants to ensure they can meet their financial obligations. More information is available here.
A proposed rule to increase U.S. Citizenship and Immigration Services (USCIS) fees has been sent to the White House Office of Management and Budget (OMB).
Additional Information: In 2020, DHS published a regulation to increase filing fees, but a court blocked the fees from taking effect. The proposal under OMB review would rescind and replace the 2020 rule. USCIS funding challenges and related staffing issues have contributed to delays across visa categories, and USCIS officials have said they are prioritizing backlog reduction.
Ed Gonzalez, President Joe Biden’s nominee to be director of U.S. Immigration and Customs Enforcement (ICE), has removed himself from consideration for the post.
Additional Information: ICE is the U.S. government’s primary immigration enforcement agency. It has not had a Senate-confirmed director since the Obama administration. The agency is currently led by acting Director Tae D. Johnson, who previously served as ICE’s deputy director. BAL will monitor White House communications for an announcement of a new nominee and will provide information as it becomes available.
A State Department policy that allows some U.S. citizens to return to the U.S. on an expired U.S. passport is set to end June 30.
Background: The expired passport policy was adopted in May 2021. The State Department subsequently extended the policy until June 30.
BAL Analysis: The policy allowing some U.S. citizens to return the U.S. on an expired U.S. passport is set to expire June 30. Passport application processing times remain delayed, though they have improved some in recent months. Individuals in need of a renewed U.S. passport should apply for one as early as possible. Employers and employees should continue to consult their BAL professional before planning any international travel.
The Office of the Citizenship and Immigration Services Ombudsman (CIS Ombudsman) provided formal recommendations last week on how U.S. Citizenship and Immigration Services (USCIS) should address its chronic underfunding.
USCIS is almost exclusively funded by service fees, a model that leaves the agency “consistently under-resourced.” according to the Ombudsman. The funding problems make it “nearly impossible (for USCIS) to meet obligations and (inhibits) its ability to quickly address new and emerging circumstances”, the Ombudsman said. The Ombudsman said USCIS should seek legislative or regulatory actions to:
Background: USCIS has long faced funding challenges that have been exacerbated during the COVID-19 pandemic. The problem has exacerbated processing delays across many visa categories. A federal appropriations bill in March provided $275 million in funding for USCIS to address processing backlogs and delays. The Department of Homeland Security (DHS) is also working to publish a proposed rule to “establish new USCIS fees to recover USCIS operating costs.” While USCIS is not likely to adopt all of the Ombudsman’s recommendations, it is required to respond to the recommendations within three months. BAL will continue following USCIS’ efforts to address its funding and processing challenges and will provide updates as information becomes available.