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The U.S. State Department has rescinded its November 2020 guidance for the prioritization of consular services during the pandemic.
Key Points:
Additional Information: Since November 2020, posts that processed both immigrant and nonimmigrant visas were prioritizing immigrant visa applications. Embassies and consulates around the world can now prioritize visa applications at their discretion dependent on local conditions and restrictions.
BAL Analysis: Embassies and consulates continue to operate at a reduced capacity around the world. Continued visa processing delays are to be expected. BAL will continue to monitor visa processing prioritization updates and will provide more information as it becomes available. Employers and employees should continue to consult their BAL professional before planning international travel.
U.S. Citizenship and Immigration Services (USCIS) announced today that it conducted a third H-1B lottery for the fiscal year 2022 cap.
Background: USCIS conducted its initial selection in March after receiving more than 308,000 H-1B registrations. The agency conducted a second lottery in July. USCIS said today that it recently determined that it needed to select additional registrations in order to reach the fiscal year FY 2022 H-1B numerical allocations, including the advanced degree exemption.
BAL Analysis: BAL will review client accounts for additional registration selections and will reach out regarding the filing of new H-1B petitions.
This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.
Copyright © 2021 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 (USCIS) announced today that in December it will follow the State Department’s Dates for Filing chart, as published in the December Visa Bulletin, to determine whether employment-based applicants are eligible to file for adjustment of status.
The Visa Bulletin, which was published earlier this week, showed forward movement in China EB-2 and India EB-2. All other priority-date cutoffs remained the same.
Dates for Filing for Employment-Based Preference Cases:
Additional Information: Family-based applicants may use the applicable Dates for Filing chart for December, except for F2A category applicants, who may use Final Action Dates.
Copyright © 2021 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.
Priority-date cutoffs will advance modestly or remain the same in key employment-based categories next month, according to the State Department’s December Visa Bulletin.
Final Action Dates: Key Movements
EB-1
EB-2
EB-3
Final Action Dates for Employment-Based Preference Cases:
Dates for Filing: Key Movements
Additional Information: U.S. Citizenship and Immigration Services will announce soon via a web posting whether it will use the Final Action Dates or Dates for Filing chart in December. BAL will update clients as information becomes available.
U.S. Citizenship and Immigration Services (USCIS) has updated its Policy Manual after it entered into a legal settlement this week in Shergill, et al v. Mayorkas. The settlement makes significant changes to the work authorization process for the spouses of high-skilled workers in the U.S.
Under the settlement and the subsequent USCIS guidance, E and L spouses will not have to apply for an Employment Authorization Document (EAD) to work in the U.S. In addition, E, L, H-4 spouses will be provided automatic 180-day EAD extensions if they meet certain conditions.
BAL Analysis: E spouses were not specifically addressed in the settlement agreement, so the addition of E categories in the USCIS guidance is a significant development. BAL will continue to monitor developments related to the settlement, including DHS’ work to update the Form I-94 so that it can be used for verification of employment eligibility in the Form I-9 process. BAL will provide additional information as it becomes available.
The U.S. Embassy in Moscow has provided additional guidance for immigrant visa applicants following the U.S.’s addition of Russians to the Homeless Nationalities list.
Additional Information: Consular services in Russia have been strictly limited since May after the U.S. said it would curtail services following Russia’s move to bar U.S. Mission Russia from employing non-Russian nationals. The U.S. government designated Russian nationals as “homeless nationals” in October.
BAL Analysis: Immigrant visa services in Russia remain available only in very limited, emergency situations. Russian nationals applying for U.S. visas should follow the embassy’s guidance; immigrant visa applicants in Russia should plan on booking their appointments at the U.S. Embassy in Warsaw. Nonimmigrant (temporary) visa services remain unavailable in Russia except for diplomatic or official travel. BAL will continue to monitor the situation and will provide updates on significant developments.
U.S. Citizenship and Immigration Services (USCIS) has entered into a legal settlement that makes significant, beneficial changes to work authorization rules for the spouses of high-skilled workers in the United States.
The case in question is Shergill, et al v. Mayorkas. Under the terms of the settlement:
Background: H-4 and L-2 spouses have been disproportionately affected by USCIS delays in processing EAD applications, and many have been forced to stop working while waiting for their renewal card. These changes will provide much-needed relief to these individuals and their families, and will take some pressure off other USCIS work streams. BAL raised this issue in its comment in May in response to a USCIS Request for Public Input on improving access to immigration services and benefits.
BAL Analysis: USCIS will issue formal policy guidance to implement these changes, including Form I-9 guidance regarding acceptable documents. BAL will continue to follow developments related to this case and will provide additional information as it becomes available.
The U.S. State Department said this week that visa applicants can request reconsideration if their cases were rejected solely because of their presence in a country that was previously covered by a COVID-19 entry ban.
BAL Analysis: Visa applicants whose cases were rejected solely because they were subject to a “physical presence” ban should contact BAL if they would like to request reconsideration.
The new COVID-19 entry rules apply only to nonimmigrant air travel to the U.S. and do not affect visa issuance. This means the State Department can issue visas regardless of an applicant’s vaccination status or their eligibility for an exception, but subsequent travel to the U.S. will be governed by the new entry protocols. Employers and employees should continue to consult their BAL professional before planning any international travel.
The Centers for Disease Control and Prevention (CDC) has added Covaxin to the list of vaccines that the U.S. will accept under air and land entry policies that took effect today, Nov. 8.
The CDC added Covaxin after the World Health Organization (WHO) listed it for emergency use last week. The CDC had previously said that for purposes of entering the country, the U.S. would accept COVID-19 vaccines that are listed for emergency use by the WHO or approved or authorized by the U.S. Food and Drug Administration (FDA).
The U.S. is now requiring most nonimmigrant foreign nationals to provide proof that they are fully vaccinated against COVID-19 and proof of a negative COVID-19 test taken within three days before boarding a flight for the U.S.
A few key reminders:
BAL Analysis: Covaxin was developed and is widely used in India; its addition to the CDC’s list of accepted vaccines could make it easier for many travelers from India to meet the vaccination requirement for entering the U.S.
While the new entry rules ease procedures for many vaccinated travelers, the COVID-19 pandemic will continue to present travel challenges. The State Department has stressed, for example, that the rescission of the “physical presence” bans “does not necessarily mean that your local U.S. embassy or consulate is able to immediately schedule all affected applicants for visa interviews.” Applicants are advised to check their local embassy or consulate’s website for information on available services and instructions on applying for nonimmigrant visas.
Employers and employees should continue to consult their BAL professional before planning international travel.
The Labor Department has posted updated processing times for permanent labor certification (PERM) applications and prevailing wage determination (PWD) requests.
PERM Processing: As of Oct. 31, the department was adjudicating applications filed in June and earlier, conducting audit reviews on applications filed in January and earlier, and reviewing appeals for reconsideration filed in June and earlier.
Average PERM processing times:
PWD Processing: As of Oct. 31, the National Prevailing Wage Center was processing PWD requests filed in February and earlier for H-1B and PERM cases, according to the Labor Department. Redeterminations were being considered on appeals filed October and earlier for H-1B and September and earlier for PERM cases. Center director reviews were being conducted for PERM cases filed in September and earlier.
Average times for issuance of PWDs:
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 starting to see PWDs for requests filed in February and earlier for H-1B and PERM cases.