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The U.S. Justice Department has appealed a federal judge’s ruling that the Department of Homeland Security (DHS) did not follow proper procedures when it created the Deferred Action for Childhood Arrivals (DACA) program in 2012.
Key Points:
BAL Analysis: While the July ruling prevents DHS from approving any new first-time DACA grants, current DACA recipients remain able to file renewal requests and for employment authorization at this time. BAL continues to follow developments related to DACA, including in the courts and the regulatory process. For more information, please visit BAL’s DACA Resource Center here.
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.
The U.S. District Court for the District of Columbia has ordered the U.S. State Department to make good-faith efforts to process Diversity Visa (DV) applications by Sept. 30.
Background: On Sept. 9, the U.S. District Court ruled that the Department could not prohibit staff from processing, reviewing or adjudicating 2021 DV applications based on the Nov. 2020 prioritization guidance. However, the court clarified that the November 2020 prioritization guidance “does not prevent any embassy personnel, consular officer, or administrative processing center from prioritizing the processing, adjudication, or issuance of visas based on resource constraints, limitations due to the COVID-19 pandemic, or country conditions.” More information on how the Department generally prioritizes immigrant visa applications can be found here.
BAL Analysis: BAL will continue to monitor Diversity Visa updates and will provide important updates as information becomes available.
The U.S. State Department has asked the public for information on how it can reduce barriers to immigration benefits, specifically in relation to immigrant visas.
Additional Information: Written comments must be received on or before Oct. 18. Comments can be submitted online via www.regulations.gov or by email. More information is available here. BAL will continue following the administration’s implementation of the Feb. 2 executive order and will provide updates as information becomes available.
A federal judge on Wednesday set aside a regulation that would have replaced the current H-1B lottery with a system prioritizing individuals with the highest offered salaries.
Background: In December 2020, as part of this same lawsuit, Judge White set aside the Department of Labor’s prevailing wage regulation and the DHS “H-1B strengthening” rule. In April, the court allowed the plaintiffs to add a challenge to the H-1B lottery prioritization rule to the case. In June, the court vacated the updated version of the DOL wage rule and allowed the claims related to the lottery rule to continue. The U.S. Chamber of Commerce, National Association of Manufacturers, Presidents’ Alliance on Higher Education and Immigration and other plaintiffs filed a brief in August arguing that the rule was “unlawful three times over,” including because Acting Secretary Wolf was not lawfully appointed.
BAL Analysis: The H-1B lottery prioritization rule would have had a dramatic effect on the allocation of H-1B visas, and this ruling makes it unlikely that U.S. Citizenship and Immigration Services (USCIS) will be able to implement the new process for the FY23 H-1B cap season. At this time, current rules are expected to remain in place, under which USCIS will select registrations through a random lottery as it has in the past. The government has not yet indicated whether it will appeal the ruling. We cannot rule out that the Biden administration could pursue a new regulation to implement a wage-based H-1B allocation process, but this is unlikely to happen before the upcoming cap season.
The U.S. State Department recently expanded a policy that grants consular officers greater leeway to waive in-person interviews for F, M and academic J visa applicants.
Additional Information: Details regarding country eligibility through the VWP and further procedures can be found on country-specific embassy or consulate websites. Applicants from non-VWP countries whose previous visas were issued when they were under the age of 14 may be required to submit biometric fingerprints but may receive an interview waiver.
BAL Analysis: While the expansion of the interview waiver benefits some applicants, the impact may be limited both because consular officers retain discretion to require an interview and because of limited visa services due to the COVID-19 pandemic. BAL continues to monitor the administration’s response to the pandemic and will provide updates as information becomes available.
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.
The State Department released the October Visa Bulletin Monday, and U.S. Citizenship and Immigration Services (USCIS) announced it would use the Dates for Filing chart for most employment-based filings. The switch from Final Action Dates to Dates for Filing means that priority-date cutoffs will advance in key employment-based categories for filing in October.
Key movements in October:
EB-1
EB-2
EB-3
Dates for Filing for Employment-Based Preference Cases:
Additional Information: The Visa Bulletin stated that in the coming months all countries under EB-1 are expected to remain current. China EB-2 and India EB-2 could see movement of “up to several months,” while EB-2 worldwide is expected to remain current. The Visa Bulletin also said that China EB-3 and India EB-3 could see retrogression as soon as November and that final action dates could be imposed as soon as November for countries under EB-3 that are now current.
European countries are re-imposing travel restrictions on U.S. residents following the European Council’s decision to remove the U.S. from its “green list” at the end of August.
The countries that have implemented restrictions again include:
Additional Information: Recent changes in restrictions make travel from the U.S. to many European countries more difficult. Travelers are reminded that the U.S. continues to bar entry and re-entry to many foreign nationals who have been physically present in the Schengen Area, Ireland or the United Kingdom in the past 14 days. The bans will remain in place until they are lifted or modified by President Joe Biden. U.S. consulates continue to operate at reduced capacity, and applicants for visas and exemptions from the COVID-19 travel restrictions should expect delays. The U.S. government also requires proof of a negative COVID-19 test from all international air travelers, including U.S. citizens and lawful permanent residents. Foreign nationals should continue to consult their BAL professional before planning international travel.
This alert has been provided by the BAL Global practice. For additional information, please contact berryapplemanleiden@bal.com.
H-1B denial rates dropped dramatically in the first two quarters of the 2021 fiscal year, according to an analysis of U.S. Citizenship and Immigration Services (USCIS) data by the National Foundation for American Policy (NFAP).
For new employment H-1B petitions, the NFAP analysis shows a denial rate of 7.1% in the first two quarters of FY 2021 (October 2020 through March 2021), compared to a denial rate of 28.6% in the first two quarters of the previous fiscal year.
Overall, denial rates have dropped significantly since peaking under former President Donald Trump in FY 2018 and 2019, according to the NFAP.
The lower denial rate is at least in part due to legal challenges that forced USCIS to issue new guidance on the adjudication of H-1B visas in June 2020.
A federal court also set aside an “H-1B strengthening” rule before it took effect last year; the rule would have tightened the H-1B definitions of “specialty occupation” and “employer-employee relationship” and required more evidence for third-party placement of H-1B workers at client sites.
The NFAP said that while H-1B denial rates “appear to have returned to more traditional levels” the increase in the denial rate during the Trump administration “imposed significant costs on employers, visa holders and the economy, likely contributing to more work and talent moving to other countries.”
The full NFAP analysis is available here.
The Labor Department has posted updated processing times for permanent labor certification (PERM) applications and prevailing wage determination (PWD) requests.
PERM Processing: As of Aug. 31, the department was adjudicating applications filed in April and earlier, conducting audit reviews on applications filed in October and earlier, and reviewing appeals for reconsideration filed in April and earlier.
Average PERM processing times:
PWD Processing: As of Aug. 31, the National Prevailing Wage Center was processing PWD requests filed in March and earlier for H-1B cases and February and earlier for PERM cases, according to the Labor Department. Redeterminations were being considered on appeals filed August and earlier for H-1B cases and July and earlier for PERM cases. Center director reviews were being conducted for PERM cases filed in July and earlier.
Average times for issuance of PWDs:
BAL Analysis: BAL’s internal case tracking is mostly consistent with Labor Department’s published processing times. BAL is seeing approvals for PERM applications filed in April and earlier and is starting to see PWDs for requests filed in March and earlier for H-1B cases and February and earlier for PERM cases. Some PWD requests are taking notably longer than the Labor Department’s posted average times, however, particularly for non-OES requests.
U.S. Immigration and Customs Enforcement (ICE) announced today that it would extend Form I-9 flexible procedures for employers operating remotely due to COVID-19.
Background: ICE introduced the temporary measures in March 2020 and has extended them numerous times since then.
This alert has been provided by the BAL Global Practice group. For additional information, please contact berryapplemanleiden@bal.com.