USCIS Announces FY2021 Electronic Registration Selection is Complete

Today the United States Citizenship and Immigration Service (USCIS) announced that it has received a sufficient number of FY 2021 H-1B Cap registrations to meet the annual H-1B quota. As such, they have run the random selection process and will notify petitioners with selected registrations by March 31, 2020. By this date, petitioners and representatives will be able to log into their myUSCIS.gov accounts to see the status of the registrations they submitted. Cases that have been selected will have their status updated to “Selected” and cases that have not been selected will continue to show as “Submitted” as USCIS has indicated that it will keep all registrations available and open until the end of the fiscal year and, in the event that additional visa numbers become available (due to denials, withdrawals, failure to file after selection), USCIS may go back in and randomly select additional cases for processing, though they have not provided additional details about that process at this time.

Note that USCIS will only indicate that a registration has been “denied” in the event that it has discovered a duplicate registration was submitted by the same registrant for the same beneficiary, or a payment method was declined and not reconciled.

USCIS Announces Flexibility in RFE and NOID Deadlines Due to COVID-19 Pandemic

Today, the United States Citizenship and Immigration Service (USCIS) announced that it would provide extra flexibility with respect to deadlines for submitting Requests for Evidence (RFEs) and Notices of Intent to Deny (NOIDs). More specifically, while Petitioners are typically given between 30 and 84 days to response to RFEs and NOIDs, USCIS has stated that for RFEs and NOIDs dated between March 1 and May 1, 2020, any responses submitted within 60 calendar days after the initial response deadline will be considered by USCIS before any action is taken. 

What this appears to mean is that so long as RFEs and NOIDs are filed within 60 days of the initial response deadline, USCIS will not consider the late filing, alone, as a basis for denying the petition for failure to timely respond to an RFE or NOID.

UPDATE: On March 30, 2020, USCIS announced that it would also extend the same deadline flexibility to Notices of Intent to Terminate (NOITs) regional investment centers and Notices of Intent to Revoke (NOIRs). In addition, Form I-290B motions and appeals received up to 60 calendar days from the date of the decision will be considered by USCIS before it takes any action. This will apply to relevant filings where the issuance date listed on the request, notice, or decision is between March 1, 2020 and May 1, 2020, inclusive. 

UPDATE: On May 1, 2020, USCIS extended the window in which cases would be considered for deadline flexibility to cases filed between March 1 and July 1, 2020, inclusive. 

UPDATE: On July 1, 2020, USCIS extended the window in which cases would be considered for deadline flexibility to cases filed between March 1 and September 11, 2020 inclusive. 

UPDATE: On September 11, 2020, USCIS extended the window in which cases would be considered for deadline flexibility to cases filed between March 1, 2020, and January 31, 2021 inclusive. 

UPDATE: On January 27, 2021, USCIS extended the window in which cases would be considered for deadline flexibility to cases filed between March 1, 2020 and March 31, 2021 inclusive. 

UPDATE: On March 24, 2021, USCIS extended the window in which cases would be considered for deadline flexibility to cases filed between March 1, 2020 and June 30, 2021 inclusive.

UPDATE: On June 24, 2021, USCIS extended the window in which cases would be considered for deadline flexibility to cases filed between March 1, 2020 and September 30, 2021 inclusive.

USCIS Announces Temporary Suspension of Premium Processing for FY2021 H-1B Cap Petitions

Today the United States Citizenship and Immigration Service (USCIS) announced that premium processing service for Fiscal Year (FY) 2021 H-1B cap petitions would be temporarily suspended. As with past years, USCIS will resume premium processing in two phases. USCIS will initially resume premium processing for FY2021 cap-subject H-1B petitions requesting a change of status from F-1 nonimmigrant status no later than May 27, 2020, and will notify the public before premium processing resumes for these petitions. The earliest date that USCIS will resume premium processing for all other FY2021 cap-subject H-1B petitions is June 29, 2020. At this time, USCIS has confirmed that premium processing remains available for all other cap-exempt H-1B petitions, such as extension of stay requests.

D&S will continue to monitor the situation and provide updates as they become available.

Department of State April 2020 Visa Bulletin Summary

The Department of State has released the April 2020 Visa Bulletin. D&S provides a Monthly Summary of the employment-based priority dates. As of today, USCIS has not yet advised whether, in April 2020, it will once again accept adjustment of status applications for both employment-based and family-based petitions based on the April Bulletin’s application filing dates, as it has for most categories for the past several months. The April Bulletin’s application filing dates for all categories will remain unchanged from the March Bulletin.

With respect to Employment Based (EB) Final Action Dates, all EB-1 countries of chargeability, except India and China, will advance three months to June 1, 2019. EB-1 China will advance one week to June 8, 2017 and EB-1 India will advance two months to May 1, 2015. With the exception of India and China, all other EB-2 countries of chargeability remain current. EB-2 China will advance two weeks to September 1, 2015, and EB-2 India will advance by just three days to May 25, 2009. All EB-3 categories except India and China will remain unchanged at January 1, 2017. EB-3 China will advance three weeks to April 15, 2016, and EB-3 India will advance one week to January 22, 2009.

EB-5 Non-Regional Center and EB-5 Regional Center Final Action Dates remain current with the exception of China, India and Vietnam. EB-5 China will remain unchanged at May 15, 2015, while EB-5 India will advance over two months to January 1, 2019, and EB-5 Vietnam will advance over three weeks to February 8, 2017.

Trump Administration Expands Travel Suspension to UK and Ireland

President Trump has announced an expanded ban on travel to the U.S. for foreign nationals who, within a 14-day period preceding their entry to the U.S., were physically present in the U.K. or Ireland. The suspension will become effective as of 11:59 pm (ET) on Monday, March 16, 2020 and is an expansion of the ban on travel for foreign nationals present in any of the 26 countries in Europe which comprise the Schengen Area. Like the prior ban, the measure, which is in response to the COVID-19 pandemic, does not apply to United States Citizens (USCs), Lawful Permanent Residents (LPRs), and certain family members of USCs and LPRs.

D&S is closely monitoring this and will provide additional updates as new information becomes available.

U.S. Suspends Travel From Europe

President Trump has announced a ban on travel to the U.S. for foreign nationals who, within a 14-day period preceding their entry to the U.S., were physically present in any of the 26 countries in Europe which comprise the Schengen Area. The suspension will become effective as of 11:59 pm (ET) on Friday March 13, 2020 and is expected to remain in effect for at least 30 days and until terminated by the President. The measure, which is in response to the COVID-19 pandemic, contains exceptions, and does not apply to United States Citizens (USCs), Lawful Permanent Residents (LPRs), and certain family members of USCs and LPRs. The ban also exempts persons on board a flight to the U.S. that departed prior to suspension becoming effective.

D&S is closely monitoring this and will provide additional updates as new information becomes available.

Department of State March 2020 Visa Bulletin Summary

The Department of State has released the March 2020 Visa Bulletin. D&S provides a Monthly Summary of the employment-based priority dates. Today, February 19, 2020, USCIS advised that in March 2020, it will once again accept adjustment of status applications for both employment-based and family-based petitions based on the March Bulletin’s application filing dates, with the exception of F2A, which can rely on Final Actions dates to determine filing eligibility. In addition, USCIS has instructed that because Vietnam is not listed on the Dates for Filing chart, adjustment applicants from Vietnam should use the worldwide dates for determining filing eligibility.

With respect to Employment Based (EB) Final Action Dates, all EB-1 countries of chargeability, except India and China, will advance three months to March 1, 2019. EB-1 China will advance one week to June 1, 2017 and EB-1 India will advance 2 months to March 1, 2015. With the exception of India and China, all other EB-2 countries of chargeability remain current. EB-2 China will advance one month to August 15, 2015, and EB-2 India will advance by just three days to May 22, 2009. All EB-3 categories except India and China will have a priority date of January 1, 2017 imposed starting in March (all, with the exception of the Philippines, had been current prior to this). EB-3 China will advance 15 weeks to March 22, 2016, EB-3 India will advance one week to January 5, 2009.

EB-5 Non-Regional Center and EB-5 Regional Center Final Action Dates remain current with the exception of China, India and Vietnam. EB-5 China advanced 5.5 months to May 15, 2015, EB-5 India advanced just under two months to October 22, 2018, and EB-5 Vietnam advanced one month to January 15, 2017.

With respect to Application Filing Dates most categories remain unchanged with the exception of EB-5 China with progressed seven months to December 15, 2015.

USCIS Announces Processing Change to I-526 Petitions

Today, the United States Citizenship and Immigration Service (“USCIS”) announced that it will be changing the way in which it adjudicates I-526 Immigrant Petitions for Alien Entrepreneurs (i.e., immigrant visa petitions based on an investment under the EB-5 program). While historically, the service has used a first-in, first-out basis for these petitions, as of March 31, 2020, it will switch to a "visa availability" approach.

This change will apply to all cases pending as of March 31, 2020, and will result in USCIS prioritizing adjudication of petitions connected to individuals from countries where visas are currently available or will soon be available. USCIS currently employs this approach in other contexts, including the adjudication of certain I-130 Immigrant Petitions for Alien Relative. The stated reasons for the change were both ones of fairness and of better enabling applicants from countries where visas are immediately available to use their annual per-country allocation of EB-5 visas. The announcement made clear that this was a change in adjudication procedures only and did not create legally binding rights or change substantive requirements.

D&S will continue to monitor this developing situation and provide updates as they become available.

Department of State February 2020 Visa Bulletin Summary

The Department of State has released the February 2020 Visa Bulletin. D&S provides a Monthly Summary of the employment-based priority dates. As of today, January 22, 2020, USCIS has not yet advised whether, in February 2020, it will once again accept adjustment of status applications for both employment-based and family-based petitions based on the February Bulletin’s application filing dates, as it has for most categories for the past few months.

With respect to Final Action Dates, all EB-1 countries of chargeability, except India and China, will advance two months to December 1, 2018. EB-1 China and EB-1 India will remain unchanged at May 22, 2017 and January 1, 2015 respectively. With the exception of India and China, all other EB-2 countries of chargeability remain current. EB-2 China will advance two weeks to July 15, 2015, and EB-2 India will advance by just one day to May 19, 2009. EB-3 China will advance one month to January 1, 2016, EB-3 India will advance one week to January 8, 2009, and EB-3 Philippines will advance two and a half months to June 1, 2018. All other EB-3 countries of chargeability will remain current.

In December 2019, President Trump signed a law extending the EB-5 Regional Center Program through September 30, 2020. As such, EB-5 Non-Regional Center and EB-5 Regional Center final action dates are current with the exception of China, India and Vietnam. EB-5 China is backlogged at December 1, 2014, EB-5 India at September 1, 2018, and EB-5 Vietnam at December 15, 2016.

Application Filing Dates will remain unchanged from January 2020.

Department of State January 2020 Visa Bulletin Summary

The Department of State has released the January 2020 Visa Bulletin. D&S provides a Monthly Summary of the employment-based priority dates. As of today, December 19, 2019, USCIS has not yet advised whether, in January 2020, it will once again accept adjustment of status applications for both employment-based and family-based petitions based on the January Bulletin’s application filing dates, as it has for the past few months.

With respect to Final Action Dates, all EB-1 countries of chargeability, except India and China, will advance two and a half months to October 1, 2018. EB-1 China will progress just one week to May 22, 2017, and EB-1 India will remain unchanged at January 1, 2015. With the exception of India and China, all other EB-2 countries of chargeability remain current. EB-2 China will advance just over a week to July 1, 2015, and EB-2 India will advance by only 3 days to May 18, 2009. EB-3 China will advance one month to December 1, 2015, EB-3 India will remain unchanged at January 1, 2009, and EB-3 Philippines will progress two weeks to March 15, 2018. All other EB-3 countries of chargeability will remain current.

With respect to Application Filing Dates, all EB-1 and EB-2 countries of chargeability besides India and China will remain current. EB-1 China will advance one month to October 1, 2017, and EB-1 India will remain unchanged at March 15, 2017. EB-2 India and China will remain unchanged at July 1, 2009 and August 1, 2016 respectively. All EB-3 categories of chargeability besides India and China will retrogress to January 1, 2019, while EB-3 China and India will remain unchanged from December at March 1, 2017 and February 1, 2010 respectively.

The EB-5 Regional Center program was extended in November and is now set to expire on December 20, 2019. Final action dates for this category have been listed as “Unavailable” for January. The final action dates for the EB-5 Non-Regional Center program, which will not be affected, will remain current with the exception of China, India, and Vietnam. EB-5 China will advance one week to November 22, 2014, while EB-5 India will advance four months to May 1, 2018, and EB-5 Vietnam will advance one week to December 8, 2016. If there is legislative action extending the categories for FY2020, the final action dates for the EB-5 Regional Center program would immediately become “Current” for January for all countries, except China, India, and Vietnam, which would match the Non-Regional Center dates. The EB-5 filing dates for all countries remain current, with the exception of EB-5 China, which remains unchanged at May 15, 2015.

The January visa bulletin includes projections for visa availability in the coming months. Some of the most notable projected changes include rapid forward movement for all EB-1 countries of chargeability except India and China, with the potential to become current. EB-1 China should see up to three weeks of progression, while little to no forward movement is expected for EB-1 India. EB-2 China and India are expected to progress up to one month and one week respectively, while EB-2 worldwide is expected to retrogress in the second half of the fiscal year. All EB-3 countries of chargeability besides India, China, and the Philippines are projected to retrogress by March of 2020. EB-3 China is expected to progress up to six weeks, EB-3 India up to three weeks, and EB-3 Philippines up to one month. Finally, EB-5 is expected to remain current for most countries, with EB-5 China expected to progress at a slightly faster pace and EB-5 India likely to progress rapidly until there is an increase in demand. Only limited forward movement is projected for EB-5 Vietnam.

Update: on 12/20/2019 USCIS announced that the “Dates of Filing” Chart should be used for Employment-Based adjustment of status applications filed in January 2020. Subsequently, USCIS issued a clarification stating “If USCIS determines there are more immigrant visas available for a fiscal year than there are known applicants for such visas, we will state on this page that you may use the Dates for Filing chart. Otherwise, we will indicate on this page that you must use the Final Action Dates chart to determine when you may file your adjustment of status application. However, if a particular immigrant visa category is “current” on the Final Action Dates chart or the cutoff date on the Final Action Dates chart is later than the date on the Dates for Filing chart, applicants in that immigrant visa category may file using the Final Action Dates chart during that month.” As such, individuals who are current under the Final Action Dates chart but not under the Dates of Filing chart may still file adjustment of status if otherwise eligible in January 2019.

USCIS Announces Implementation of H-1B Electronic Registration Process for Fiscal Year 2021 Cap Season

U.S. Citizenship and Immigration Services (USCIS) announced today that it will be implementing the registration process in the next H-1B lottery. Employers seeking to file H-1B cap-subject petitions for the fiscal year (FY) 2021 cap, including those eligible for the advanced degree exemption, must first electronically register with USCIS. USCIS will open an initial registration period from March 1 through March 20, 2020.

Under this new process, employers or their authorized representatives will be required to complete a registration for each requested worker during the registration window, providing initial information about their company and each requested worker. Employers must also pay the associated $10 H-1B registration fee for each registration. The H-1B random selection process will then be run on those electronic registrations. Only those with selected registrations will be eligible to file H-1B cap-subject petitions.

USCIS indicates it will post step-by-step instructions on the registration process along with key dates and timelines as the initial registration period nears.

D&S will post additional guidance as it becomes available.

Department of State December 2019 Visa Bulletin Summary

The Department of State has released the December 2019 Visa Bulletin. D&S provides a Monthly Summary of the employment-based priority dates. As of today, November 20, 2019, USCIS has not yet advised whether, in December 2019, it will once again accept adjustment of status applications for both employment-based and family-based petitions based on the December Bulletin’s application filing dates, as it has for the past two months.

With respect to Final Action Dates, all EB-1 countries of chargeability, except India and China, will advance one and a half months to July 15, 2018. EB-1 China will progress three and a half months to May 15, 2017, and EB-1 India will remain unchanged at January 1, 2015. With the exception of India and China, all other EB-2 countries of chargeability remain current. EB-2 China will advance three months and a week to June 22, 2015, and EB-2 India will advance by only 2 days to May 15, 2009. All EB-3 countries of chargeability besides India, China, and the Philippines remain current. EB-3 China and India will remain unchanged at November 1, 2015 and January 1, 2009 respectively, while EB-3 Philippines will progress one month to March 1, 2018.

With respect to Application Filing Dates, all EB-1 countries of chargeability besides India and China will become current. EB-1 China and India will remain unchanged at September 1, 2017 and March 15, 2017 respectively. All EB-2 and EB-3 categories will remain unchanged from November.

The EB-5 Regional Center program is set to expire on November 21, 2019. Final action dates for this category have been listed as “Unavailable” for December. The final action dates for the EB-5 Non-Regional Center program, which will not be affected, will remain current with the exception of China, India, and Vietnam. EB-5 China will advance to November 15, 2014, while EB-5 India will advance to January 1, 2018, and EB-5 Vietnam will advance to December 1, 2016. If there is legislative action extending the categories for FY2020, the final action dates for the EB-5 Regional Center program would immediately become “Current” for December for all countries, except China, India, and Vietnam, which would match the Non-Regional Center dates. The EB-5 filing dates for all countries remain current, with the exception of EB-5 China, which will advance to May 15, 2015.

Department of State November 2019 Visa Bulletin Summary

The Department of State has released the November 2019 Visa Bulletin. D&S provides a Monthly Summary of the employment-based priority dates. As of today, October 18, 2019, USCIS has advised that, in November 2019, it will once again accept adjustment of status applications for both employment-based and family-based petitions based on the November Bulletin’s application filing dates for all categories except for the F2A family-based category, which may file based on final action dates. As Vietnam is not listed on the “Dates for Filing” chart, adjustment applicants from Vietnam should use the worldwide dates found in the “All Chargeability Areas Except Those Listed” column. All Application Filing Dates categories remain unchanged from October 2019.

As for Final Action Dates, all EB-1 categories, except India and China, will advance to June 1, 2018. EB-1 China will advance three months to February 1, 2017, and EB-1 India will remain unchanged at January 1, 2015. With the exception of India and China, all EB-2 countries of chargeability will remain current. EB-2 China will advance by two and a half months to March 15, 2015, and EB-2 India will advance by one day to May 13, 2009. All EB-3 countries of chargeability besides India, China, and the Philippines will remain current. EB-3 China and India will remain unchanged, while the Philippines will advance three and a half months to February 1, 2018. 

The EB-5 Regional Center program has been extended until November 21, 2019. Final action dates for this category will follow the EB-5 Non-Regional Center final action dates until November 22, 2019, when, if there is no legislative action extending the program for FY-2020, the EB-5 Regional Center final action dates would immediately become “Unavailable” for November for all countries. The final action dates for the EB-5 Non-Regional Center program, which will not be affected, will remain current with the exception of China, India, and Vietnam. EB-5 China will advance to November 1, 2014, while EB-5 India will advance to December 8, 2017, and EB-5 Vietnam will advance to November 15, 2016.