Department of State November 2020 Visa Bulletin Summary

The Department of State has released the November 2020 Visa Bulletin. D&S provides a Monthly Summary of the employment-based priority dates. USCIS has advised that, in November 2020, 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.

With respect to Application Filing Dates, all categories (with the exception of the “Other Workers” category) will remain unchanged from October. As for Final Action Dates, all countries of chargeability, except India and China, will remain current. EB-1 China and EB-1 India will advance six months to December 1, 2018. With the exception of India and China, all other EB-2 countries of chargeability will remain current. EB-2 China will advance almost two months to April 22, 2016 and EB-2 India will advance just under a month to September 22, 2009. All EB-3 categories except India and China will remain current. EB-3 China will advance three months to October 1, 2017, and EB-3 India will advance one and a half months to March 1, 2010. 

The EB-5 Regional Center program has been extended by legislation until December 11, 2020.  As such, final action dates for both the EB-5 Regional and Non-Regional Center programs for all countries of chargeability except for China and Vietnam will remain current. EB-5 China will remain unchanged at August 15, 2015, and EB-5 Vietnam will advance two weeks to August 15, 2017.


Analysis of New DHS and DOL H-1B and PERM Regulations

WHAT’S HAPPENING

On October 6th, 2020, The Department of Homeland Security (DHS) and Department of Labor (DOL) announced that they will publish new regulations that would significantly impact the rules governing the H-1B visa, as well as wage requirements in connection with the H-1B, H-1B1 and E-3 visas and the PERM labor certification process.

Both rules are expected to be published as Interim Final Rules (IFRs) in the Federal Register on Thursday, October 8th. The DHS Rule will take effect 60 days after publication and while stakeholders can comment on the rule during this 60 day period, comments will not be considered before the rule takes effect. The DOL Rule will take effect immediately upon publication and will not have a delayed effective date, though DOL will accept public comments for 30 days. Both rules are likely to be challenged in court, meaning that injunctions could halt their implementation, at least temporarily, pending litigation.

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DHS & DOL Announce New Regulations Significantly Impacting H-1B and PERM Filings

WHAT’S HAPPENING

The Department of Homeland Security (DHS) and Department of Labor (DOL) are in the process of introducing new regulations that would significantly impact the rules governing the H-1B visa as well as wages used in connection with the PERM labor certification process.

Both rules are expected to be published as Interim Final Rules (IFRs) in the Federal Register on Thursday, October 8th. Because they are being published as IFRs the agencies are able to forgo the normal notice and comment period. The DHS Rule will take effect 60 days after publication. The DOL Rule will take effect immediately upon publication and will not have a delayed effective date.

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Federal Court Blocks Implementation of Executive Order Banning Entry of Certain H, L, and J Visa Holders

On Thursday, October 1, 2020, a Federal Court Judge from the Northern District of California issued a preliminary injunction blocking any further enforcement of the President’s June 22nd Executive Order preventing certain nonimmigrants in H, L, and J status from entering the U.S. until December 30, 2020. The injunction stems from a pending lawsuit filed against the Administration challenging the legality of the travel ban.

It is possible, if not likely, that the Administration will appeal the injunction as such, it remains unclear how long the suspension of the rule will last.

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

Several Recent Legislative and Judicial Developments That Have Resulted in Temporary USCIS Filing Fee Uncertainty

On August 3, 2020 the Department of Homeland Security (DHS) proposed a new regulation which would change USCIS filing fees and also require USCIS to roll out new versions of several immigration forms in conjunction with the fee changes. The regulation was set to take effect on Friday, October 2, 2020. However, just days prior, on September 29th, 2020, a Federal District Court Judge in California presiding over litigation relating to the new fee rule, blocked the regulation from taking effect via a preliminary injunction. USCIS has yet to release any clarifying guidance as to how applicants and petitions should proceed in light of the injunction and whether filings that utilize the old forms and prior fees will be accepted or rejected if filed after today.

In addition, on September 30th, 2020, Congress passed and the President signed into law a continuing resolution bill titled “Emergency Stopgap USCIS Stabilization Act” to keep the government funded until December 11, 2020. This legislation includes important changes to the USCIS Premium Processing Program by increasing the cost of premium processing service and expanding it to additional immigration benefits

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Department of State October 2020 Visa Bulletin Summary

The Department of State has released the October 2020 Visa Bulletin. D&S provides a Monthly Summary of the employment-based priority dates. As of today, September 24, 2020, USCIS has not yet advised whether, in October 2020, it will once again accept adjustment of status applications for employment-based petitions based on the bulletin’s Final Action Dates, as it has in recent months.

With respect to Employment Based (EB) Final Action Dates, all EB-1 countries of chargeability, except India and China, will remain current. EB-1 China and EB-1 India will advance three months to June 1, 2018. With the exception of India and China, all other EB-2 countries of chargeability remain current. EB-2 China will advance one and a half months to March 1, 2016 and EB-2 India will advance just under two months to September 1, 2009, respectively. All EB-3 categories except India and China will become current. EB-3 China will advance four and a half months to July 1, 2017, and EB-3 India will advance three and a half months to January 15, 2010.

As the EB-5 Regional Center program is set to sunset on September 30, 2020, the category will be unavailable in October pending reauthorization of the program by Congress. Should the program be reauthorized for FY2021, final action dates would immediately become current for October for all countries of chargeability except for China, which would be subject to an August 15, 2015 final action date and Vietnam which would be subject to an August 1, 2017 final action date. Final action dates for the EB-5 Non-Regional Center program, which will not be affected, remain current for all countries of chargeability except China and Vietnam, which will remain unchanged at August 15, 2015 and August 1, 2017 respectively.

With regards to Employment Based Application Filing Dates, all EB-1 countries of chargeability, except India and China, will remain current. EB-1 China and EB-1 India will advance by over two years to September 1, 2020. With the exception of India and China, all other EB-2 countries of chargeability remain current. EB-2 China will advance two months to October 1, 2016, and EB-2 India will advance almost two years to May 15, 2011. All EB-3 categories except India and China will become current. EB-3 China will advance thirteen months to June 1, 2018, and EB-3 India will advance just under five years to January 1, 2015. EB-5 dates will remain unchanged from the September 2020 visa bulletin.

As part of the October visa bulletin, the Department of State includes projections for final action date movement through the month of January. We include these projections below, noting that the actual determination of final action dates is subject to change based on applicant demand.

EB-1:

  • Worldwide: expected to remain current

  • China: rapid forward movement projected

  • India: rapid forward movement projected

EB-2

  • Worldwide: expected to remain current

  • China: rapid forward movement projected

  • India: rapid forward movement projected

EB-3:

  • Worldwide: expected to remain current

  • China: rapid forward movement projected

  • India: rapid forward movement projected

  • Philippines: likely to remain at the Worldwide date (current)

EB-5:

  • Worldwide: expected to remain current

  • China: no forward movement projected

  • Vietnam: limited forward movement projected


Department of State September 2020 Visa Bulletin Summary

The Department of State has released the September 2020 Visa Bulletin. D&S provides a Monthly Summary of the employment-based priority dates. USCIS has advised that, in September 2020, it will once again accept adjustment of status applications for employment-based petitions based on the bulletin’s Final Action Dates, as it did in August.

With respect to Employment Based (EB) Final Action Dates, all EB-1 countries of chargeability, except India and China, will remain current. EB-1 China and EB-1 India will advance three weeks to March 1, 2018. With the exception of India and China, all other EB-2 countries of chargeability remain current. EB-2 China and EB-2 India will remain unchanged at January 15, 2016 and July 8, 2009, respectively. All EB-3 categories except India and China will remain unchanged at April 1, 2019, and EB-3 China and EB-3 India will remain unchanged at February 15, 2017 and October 1, 2009, respectively. All EB-5 countries of chargeability except China and Vietnam will remain current. EB-5 China will advance one week to August 15, 2015, while EB-5 Vietnam will advance by just over one week to August 1, 2017.

All Employment Based Application Filing Dates remain unchanged from the August 2020 visa bulletin.


Overview of Exemption and Exceptions to Trump Administration's Travel Bans

In the Spring and Summer of 2020, President Trump issued a series Executive Proclamations restricting the entry of certain individuals to the United States. This first set of proclamations, issued between February and March of 2020 banned the entry of anyone who had been in a country with a high rate of COVID-19 cases within the 14 days preceding their entry to the U.S. These countries include, China, Iran, the Schengen Region of Europe, The United Kingdom, The Republic of Ireland, and Brazil. These Proclamations are generally referred to as the “Public Health Travel Ban”.

Further, on April 22, 2020, President Trump issued a Proclamation preventing certain immigrant visa applicants from obtaining immigrant visas to enter the United States and which called for the review of nonimmigrant programs with a view toward enacting additional restrictions. Subsequently, on June 22, 2020, the President expanded the scope of this Proclamation to certain nonimmigrant visa categories, effectively banning the entry of individuals on H-1B, H-2B, J-1, and L-1 visas, as well as their dependent family members, from entering the U.S. until December 31, 2020. The purported premise for these travel bans was to protect the U.S. labor market during a period of severe economic contraction following the COVID-19 outbreak. The travel ban is generally referred to as the “Labor Market Travel Ban.”

The text of both travel bans listed numerous individuals who were exempted from the temporary travel restrictions, as outlined below:

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President Trump Issues Executive Order Regarding Federal Contractor Hiring Practices

Today President Trump issued an Executive Order (EO) titled “Executive Order on Aligning Federal Contracting and Hiring Practices With the Interests of American Workers”, which directs all federal agencies within the next 120 days to review their hiring practices in order to determine whether H-1B workers provided services through a contract or subcontract and assess whether there was a negative impact on the U.S. labor market as a result.

More specifically, the EO directs federal agencies to determine:

  1. Whether any of the workers performing services under a contract with a contractor or subcontractor were H-1B workers,

  2. To outline the nature of the work performed, how it impacted U.S .workers, how it impacted national security,

  3. To assess whether any of the work previously performed in the U.S. has been outsourced to another country, and

  4. To review their policies in order to ensure they comply with laws governing positions where U.S. workers must be hired.

The order also gives the Department of Labor 45 days to ensure compliance with regulatory attestations it must make regarding the employment of H-1B workers (which require employer to attest that foreign workers will receive the same wages, working conditions, and benefits as similarly situated U.S. workers).

NY District Court Issues Nationwide Preliminary Injunction on Enforcement of Public Charge Rule During COVID-19 Outbreak

This week, the U.S. District Court for the Southern District of New York (SDNY) issued a preliminary injunction blocking the enforcement of the Trump Administration’s 2019 regulation titled “Inadmissibility on Public Charge Grounds”. The Public Charge Rule was initially introduced in August of 2019 and has been viewed by many as an extensive and overly burdensome “wealth test” that goes far beyond the existing requirement that green card applicants and those seeking admission to the U.S. from overseas demonstrate that they are not likely to become a public charge (e.g., rely on certain means-tested public benefits).

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USCIS Reports Significant EAD and Green Card Printing Delays & Permits Use of Approval Notices for I-9 Purposes in Certain Instances

In June the United States Citizenship and Immigration Service (USCIS) ended its contract with an external vendor responsible for printing Employment Authorization Documents (EADs) and Lawful Permanent Resident Cards (“Green Cards”) in an effort to hire federal employees to replace these outside contractors. However, given USCIS’s massive budget deficit, which may result in 70% of its workforce being furloughed if it does not receive a Congressional bailout, they are currently subject to a hiring freeze, which has significantly reduced it’s capacity to print these documents.

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Department of State August 2020 Visa Bulletin Summary

The Department of State has released the August 2020 Visa Bulletin. D&S provides a Monthly Summary of the employment-based priority dates. As of today, July 20, 2020, USCIS has not yet advised whether, in August 2020, it will once again accept adjustment of status applications for employment-based petitions based on the bulletin’s Final Action Dates, as it did in July.

With respect to Employment Based (EB) Final Action Dates, all EB-1 countries of chargeability, except India and China, will remain current. EB-1 China will advance just under six months to February 8, 2018 and EB-1 India will advance nine months, also to February 8, 2018. With the exception of India and China, all other EB-2 countries of chargeability remain current. EB-2 China will advance two months and one week to January 15, 2016, and EB-2 India will remain unchanged at July 8, 2009. All EB-3 categories except India and China will advance just under a year to April 1, 2019. EB-3 China will advance just under eight months to February 15, 2017, and EB-3 India will advance four months to October 1, 2009. All EB-5 countries of chargeability except China and Vietnam will remain current. EB-5 China will advance two weeks to August 8, 2015, while EB-5 Vietnam will advance over two months to July 22, 2017.

With respect to Employment Based Application Filing Dates, EB-1 Filing Dates for all countries of chargeability, except China and India, will remain current. EB-1 China and EB-1 India will advance eight months and eleven months respectively to July 1, 2018. Dates of filing for the EB-2 category will remain unchanged from July. With the exception of India and China, Application Filing Dates for all EB-3 countries of chargeability will advance one year to April 1, 2020. EB-3 China will advance two months to May 1, 2017 and EB-3 India will remain unchanged at February 1, 2010. Dates of filing for the EB-5 category will remain unchanged from July.


DOS Announces Exemption to Travel Ban for Certain European Students Studying in the U.S.

Several news outlets are reporting that the Department of State has sent a memo to lawmakers in Congress stating that students who are currently in Europe and have a valid F-1 visa stamp are exempt from the March 2020 Executive Proclamations temporarily suspending travel from the Schengen region of Europe, the U.K. and the Republic of Ireland. It appears that the exception does not apply to students in Brazil, Iran, and China, which are also subject to similar travel bans.

D&S is continuing to monitor the situation and will provide updates and additional guidance as it becomes available.

DOS Announces Exceptions to Presidential Proclamations Suspending the Entry of Certain Immigrants and Nonimmigrants

Today the Department of State (DOS) announced an exception to the Presidential Proclamations suspending entry of Immigrants and Nonimmigrants to the U.S. where the President deemed their entry a risk to the U.S. labor market during the economic recovery following the COVID-19 pandemic. In addition to the exceptions listed in the text of the Proclamations, the DOS outlined three (3) additional limited exceptions provided to:

  1. Applicants who are subject to aging out of their current immigrant visa classification for the expiration of the relevant Proclamations or within two (2) weeks thereafter;

  2. Certain H and J visa applicants who are traveling to work in support of critical U.S. foreign policy objectives (such as COVID-19 response) and/or traveling at the request of the U.S. government;

  3. Spouses and children of certain visa class holders, such as H, J, and L visa holders who are already exempted from or not subject to the nonimmigrant ban because, for example, the principal applicant is already in the United States.

The announcement further clarifies that Diversity Visa applicants who were not issues an immigrant visa as of April 23, 2020 remain subject to the proclamation. Finally, the announcement confirms that no valid visas will be revoked as a result of the proclamation.

Immigration Impact of Executive Order on Hong Kong Normalization

President Trump has issued an Executive Order on Hong Kong Normalization, which has several immigration consequences for foreign nationals born in Hong Kong. The most significant impact is on green card wait times. Since the enactment of the United States-Hong Kong Policy Act of 1992, the United States government has treated Hong Kong as a separate country from China for immigration purposes. This was especially beneficial in the green card context since wait times for individuals born in mainland China to receive a green card can often be 4-10 years, if not longer. Because Hong Kong was not considered part of mainland China, it got to benefit from much shorter, if any, wait times applicable to individuals generally classified under “All Chargeability Areas Except Those Listed”.

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State Department Announces Phased Resumption of Routine Consular Visa Services

The U.S. Department of State (DOS) has updated its website to indicate that U.S. embassies and consulates will begin resuming routine consular services in a phased approach that will occur on a post-by-post basis. The update states that “As post-specific conditions improve, our missions will begin providing additional services, culminating eventually in a complete resumption of routine visa services.”

The DOS notes, however, that it is not able to provide specifics dates for when each consular post will resume specific visa services or when they will again be able to resume processing at full, pre-COVID levels, as these will largely be dictated by local conditions. All posts will continue to provide emergency and mission critical services consistent with what has been provided since the suspension of routine visa services in March 2020.

For further information on the specific services being offered by a consular post, individuals should check that post’s website. Finally, the announcement confirms that the resumption of routine visa services is still limited by the COVID-19 Proclamations, including those restricting travel from certain countries and those put in place under the guise of protecting the U.S. labor market.

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

ICE's Student Exchange Visitor Program Issues Broadcast Modifying Online Class Accommodations Made In Response to COVID-19 - Updated on 7/14/2020 to Confirm New Policy Has Been Rescinded

Today, Immigration and Customs Enforcement’s (ICE) Student Exchange Visitor Program (SEVP) sent out a Broadcast Message notifying all SEVIS users of modifications being made to the temporary procedural adaptations for online courses that were permitted during the height of the COVID-19 Pandemic. Specifically, for the spring and summer 2020 semesters SEVP had temporarily exempted F-1 and M-1 students from the normal online class requirements and were permitted to take more online courses than normally allowed for purposes of maintaining a full course of study.

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White House Issues Presidential Proclamation Expanding Immigration Restrictions to Certain Nonimmigrant Visa Categories

Today the Trump administration released an expansion of its April 22, 2020 Presidential Proclamation on Immigration which was previously focused only on temporarily suspending the entrance of individuals entering the U.S. on certain immigrant visas. The expanded proclamation extends the temporary suspension of that limited class of immigrant visa holders from the U.S. This extension takes effect immediately. In addition, the Proclamation expands the suspension to nonimmigrant visas including some of the most commonly used employment-based nonimmigrant visas such as the H-1B, L-1, and certain J-1 visas, as well as any dependent family members of these visa holders. The entry of individuals on H-2B visas for non-agricultural seasonal workers is also suspended.

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Department of State July 2020 Visa Bulletin Summary

The Department of State has released the July 2020 Visa Bulletin. D&S provides a Monthly Summary of the employment-based priority dates. USCIS has advised that, in July 2020, it will once again accept adjustment of status applications for employment-based petitions based on the bulletin’s Final Action Dates.

With respect to Employment Based (EB) Final Action Dates, all EB-1 countries of chargeability, except India and China, will remain current. EB-1 China will advance one week to August 22, 2017 and EB-1 India will advance eleven months to May 8, 2017. With the exception of India and China, all other EB-2 countries of chargeability remain current. EB-2 China will advance one week to November 8, 2015, and EB-2 India will advance just under a month to July 8, 2009. All EB-3 categories except India and China will advance five months and one week to April 15, 2018. EB-3 China will advance one week to June 22, 2016, and EB-3 India will advance two months to June 1, 2009. EB-5 India will become current, and all other EB-5 countries of chargeability, except China and Vietnam, will remain current. EB-5 China will advance one week to July 22, 2015, while EB-5 Vietnam will advance three weeks to May 15, 2017.

With respect to Employment Based Application Filing Dates, EB-3 and EB-5 categories remain unchanged from June. EB-1 Filing Dates for all countries of chargeability, except China and India, will remain current. EB-1 China will advance once month to November 1, 2017, and EB-1 India will advance four and a half months to August 1, 2017. With the exception of India and China, Application Filing Dates for all EB-2 countries of chargeability remain current. EB-2 China will remain unchanged at August 1, 2016, and EB-2 India will advance one and a half months to August 15, 2009.