USCIS Announces Implementation of H-1B Electronic Registration Process for Fiscal Year 2022 Cap Season

U.S. Citizenship and Immigration Services (USCIS) announced today that the initial registration period for the Fiscal Year (FY) 2022 H-1B cap will open at 12 (noon) Eastern on March 9, 2021 and run through 12 (noon) Eastern on March 25, 2021.

Under this registration 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 the agency intends to notify account holders of the results of the selection process by March 31, 2021.

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

Biden Administration Expands COVID-19 Related Travel Restrictions

This week, President Biden signed a proclamation continuing the suspension of entry of certain travelers from the Schengen Area, the United Kingdom, the Republic of Ireland, Brazil, China, and Iran, and expanding these restrictions to include travelers from South Africa.

As with the previous suspensions, U.S. citizens and lawful permanent residents are not subject to the proclamations and certain other exemptions and exceptions still apply.

The expanded rule will become effective at 12:01 a.m. eastern standard time on January 30, 2021.

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

State Department February 2021 Visa Bulletin Summary

The Department of State has released the February 2021 Visa Bulletin. D&S provides a Monthly Summary of the employment-based priority dates. USCIS has advised that, in February 2021, it will continue to accept adjustment of status applications for employment-based petitions based on the February Bulletin’s final action dates. 

With respect to Final Action Dates, all countries of chargeability, except India and China, will remain current. EB-1 China and EB-1 India will advance four months to January 1, 2020. With the exception of India and China, all other EB-2 countries of chargeability will remain current. EB-2 China will advance two weeks  to June 15, 2016 and EB-2 India will advance four days to October 12, 2009. All EB-3 categories except India and China will remain current. EB-3 China will advance two weeks to January 1, 2018, and EB-3 India will advance ten days to April 1, 2010. 

The EB-5 Regional Center program has been reauthorized by Congress until mid-2021.  As a result, final action dates  have become current for January for all countries of chargeability except for China, which is  subject to an August 15, 2015 final action date, and for Vietnam, which is subject to an October 1, 2017  final action date. Final action dates for the EB-5 Non-Regional Center program remain current for all countries of chargeability except China, which will remain unchanged at August 15, 2015, and Vietnam, which will advance two weeks to October 1 , 2017. 

With respect to Application Filing Dates, all categories (with the exception of the “Other Workers”, EB-4 special immigrants, and “Certain Religious Workers” categories) will remain unchanged from January.


DOL Publishes Final Version of H-1B Wage Rule with Modifications from Initial IFR

The Department of Labor (DOL) has published its Final Rule increasing H-1B and PERM wage minimums, which it previously published as an Interim Final Rule (IFR) on October 8, 2020, and which was subsequently vacated by a U.S. District Court on December 1, 2020. The Final Rule revises numerous aspects of the initial IRF, including adjusting the new wage minimums to levels slightly lower than the initial IFR. In addition, the Final Rule has a transition period for when the new wage requirements will be phased on as well as include special adjustments for certain H-1B workers who are the beneficiaries of approved I-140 petitions.

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USCIS Advises of Extensive Receipting Delays at Certain Lockbox Facilities

The United States Citizenship and Immigration Service (USCIS) has advised stakeholders that due to numerous factors including COVID-19, staffing shortages, and an increase in the volume of filings, it is experiencing significant delays in intake of cases and issuance of receipt notices for filings made with USCIS lockbox facilities. In most cases these delays are expected to be between 4-6 weeks but but can vary across lockboxes and case types. The agency has further advised that certain cases, including employment-based adjustment of status applications and certain student work permits (EADs), may experience even more significant receipting delays.

USCIS further clarified that these receipting delays will not impact the receipt date of the case, which will in all instances be the date on which a correct and complete submission is actually received at the proper filing location.

D&S will continue to monitor the pace of lockbox receipts and provide relevant updates.

U.S. to Require Proof of Negative COVID Test for International Travelers

The U.S. Centers for Disease Control and Prevention (“CDC”) announced that a negative Covid-19 test will be required from all air passengers entering the United States.

Under the rule, which will go into effect on January 26, all air passengers will be required to get a test within three days prior to their flight to the U.S., and to provide written documentation of their lab results, or documentation of having recovered from Covid-19 within the preceding three months. The rule will apply regardless of vaccination status and proof of immunization will not be sufficient to exempt a traveler from these requirements.

Airlines will be required to confirm all passengers are in compliance with the new rule prior to boarding, and where a passenger chooses not to take a test or cannot provide documentation of a negative test or recovery, the airline must not permit the passenger to board the flight.

Update: DHS Proposes Rule Replacing Random H-1B Cap Lottery to a Wage-Based Selection System

1/7/2021 UPDATE: On January 8, 2021 the administration will publish the final version of this rule in the Federal Register and it will take effect 60 days from publication. It is possible that the legality of the rule could be challenged in Federal Court and an injunction could be put in place preventing the rule from taking force while its legality is litigated. Similarly, the rule could also be placed on hold by the incoming Biden administration, delaying or preventing its implementation.

D&S will continue to monitor both the Biden Administration’s actions with respect to this rule as well as any lawsuits filed challenging the rule and will provide updates as they become available.

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State Department January 2021 Visa Bulletin Summary

The Department of State has released the January 2021 Visa Bulletin. D&S provides a Monthly Summary of the employment-based priority dates. USCIS has advised that, in January 2021, it will accept adjustment of status applications for employment-based petitions based on the January Bulletin’s final action dates, for the first time in several months.

With respect to Final Action Dates, all countries of chargeability, except India and China, will remain current. EB-1 China and EB-1 India will advance five months to September 1, 2019. With the exception of India and China, all other EB-2 countries of chargeability will remain current. EB-2 China will advance one month to June 1, 2016 and EB-2 India will advance one week October 8, 2009. All EB-3 categories except India and China will remain current. EB-3 China will advance one and a half months to December 15, 2017, and EB-3 India will advance one week to March 22, 2010. 

As the EB-5 Regional Center program is set to sunset on December 28, 2020, the category will be unavailable in January pending reauthorization of the program by Congress. If there is further legislative action extending this category, final action dates would immediately become current for January for all countries of chargeability except for China, which would be subject to an August 15, 2015 final action date, and for Vietnam, which would be subject to a September 15, 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, which will remain unchanged at August 15, 2015, and Vietnam, which will advance two weeks to August 15, 2017. 

With respect to Application Filing Dates, all categories (with the exception of the “Other Workers”, EB-4 special immigrants, and “Certain Religious Workers” categories) will remain unchanged from December.


Summary and Analysis of the Citizenship Discrimination Lawsuit Filed Against Facebook

What’s Happening

Following a two-year investigation into Facebook’s practices, on December 3rd, 2020, The Department of Justice, Immigrant and Employee Rights Section (IER), filed a Complaint against Facebook alleging that the company knowingly and intentionally engaged in a pattern of discrimination against U.S. workers. The Complaint charges Facebook with discrimination based on citizenship or immigration status resulting from the way the company structured and carried out its recruitment practices related to the PERM labor certification process.

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Legislative Update: Senate Version of the Fairness for High-Skilled Immigrants Act

What’s Happening

On the evening of December 2nd, 2020, The United States Senate passed an amended version of S.386/H.R.1044, otherwise known as the “Fairness for High-Skilled Immigrants Act”. This development is the latest step in a decades-long debate over the removal of numerical limits currently in place that cap the number of employment based immigrant visas (“green cards”) nationals of any specific country can be granted in a given fiscal year. These caps have long been problematic as they have resulted in significant wait times for green card applicants born in India and China due to high volume of applications filed by nationals of those countries each year and the finite availability of employment based green cards per year. Some projections put the current wait times for Indian and Chinese born nationals to obtain green cards as being longer than 50 years in some instances over 100 years (whereas the wait for someone born in nearby Bangladesh or Japan could be as little as 1 year for the same benefit).

The House version of the bill, initially passed on July 10, 2019, has been significantly amended by the Senate and will have to be reviewed and approved again by the House in its amended form in order to be presented to the executive branch for Presidential approval.

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District Court Repeals DOL and DHS Interim Final Rules Impacting H-1B Visas

What’s Happening

On the evening of December 1st, 2020, a United States District Court Judge issued a decision repealing two Interim Final Rules (IFRs) published by the Department of Homeland Security (DHS) and the Department of Labor (DOL) on October 8th, 2020, which created additional hurdles for U.S. companies seeking to employ workers H-1B, E-3, and H-1B1 visas. The DOL rule took effect immediately on October 8th, 2020 and the DHS rule had a 60-day delayed effective date and was scheduled to go into effect next week. The Court order states that both regulations are repealed effective immediately, however, the DOL has not yet issued any guidance as to how individuals seeking to submit Labor Condition Applications (LCAs) and Prevailing Wage Determinations (PWDs) under the old wage levels should proceed.

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State Department December 2020 Visa Bulletin Summary

The Department of State has released the December  2020 Visa Bulletin. D&S provides a Monthly Summary of the employment-based priority dates. USCIS has advised that, in December 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, for China all categories will remain unchanged from November, with the exception of EB-1, which advanced two months to November 1, 2020. For India, EB-1 also advances by two months to November 1, 2020, but both EB-3 and "Other Workers" retrogressed by one year to January 1, 2014. For all other countries of chargeability, all EB-1 to EB-3 and “Other Workers” categories remain current. 

As for Final Action Dates,  for both China and India EB-1 advances four months to April 1, 2019.  EB-2 China advances nine days to May 1, 2016,  EB-3 China advances one month to November 1, 2017, and China “Other Workers” advances over a month to February 15, 2009.  For India, EB-2 advances 9 days to October 1, 2009, while both EB-3 and “Other Workers” advance 15 days to March 15, 2010, while all other categories  remain current.  For all other countries of chargeability, all EB-1 to EB-3 and “Other Workers”  categories remain current. 

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 September 1, 2017.


DHS Proposes Rule Replacing Random H-1B Cap Lottery to a Wage-Based Selection System

RESTRUCTURING THE H-1B LOTTERY TO A WAGE-BASIS

On October 28, 2020 the Trump Administration proposed a significant change to the process of filing cap subject petitions for H-1B nonimmigrant classification. The proposal would replace the current random selection process by which USCIS selects H-1B registrations for filing of H-1B cap-subject petitions with a system that selects registrations based on the highest Occupational Employment Statistics (OES) prevailing wage level that the proffered wage equals or exceeds for the relevant Standard Occupational Classification (SOC) code and area(s) of intended employment. The proposed rule, the full text of which is available here, was published in the Federal Register on November 2, 2020 and comments on the rule must be submitted on or before December 2, 2020.

Please note that this rule will NOT take effect until a Final Rule is published and made effective.

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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.