Immigration News
Jewell Stewart Pratt Beckerson & Carr PC
On October 29, 2020, the last day to file October adjustment of status filings, the Department of State issued the November Visa Bulletin, and USCIS announced that it is accepting the Dates for Filing Chart for November filings. The cutoff dates remain the SAME as the October Visa Bulletin, essentially extending today’s deadline to the end of November. Thank you for your patience as our team diligently works to assure that cases are filed ASAP.
© Jewell Stewart & Pratt PC 2020
As we mentioned in our prior post, on September 30, 2020, Congress passed a continuing resolution to fund the government through December 11, 2020, and the president signed it into law. The continuing resolution contains certain changes to USCIS’s Premium Processing Service or “PPS,” including raising the filing fee, and making PPS available to new categories such as EB-1Cs, NIWs, I-539s, and EADs. On October 16, 2020, USCIS announced that any Premium Processing Service requests received on or after October 19, 2020, must be filed with a $2,500 fee. No new additional categories were designated as PPS-eligible.
© Jewell Stewart & Pratt PC 2020
December 7, 2020 update:
On December 1, 2020, the U.S. District Court for the Northern District of California set aside the wage change rule, requiring USCIS and the Department of Labor to revert back to the previous prevailing wage system.
Original Post:
U.S. immigration law requires employers to pay certain workers, including those working pursuant to H-1B, E-3, and H-1B1 visas, the greater of (1) the actual wage paid by the employer to all other individuals with similar qualifications for the employment in question, or (2) the prevailing wage level for the occupation in the area of employment. On October 6, 2020, the U.S. Department of Labor (DOL) announced changes to prevailing wage system, effective October 8, 2020, that will result in higher prevailing wages for all occupations.
As background, prevailing wages are usually calculated using data collected by DOL’s Office of Foreign Labor Certification (OFLC). In H-1B, H-1B1, and E-3 visa cases, the prevailing wage is then included in the Labor Condition Application (LCA) that the employer must have certified by DOL before the actual visa petition or application can be filed with the appropriate agency. DOL also uses OFLC data to set prevailing wages in its PERM program, which is often the first part of the employment-based permanent residence process.
DOL’s interim final rule (IFR), effective October 8, 2020, will change the method of computation of prevailing wages and will directly result in higher prevailing wages for all occupations. The rule will mostly apply only to prevailing wages calculated on or after October 8. It will not be applied to any previously-approved prevailing wage determinations, permanent labor certification applications, or LCAs. However, going forward, employers beginning new petitions or applications for H-1B, E-3, H-1B1, or PERM labor certification will notice an immediate increase in the OFLC prevailing wage data.
Taken with the U.S. Department of Homeland Security’s overhaul of the H-1B visa system, regulations for which are expected shortly, this change to the prevailing wage system may make it harder for U.S. employers to obtain visas for workers to fill a temporary need, adding to the stresses already imposed by the COVID-19 pandemic and an ailing U.S. economy. Existing prevailing wage data tends to skew higher than real-life salaries—for example, the prevailing wage for a software development manager with a bachelor’s degree and over four years of experience, in the San Francisco Bay Area, is $252,117 today (October 7, 2020)—so the new data may put visas out of reach for some employers.
These changes have been made at extremely short notice, and may be challenged in litigation; further updates will be posted here as they occur.
© Jewell Stewart & Pratt PC 2020
The U.S. Department of State’s instructions for the 2022 Diversity Immigrant Visa Program (DV-2022) are now available. Entries for the DV-2022 program must be submitted electronically between October 7 and November 10, 2020.
Persons born in the following countries are NOT eligible to apply:
Bangladesh, Brazil, Canada, China (including Hong Kong SAR), Colombia, Dominican Republic, El Salvador, Guatemala, Haiti, Honduras, India, Jamaica, Mexico, Nigeria, Pakistan, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam.
Persons born in Macau SAR and Taiwan are eligible.
Eligibility requirements and entry instructions are on the U.S. Department of State’s DV lottery web site.
The congressionally-mandated Diversity Immigrant Visa Program is administered annually by the Department of State under Section 203(c) of the Immigration and Nationality Act (INA). This law provides for a class of immigrants known as diversity immigrants, with visas made available to persons from countries with historically low rates of immigration to the United States. For fiscal year 2022, 55,000 diversity visas will be available.
© Jewell Stewart & Pratt PC 2020
Updated 10/23/2020
Disclaimer: Any foreign national considering international travel should have an attorney review the particular circumstances of their case as there are currently several “bans” in effect.
Visa Bulletin: The Department of State’s October 2020 Visa Bulletin has been released. See our separate post here.
Visa Ban: As detailed in our blog post, Presidential Proclamations 10014 and 10052 affect the issuance of new/first-time H, L, and certain J visas, as well as certain immigrant visas applications, with some exceptions. As of October 1, 2020, court decisions had only affected the ban as it relates to Diversity Visa (aka “green card lottery”) applicants and the plaintiffs of a NIV ban case. Since then, the Dept. of State made updates to its website about how it will apply the lifting of the ban. The most recent update is that visa applicants must have a relationship to one of the plaintiff organizations. We are monitoring this development closely.
COVID Travel Ban for Europe, China, Iran, Brazil: Arrival restrictions for persons present in Europe (Schengen, U.K., Ireland), China, Iran, or Brazil (“COVID travel ban”) are continuing until cancelled or modified. Certain national interest exemptions are available for the European COVID ban. Note that due to Embassy closures and differences in how Embassies are interpreting the bans, the COVID ban is creating a de facto visa ban in many cases. CBP/CDC airport health screenings and requirements to land at a CBP-designated airport ended on September 14, 2020, however the COVID-related travel bans for Schengen, U.K., Ireland, China and Brazil remain in place.
Closure of Land Ports of Entry (Canada & Mexico): U.S. Customs & Border Protection has extended the land border closure (with exceptions for essential travel) until at least November 21, 2020.
Phased Embassy Re-Opening: Routine visa issuance operations at U.S. Embassies and Consulates worldwide continue to be limited or suspended. On July 14, 2020, the Department of State announced a phased resumption of routine visa services. Some Embassies are showing appointment availability, and emergency appointments are available on a case-by-case basis at some Embassies, for non-banned categories, emergencies, and assistance with COVID ban waivers.
NPRM on Students and Media visas: On September 25, 2020, DHS issued a Notice of Proposed Rulemaking establishing a fixed time period for admission for students, exchange visitors, and representatives of foreign media. The rule would replace the “duration of status” admission period. The rule must now go through the usual “Notice and Comment” period; it is not final.
USCIS Updates:
Premium Processing Service: USCIS raised the PPS filing fee to $2,500 for cases received on or after October 19, 2020. For an update on future changes to PPS, see our post here.
Public Charge: As of September 22, 2020, USCIS is once again implementing its public charge rule, e.g. the “wealth test.”
Fee Changes: USCIS filing fee and form changes are enjoined by a District Court as of September 29, 2020.
H-1B Rule: The administration is pushing forward with a new rule on H-1Bs. The changes to prevailing wages are going into effect on October 8, and the restriction of the definition of “specialty occupation” goes into effect in 60 days. We will post a more detailed summary ASAP.
H-1B Cap: On August 14, 2020, USCIS ran an (unannounced) second lottery on existing H-1B cap registrations. The filing period for the newly selected registration cases is from August 17 to November 16, 2020.
Interviews/Appointments: On June 4, 2020, USCIS Field Offices started a phased re-opening process. Most employment-based adjustment of status interviews are being waived. Naturalization interviews are being prioritized. As interviews and in-person services are resumed, including fingerprints (biometrics), new notices will be mailed out to applicants.
Service center operations remain mostly unchanged.
U.S. Passport Agency: On August 3, 2020, the U.S. Passport Agency announced a phased re-opening. https://travel.state.gov/content/travel/en/passports.html
Form I-9 Completion During COVID-19: See our August post for further information.
Reminder: Changes are rapidly evolving and may not be immediately posted here.
© Jewell Stewart & Pratt PC 2020
On September 30, 2020, Congress passed a continuing resolution to fund the government through December 11, 2020, and the president is expected to sign it into law. The continuing resolution contains certain changes to USCIS’s Premium Processing Service or “PPS,” including raising the filing fee, and making PPS available to new categories such as EB-1Cs, NIWs, I-539s, and EADs. Although the law goes into effect immediately, the changes to PPS do not. USCIS must now implement the law by proposing regulations, which can take several months. We are tracking this closely and when there are regulations promulgated, we will be reaching out to clients who may benefit from using PPS in new and existing/already pending cases. Note that this change is unrelated to USCIS’s Fee Rule which is on hold as of September 29, 2020, due a District Court injunction.
© Jewell Stewart & Pratt PC 2020
On September 24, 2020, the Department of State issued its first Visa Bulletin of the new Fiscal Year for October 2020. USCIS then announced that it is accepting the Dates for Filing Chart for October filings. EB-1, EB-2, and EB-3 “All Other” are all current for filing. For EB-1 India and China, the cutoff date is September 1, 2020. EB-2 and EB-3 India/China also see modest advancements. We are immediately reviewing our files and reaching out to clients who are eligible to file. Thank you for your patience!
© Jewell Stewart & Pratt PC 2020
JSP mourns the loss of the inspirational and irreplaceable Supreme Court Justice Ruth Bader Ginsburg. She not only blazed a trail for women in the law, but set an example for reaching the very highest levels of achievement in the practice. Our hearts are heavy, and we send our condolences to her family and loved ones.
Updated 9/29/2020
Disclaimer: Any foreign national considering international travel should have an attorney review the particular circumstances of their case as there are currently several “bans” in effect.
Visa Bulletin: The Department of State’s October 2020 Visa Bulletin has been released. See our separate post here.
Visa Ban: As detailed in our frequently updated blog post, Presidential Proclamations 10014 and 10052 affect the issuance of new/first-time H, L, and certain J visas, as well as certain immigrant visas applications, with some exceptions. As of September 7, 2020, court decisions have only affected the ban as it relates to Diversity Visa (aka “green card lottery”) applicants.
COVID Travel Ban for Europe, China, Iran, Brazil: Arrival restrictions for persons present in Europe (Schengen, U.K., Ireland), China, Iran, or Brazil (“COVID travel ban”) are continuing until cancelled or modified. Certain national interest exemptions are available for the European COVID ban. Note that based on how the Department of State is implementing the guidance, which remains Embassy-by-Embassy, the COVID ban is creating a de facto visa ban in many cases. CBP/CDC airport health screenings and requirements to land at a CBP-designated airport ended on September 14, 2020, however the COVID-related travel bans for Schengen, UK, Ireland, China and Brazil remain in place.
Closure of Land Ports of Entry (Canada & Mexico): U.S. Customs & Border Protection has extended the land border closure (with exceptions for essential travel) until at least October 21, 2020.
Phased Embassy Re-Opening: Routine visa issuance operations at U.S. Embassies and Consulates worldwide continue to be limited or suspended. On July 14, 2020, the Department of State announced a phased resumption of routine visa services. Some Embassies are showing appointment availability, and emergency appointments are available on a case-by-case basis at some Embassies, for non-banned categories, emergencies, and assistance with COVID ban waivers.
NPRM on Students and Media visas: On September 25, 2020, DHS issued a Notice of Proposed Rulemaking establishing a fixed time period for admission for students, exchange visitors, and representatives of foreign media. The rule would replace the “duration of status” admission period. The rule must now go through the usual “Notice and Comment” period; it is not final.
USCIS Updates:
Public Charge: As of September 22, 2020, USCIS is once again implementing its public charge rule, e.g. the “wealth test.”
Fee Changes: USCIS filing fee and form changes will take effect on October 2, 2020.
H-1B Rule: The administration is pushing forward with a new rule on H-1Bs.
H-1B Cap: On August 14, 2020, USCIS ran an (unannounced) second lottery on existing H-1B cap registrations. The filing period for the newly selected registration cases is from August 17 to November 16, 2020.
Interviews/Appointments: On June 4, 2020, USCIS Field Offices started a phased re-opening process. Most employment-based adjustment of status interviews are being waived. Naturalization interviews are being prioritized. As interviews and in-person services are resumed, including fingerprints (biometrics), new notices will be mailed out to applicants.
Service center operations remain mostly unchanged.
USCIS’s planned furlough has been delayed/cancelled at this time.
U.S. Passport Agency: On August 3, 2020, the U.S. Passport Agency announced a phased re-opening. https://travel.state.gov/content/travel/en/passports.html
Form I-9 Completion During COVID-19: See our August post for further information.
Reminder: Changes are rapidly evolving and may not be immediately posted here.
© Jewell Stewart & Pratt PC 2020
09/29/2020 update:
On September 29, 2020, the U.S. District Court for the Northern District of California granted the motion for a preliminary injunction (“PI”) filed by eight nonprofit organizations in the ongoing Fee Rule litigation. The PI has a nationwide effect and bars the rule in its entirety for the duration of the litigation. Therefore, DHS may not require its new fees, forms, and other changes outlined below.
Original post:
On August 3, 2020, the Department of Homeland Security published a new rule containing numerous adjustments to U.S. Citizenship and Immigration Services’ (USCIS) filing fee schedule. In the new rule, DHS is planning on an upward adjustment of USCIS fees “by a weighted average of 20 percent.”
The rule, set to go into effect on October 2, 2020, further increases fees for many commonly used forms such as N-400 for naturalization, I-485 for Adjustment of Status (AOS), I-140 for immigrant visa petitions, and I-129 for nonimmigrant visa petitions, which will carry separate fees for each visa classification.
Other significant changes in the rule include:
Employment Authorization (EAD) and Advanced Parole (AP) are now “unbundled” from AOS applications – meaning that each form must be filed with the corresponding fees, whereas previously when filed with a Form I-485 the EAD and AP fees were waived.
AOS fees for children under 14 years old are now the same as the adult fee.
Separate biometrics fees are now subsumed within the form’s fee (in most cases the separate biometrics fee is no longer required).
Premium Processing Service (PPS) is changing to 15 business days instead of 15 calendar days.
Forms available online have different fees for filing online vs. paper; the filing the fee will be $10 lower for applying online.
The American Immigration Lawyers Association (“AILA”) has published a searchable table of fee adjustments, located here. USCIS will be publishing new forms 30 days before the rule will take effect, and new forms are required starting October 2, 2020, with some limited exceptions.
On August 20, 2020, AILA and partners sued USCIS over the rule, claiming that the agency lacked authority to issue the rule, and that its issuance violated the Administrative Procedures Act. The litigation is ongoing as of this writing.
© Jewell Stewart & Pratt PC 2020
