U.S. Immigration & Travel Restrictions - December 2020 Updates

Updated 12/07/2020

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.

Deferred Action for Childhood Arrivals (DACA): On Friday, December 4, a federal judge ordered the administration to fully re-implement the DACA program. The DACA program was upheld by the U.S. Supreme Court in June 2020.

Visa Bulletin: The Department of State’s December Visa Bulletin is now available, and USCIS is accepting Dates for Filing for employment-based cases.

Visa Ban: As detailed in our earlier 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 affected the ban as it relates to Diversity Visa (aka “green card lottery”) applicants and the plaintiffs of a NIV ban case. At this time, Department of State guidance requires that visa applicants have a relationship to one of the plaintiff organizations, such as the Chamber of Commerce. However, there does not appear to be a worldwide or standardized practice at visa-issuing posts; scheduling and issuances remain Embassy-by-Embassy. The ban is set to expire on 12/31 but may be extended.

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 December 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 and DOL 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 potential future changes to PPS, see our post here.

• Public Charge: As of November 5, 2020, USCIS is once again permitted to enforce its public charge rule, e.g. the “wealth test.”

• Fee Changes: USCIS filing fee and form changes were enjoined by a District Court as of September 29, 2020.

• H-1B Rule: The administration is pushing forward with new rules on H-1Bs. The changes to prevailing wages went into effect on October 8 and was put on hold by a District Court on December 1. The restriction of the definition of “specialty occupation” is also now on hold by a District Court. On October 28, the administration released a proposed rule changing the H-1B registration from a random lottery selection to a wage-based selection process.

• 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.

• Deadline Flexibility: In response to the COVID-19, USCIS will consider a response to an RFE, NOID, NOIR, and other requests and notices received up to 60 calendar days after the due date before taking any action. This flexibility applies if the issuance date listed on the request, notice, or decision is between March 1, 2020, and January 1, 2021, inclusive. See full announcement here.

• 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. The I-9 flexibility provisions have been extended to December 31, 2020.

Reminder: Changes are rapidly evolving and may not be immediately posted here.

© Jewell Stewart & Pratt PC 2020

JSP Statement on the 2020 U.S. Presidential Election

Dear Clients & Friends,

JSP welcomes the election of President-Elect Biden and Vice President-Elect Harris, and looks forward to the Biden-Harris Administration’s resolution of many damaging policies left behind by the current administration. With more than 900 changes to regulation and policy made in the past four years, this is no small feat for a new administration already tasked with enormous challenges.   

As we posted four years ago, we are a nation built by immigrants and strengthened by each new generation. Our firm strongly believes that our shared prosperity relies on welcoming the innovation and creativity of immigrants from all over the world, from all walks of life, and from all faiths and cultural traditions. We will continue to work tirelessly to help our clients achieve their dreams.

As always, we are following legal developments and will carefully consider strategies and implications for our clients’ cases as information becomes available during this transitional period and beyond. Our dedicated staff of attorneys and paralegals will continue to use every resource and tool at our disposal to further our work that promotes justice and a fair and reasonable immigration law and policy.  

Onward!

© Jewell Stewart & Pratt PC 2020

DHS publishes proposed change to cap-subject H-1B visa petition processing: a wage-based selection system

On October 28, 2020, the Department of Homeland Security (DHS) announced a notice of proposed rulemaking (NPRM) that would change the way cap-subject H-1B petitions are processed. The announced change would, in years when demand for new H-1B visas exceeds the annual numerical cap, replace the current annual lottery process with a system that prioritizes the selection of H-1B registrations based on the highest prevailing wage level that the employer’s salary offer equals or exceeds.

Prevailing wages are usually calculated by reference to data collected by the Department of Labor (DOL) through its Occupational Employment Statistics (OES) program. DOL uses OES data to set four levels of prevailing wage for occupations in locations across the United States. (On October 8, 2020, DOL made changes to this system that resulted in higher prevailing wages across the board.) Under DHS’ new rule, if more registrations are received during the H-1B registration period than is necessary to reach the year’s numerical cap, USCIS will rank and select the registrations based on the highest OES prevailing wage level that the proffered wage equals or exceeds.

USCIS will begin with registrations whose proffered wage meets or exceeds the OES Level 4 prevailing wage. If there are insufficient registrations with such wages, USCIS will then proceed in descending order to registrations whose proffered wage meets or exceeds the OES Levels 3, 2, and 1. (When USCIS had its first annual registration process for H-1B cap-subject cases, in March 2020, employers registered prospective H-1B employees without providing specific job or wage data. This proposed new regulation would require that the electronic registration form be amended to require the applicable OES prevailing wage level for the job offered.)

Thus, if more registrations are received at a particular OES prevailing wage level than is required to meet the applicable cap, USCIS will randomly select from all registrations containing that particular OES prevailing wage level. Put another way, if USCIS receives more than 65,000 registrations whose proffered wages exceed an OES wage level 4, the lottery will be run only on those registrations. If the H-1B beneficiary will work in multiple locations, each with different prevailing wages, USCIS will rank the registration based on the lowest OES wage level that the proffered wage will equal or exceed.

This proposed rule was published on November 2, 2020, and comments on the rule must be submitted on or before December 2, 2020. The public will have 60 days from November 2, 2020 to comment on the revisions to the H-1B Registration Tool and Form I-129 that will be required to implement the rule. The rule will not take effect until a Final Rule is published and made effective.

We will post further updates as they become available.

© Jewell Stewart & Pratt PC 2020 

U.S. Immigration & Travel Restrictions - November 2020 updates

Updated 11/24/2020

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 November 2020 Visa Bulletin has been released. See our separate post here. The December Visa Bulletin is also now available, and USCIS is accepting Dates for Filing for employment-based cases.

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 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, such as the Chamber of Commerce. However, there does not appear to be a worldwide or standardized practice at visa-issuing posts; scheduling and issuances remain Embassy-by-Embassy. 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 December 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 potential future changes to PPS, see our post here.

• Public Charge: As of November 5, 2020, USCIS is once again permitted to enforce its public charge rule, e.g. the “wealth test.”

• Fee Changes: USCIS filing fee and form changes were 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 went into effect on October 8, and the restriction of the definition of “specialty occupation” goes into effect in 60 days. On October 28, the administration released a proposed rule changing the H-1B registration from a random lottery selection to a wage-based selection process.

• 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. The I-9 flexibility provisions have been extended to December 31, 2020.

Reminder: Changes are rapidly evolving and may not be immediately posted here.

© Jewell Stewart & Pratt PC 2020

November 2020 Visa Bulletin Update

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

USCIS Raises Fee for Premium Processing Service to $2,500

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

DOL announces changes to prevailing wage system effective October 8, 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

Instructions for the 2022 Diversity Visa Lottery Program now available

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

U.S. Immigration & Travel Restrictions - October 2020 Updates

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

Future changes to USCIS's Premium Processing Service

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