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Two recent lawsuits have challenged USCIS rules implemented under the former administration. The rules increased processing times for H-4s and H-4 EADs.

Before March 2019, USCIS typically adjudicated H-1B petitions with any H-4 dependent petitions and H-4 EAD applications. Now, USCIS can take two years to process many H-4 applications. Current processing times at the California Service Center for I-539 H dependents are 19 – 24.5 months. Wait times increased after USCIS began requiring H-4 spouses to supply biometrics.

In Kolluri v. USCIS, filed in September 2020, plaintiffs charged that the biometrics policy was designed to make retaining or obtaining H-4 work authorization more difficult. In a motion in Gona v. USCIS, filed on February 8th, 2021, plaintiff’s counsel argues that wait times for H-4 extensions outstrip those of other extension applicants. “Regardless of which service center adjudicates the petition, the applicant is mathematically guaranteed to lose immigration status and employment authorization.”

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Today, President Biden signed three significant executive orders affecting the immigration system. The first creates a task force to reunite families separated at the border. The second reforms the asylum system at the border. The third calls for a full reevaluation of rules and regulations which the Trump administration implemented to make legal immigration more difficult. It also partially revokes and reevaluates the public charge rule, which imposed financial barriers to obtaining green card status. Please find the White House fact sheet here.

In more detail, today’s executive actions will:

  • Create a task force to reunify families. The task force will work with key stakeholders and representatives of impacted families to find separated parents and children. The task force will report regularly to the President with recommendations to reunite families and prevent future separations. This Order revokes the Trump Administration’s Executive Order that permitted separating families at the Southern Border.
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On December 31, 2020, President Trump issued a proclamation continuing Proclamations 10014 and 10052. The proclamations suspended the entry of certain immigrants and non-immigrants into the United States in light of the COVID-19 pandemic. They were due to expire on December 31 and have been continued until March 31, 2021.

Proclamation 10052 went into effect on June 24 and limits the entry of non-immigrants on H-1B, H-2B, L, and most J visas, and their spouses or children. Proclamation 10014 went into effect on April 23 and suspends the entry of those seeking admission using an immigrant visa. The restrictions apply to those outside of the US without a valid visa on the date the proclamations respectively became effective.

There are numerous exemptions, including for permanent residents, children and spouses of US citizens, and those whose entry would be in the “national interest.” Those issued other forms of valid travel documentation – such as Advanced Parole – may also be able to travel.

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The January 2021 visa bulletin has been released. It is available here.

Employment-based petitions must refer to the Final Action chart, not the Dates for Filing chart. This means that dates for EB-1, EB-2, and EB-3 applicants from China or India have retrogressed.

The employment-based dates are as follows: EB-1 is current for all countries except China (Sep 1, 2019) and India (Sep 1, 2019).  EB-2 is current for all countries except China (Jun 1, 2016) and India (Oct 8, 2009). EB-3 is current for all countries except China (Dec 15, 2017) and India (Mar 22, 2010). EB-3 Other Workers is current for all countries except China (Mar 1, 2009) and India (Mar 22, 2010). EB-4 is current for all countries except El Salvador, Guatemala, and Honduras (Mar 1, 2018) and Mexico (Dec 1, 2018). EB-5 non-regional centers are current for all countries except China (Aug 15, 2015) and Vietnam (Sep 15, 2017).

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On December 1, 2020, the U.S. District Court for the Northern District of California found that the Department of Labor (DOL) failed to show good cause in forgoing advance comment for its October 8th wage guidance. The court’s order sets aside that guidance, which altered the prevailing wage methodology and made green card, H-1B, H-1B1, and E-3 employment more expensive for many employers. On December 3, 2020, the U.S. District Court for New Jersey issued a similar preliminary injunction applying to the plaintiffs in that case.

To comply with the courts’ orders, DOL will update the application system used for labor certifications and replace the recently implemented wage data (10/8/2020-6/30/2021) with the wage data in use on October 7th.

Updates began Friday December 4. There will be some disruptions to services while they are completed. Beginning December 9th employers and attorneys will again be able to file new Labor Condition Applications (LCAs) where the Occupational Employment Statistics (OES) survey data is the prevailing wage source. DOL will resume processing Prevailing Wage Determinations (PWDs) for use in the PERM step of immigrant petitions on December 15th.

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The December 2020 visa bulletin was released today, November 23. It is available here.

Employment-based petitions must refer to the Dates for Filing chart. For employment-based petitions, only EB-3 and EB-3 Other Workers applicants from India retrogressed compared to the November 2020 bulletin.

The employment-based dates are as follows: EB-1 is current for all countries except China (Nov 1, 2020) and India (Nov 1, 2020).  EB-2 is current for all countries except China (Oct 1, 2016) and India (May 15, 2011). EB-3 is current for all countries except China (Jun 1, 2018) and India (Jan 1, 2014). EB-3 Other Workers is current for all countries except China (May 1, 2009) and India (Jan 1, 2014). EB-4 is current for all countries except El Salvador, Guatemala, and Honduras (May 1, 2018). Religious Worker visas are current for all countries except El Salvador, Guatemala, and Honduras (May 1, 2018). EB-5 non-regional centers are current for all countries except China (Dec 15, 2015). EB-5 regional centers are current for all countries except China (Dec 15, 2015).

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On October 6 the Department of Labor (DOL) issued guidance changing the wage determination process for H-1B, H-1B1, E-3, and employment-based immigrant petitions. Under the new rule, DOL will differently assess Occupational Employment Statistics (OES) data to calculate the “prevailing” wage. The rule effectively makes sponsorship of these petitions more expensive by raising the minimum qualifying wage that employers must pay.

Within the last week, multiple lawsuits have been filed challenging the rule. The first, an October 16 suit by tech companies, seeks a preliminary and permanent injunction, arguing that the new wage standards conflict with statutory requirements under the Immigration and Nationality Act. Further, plaintiffs charge that DOL released the guidance without the requisite notice and comment period. The rule was announced on October 6 and took effect on October 8; by October 13, DOL was issuing wage determinations based on the revised OES data.

Tech companies also contest DOL’s underlying reasoning. While DOL cited high national unemployment as the basis for the statistical adjustment, government data shows low unemployment for technology positions – a common occupation for the affected highly-skilled workers.

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On October 5, USCIS released a reminder that employers enrolled in E-Verify must take action on Tentative Nonconfirmations (TNCs) within 10 working days. Starting on November 5, employers who are out of compliance will begin receiving notices after 10 days urging them to take action on their employee’s TNC.

TNCs indicate a potential mismatch between the Form I-9, Employment Eligibility Verification and Social Security Administration (SSA) or Department of Homeland Security (DHS) records.

When employers receive a TNC, they must notify the employee; provide the employee with the Further Action Notice; privately review the Further Action Notice with the employee; and have the employee confirm the information listed.

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On October 1 the Trump administration announced a new proposal to limit U.S refugee admissions to 15,000 for fiscal year 2021. That number would represent a record low, down from a ceiling of 18,000 this fiscal year.

The actual number of refugees admitted tends to fall below the announced ceiling. This year only 11,000 refugees were admitted – also a record low.

Under previous administrations, the US accepted more refugees annually than all other nations combined. As the chart below demonstrates, refugee admissions have now decreased every year since 2017.

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Due to EAD production delays, USCIS announced that employees may use a Form I-797, Notice of Action, with a notice date from 12/1/19 to 8/20/20 informing approval of an Application for Employment Authorization (Form I-765) as a list C #7 document for Form I-9 compliance. Employees may do so until 12/1/20.

Employees who present a Form I-797 Notice of Action for new employment must also present their employer with an acceptable identity document. By December 1, 2020 employees will need to present their employers with new evidence of employment authorization.

Find the full USCIS announcement here.

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