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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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Due to the COVID-19 pandemic, USCIS has delayed scheduling and rescheduling application support center (ASC) appointments to collect biometrics. USCIS temporarily suspended in-person services at ASCs in response to the spread of COVID-19 for several months beginning in March 2020 to ensure the safety of employees and applicants. As a result, USCIS canceled approximately 280,000 appointments.  Appointments have resumed but at present about 1.3 million applications are waiting for their biometrics appointment.

The centers have reopened in phases, currently operating at 65% capacity since late October. USCIS advises applicants to continue to wait for a biometrics appointment notice or a Form I-797, Notice of Action, from USCIS indicating their previously collected biometrics may be reused.

Individuals are free to check their application’s status by visiting the USCIS case status website, linked here.

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On December 23, 2020, the Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced an extension of its policy allowing flexibility in requirements related to Form I-9, Employment Eligibility Verification, due to COVID-19.

This temporary guidance, issued on March 20th, 2020, was set to expire on December 31, 2020. Because of ongoing precautions related to COVID-19, DHS has extended this policy an additional 30 days until January 31, 2021.

Employers operating remotely due to COVID-19 are not required to review an employee’s employment eligibility documents in the employee’s physical presence. Employers must review the Section 2 documents remotely, through email, fax, etc., and retain physical copies within three business days. Employers should write “COVID-19” as the reason for the physical inspection delay in Section 2 Additional Information. Employers must provide written documentation of remote onboarding and a copy of their telework policy. Once normal operations resume, employees on boarded remotely must report to their employers within three business days. Employers should physically inspect the employment eligibility documents and write “documents physically examined” with the date in Section 2 Additional Information.

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On December 4th, a U.S. District Court for the Eastern District of New York ordered the Department of Homeland Security (DHS) to fully reinstate the Deferred Action for Childhood Arrivals (DACA) program, effective immediately.

The court found that DHS Acting Secretary Wolf’s, July 28th memorandum, must be set aside. This memo authorized DHS to reject all pending and future initial requests for DACA; reject all pending and future applications for advance parole absent exceptional circumstances; and shorten the period of renewed deferred action granted pursuant to the DACA policy after the issuance of the memorandum to one year.

The court also ordered DHS to post a public notice stating that new, initial DACA applications will be accepted. According to the court order, work permits are valid for two years and DACA recipients are eligible to apply for Advanced Parole.

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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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On November 2nd, 2020, USCIS published a proposed rule entitled “Modification of Registration Requirement for Petitioners Seeking to File Cap-Subject H-1B Petitions” that would alter how H-1B registrations are selected for the annual H-1B statutory cap. The proposed rule replaces the current random selection process for H-1B petitions with a new wage-based selection process which would prioritize the selection of H-1B registrations based on employers who pay the highest wages.

USCIS notes, “If finalized as proposed, this new selection process would incentivize employers to offer higher wages or petition for positions requiring higher skills and higher-skilled workers instead of using the program to fill relatively lower-paid vacancies.”

Please note, this effort would only affect H-1B registrations submitted by prospective petitioners seeking to file H-1B cap-subject petitions. It would be implemented for both the H-1B regular cap and the H-1B advanced degree exemption but would not change the order of selection between the two as established by the H-1B registration requirement final rule.

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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 November 18th, 2020, the Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) extended its flexibilities in rules for Form I-9, Employment Eligibility Verification.

The temporary guidance, issued earlier this year, was set to expire on November 19th, but it is now extended until December 31st, 2020.

Employers operating remotely due to COVID-19 are not required to review an employee’s employment eligibility documents in the employee’s physical presence. Employers must review the Section 2 documents remotely, through email, fax, etc., and retain physical copies within three business days. Employers should write “COVID-19” as the reason for the physical inspection delay in Section 2 Additional Information. Employers must provide written documentation of remote onboarding and a copy of their telework policy. Once normal operations resume, employees on boarded remotely must report to their employers within three business days. Employers should physically inspect the employment eligibility documents and write “documents physically examined” with the date in Section 2 Additional Information.

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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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