October Visa Bulletin Shows Major Movement in Employment-Based Cases; USCIS Applies Filing Date Rather Than Final Action Date to Certain Adjustment Applications
On September 24, 2020, the Department of State released the October 2020 Visa Bulletin, which shows major movement in employment-based cases.
Among other things, the Filing Date for an EB-3 from India has advanced nearly five years to January 1, 2015, from February 1, 2010, while the Filing Date for an EB-1 from India advanced to September 1, 2020, from July 1, 2018. By contrast the Filing Date for EB-2 India advanced to only May 15, 2011, from August 15, 2009.
USCIS issued guidance the same day stating that the Filing Date, rather than the Final Action Date, applies to employment-based I-485 adjustment of status (AOS) applications. The Alliance of Business Immigration Lawyers (ABIL) said that in the past, USCIS has been reluctant to allow applicants to use the Filing Date, only doing so in very limited instances. The Filing Date only allows the filing of an I-485 application when permitted by the USCIS. The Final Action Date determines when lawful permanent residence is issued.
As an example, ABIL noted, since USCIS will accept I-485 filing, a new I-140 would need to be filed for an individual who, for example, wants to downgrade from EB-2 to EB-3. Since the EB-3 Filing Date has significantly overtaken the EB-2 Filing Date, a beneficiary of an approved EB-2 petition may want to re-file, or downgrade to EB-3. If the beneficiary qualified under EB-2, the beneficiary should be able to qualify for EB-3, and the appropriate “professional” or “skilled worker” category would need to be checked on the form. The individual may still rely on an old labor certification when filing the I-140 under EB-3. The I-140 can be filed concurrently with the I-485, so the I-140 need not be approved at the time the I-485 is filed with USCIS.
There is nothing in the law or regulations precluding the existence of two I-140 petitions, one under EB-2 and the other under EB-3. Still, a beneficiary who wishes to downgrade from EB-2 to EB-3 must seek legal advice.
ABIL also recommends that AOS applicants also file applications for an employment authorization document (EAD) and advance parole (AP), to enable work and travel in the event of a disruption in the applicant’s current immigration status, ability to obtain a visa, or position.
Contact your ABIL attorney for advice in specific situations.
- October 2020 Visa Bulletin, https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2021/visa-bulletin-for-october-2020.html
- “When to File Your Adjustment of Status Application for Family-Sponsored or Employment-Based Preference Visas: October 2020,” https://bit.ly/3mU2HCX
- State Department guidance, updated September 17, 2020, https://travel.state.gov/content/travel/en/News/visas-news/diversity-visa-DV-2020-update.html
- “Downgrading from EB-2 to EB-3 Under the October 2020 Visa Bulletin,” The Insightful Immigration Blog, http://blog.cyrusmehta.com/2020/09/downgrading-from-eb-2-to-eb-3-under-the-october-2020-visa-bulletin.html
ICE Proposes a Fixed Time Period of Admission and Extension-of-Stay Procedure for Nonimmigrant Students, Exchange Visitors, Foreign Media Representatives
U.S. Immigration and Customs Enforcement (ICE) proposes to amend its regulations by changing the admission period of F, J, and I individuals from duration of status to admission for a fixed time period. ICE said that admitting individuals in those categories for a fixed period will require those who wish to remain in the United States beyond their authorized admission period to apply for an extension of stay with U.S. Citizenship and Immigration Services or to leave the United States and apply for admission with U.S. Customs and Border Patrol at a port of entry.
If finalized without change, the rule would make the biggest changes to regulation of international students and scholars in 20 years. Written comments on the proposed rule are due by October 26, 2020, via the method identified in the notice.
- ICE notice of proposed rulemaking, 85 Fed. Reg. 60526 (Sept. 25, 2020), https://www.justice.gov/eoir/page/file/1319896/download
- “Fact Sheet: Proposed Regulation on the Change of Admission Period of F, J, and I Nonimmigrants from Duration of Status,” Presidents’ Alliance on Higher Education and Immigration, https://www.presidentsalliance.org/fact-sheet-proposed-regulation-on-the-change-of-admission-period-of-f-j-and-i-nonimmigrants-from-duration-of-status/
EAD Delays Due to COVID-19: E-Verify/I-9 Guidance
U.S. Citizenship and Immigration Services (USCIS) issued a notice on September 23, 2020, stating that issuance of certain employment authorization documents (EADs) may be delayed due to the COVID-19 pandemic.
To complete the Form I-9 work authorization verification process, new employees who are waiting for their EADs, and current employees who require reverification, may present certain Forms I-797, Notice of Action, as a List C #7 document issued by the Department of Homeland Security that establishes employment eligibility, even though the notice states it is not evidence of employment authorization, USCIS said. For the notice to be acceptable, it must include a Notice Date issued between December 1, 2019, and August 20, 2020, and indicate that USCIS has approved the employee’s Form I-765, Application for Employment Authorization. Both new and current employees may present this notice to complete the I-9 until December 1, 2020. New employees must also present an acceptable List B identity document.
USCIS said that by December 1, 2020, employers must reverify employees who presented the notice as a List C document. Those employees must present new evidence of employment authorization—either their new EADs or any other acceptable documentation they choose—from either List A or List C.
- USCIS notice, https://www.uscis.gov/i-9-central/form-i-9-related-news/employment-authorization-document-ead-delays-due-to-covid-19
DOL Announces Permanent Adoption of Electronic Issuance of PERM Labor Certifications
The Department of Labor’s (DOL) Office of Foreign Labor Certification (OFLC) announced on September 25, 2020, that it is permanently adopting the electronic issuance of PERM labor certifications to employers and their authorized attorneys or agents.
On March 24, 2020, OFLC announced that due to the impact of the COVID-19 pandemic, it would electronically issue PERM labor certifications to employers and their authorized attorneys or agents through June 30, 2020. On June 16, 2020, OFLC announced that it was extending that period through September 30, 2020. On July 30, 2020, DOL signed a memorandum of agreement (MOA) providing access to the Department of Homeland Security (DHS) to all applications for permanent labor certification submitted to OFLC through the PERM online system, including the ability to verify that a PERM application has been certified. OFLC said the MOA “eliminates the need for duplicate certification requests and increases the integrity of the PERM program by supporting efforts to combat instances of fraud and abuse in connection with labor certification and employment-based immigrant and nonimmigrant programs.”
- OFLC announcement, Sept. 25, 2020, https://www.dol.gov/agencies/eta/foreign-labor/
CBP Publishes Notices Extending Travel Restrictions at Land Ports of Entry Between the United States and Canada, Mexico
U.S. Customs and Border Protection (CBP) issued notices extending temporary restrictions on travel of individuals from Canada and Mexico into the United States along land ports of entry at the border. Such travel is limited to “essential travel,” as defined in the notice, effective through October 21, 2020.
CBP said the restrictions were necessary to lower the risk of transmission and spread of the virus associated with COVID-19.
- CBP notice (Canada), 85 Fed. Reg. 59670 (Sept. 23, 2020), https://bit.ly/3cG7tiH
- CBP notice (Mexico), 85 Fed. Reg. 59669 (Sept. 23, 2020), https://bit.ly/2S43cfE
- Department of Homeland Security fact sheet, updated September 18, 2020, https://www.dhs.gov/news/2020/09/18/fact-sheet-dhs-measures-border-limit-further-spread-coronavirus
USCIS Issues New Guidance on Application of Public Charge Rule
U.S. Citizenship and Immigration Services (USCIS) said it will apply the public charge final rule and related guidance in the USCIS Policy Manual to all applications and petitions postmarked (or submitted electronically) on or after February 24, 2020. For those who sent their applications or petitions by commercial courier (for example, UPS, FedEx, or DHL), USCIS will use the date on the courier receipt as the postmark date.
USCIS released the guidance on September 22, 2020, on its application of the public charge final rule and related guidance to applications and petitions in light of a September 11, 2020, decision by the U.S. Court of Appeals for the Second Circuit (State of New York, et al. v. DHS, et al. and Make the Road NY et al. v. Cuccinelli) that allows the Department of Homeland Security (DHS) to resume implementing the rule nationwide, including in New York, Connecticut, and Vermont. The decision stays a July 29, 2020, injunction issued during the COVID-19 pandemic that prevented DHS from enforcing the public charge final rule during the national health emergency.
- USCIS notice, https://www.uscis.gov/green-card/green-card-processes-and-procedures/public-charge/injunction-of-the-inadmissibility-on-public-charge-grounds-final-rule
- Final Rules on Public Charge Determinations, NAFSA, https://www.nafsa.org/regulatory-information/final-rules-public-charge-determinations
DOL Interim Final Rule Expected to Raise Wages for H-1B, H-1B1, E-3, and PERM Workers
According to reports, with no advance notice or publication in the regulatory agenda, the Department of Labor submitted an interim final rule on September 16, 2020, to the Office of Management and Budget (OMB) to change the wage minimums and related requirements for H-1B, H-1B1, E-3, and PERM workers. Expected to be included are the H-1B1 visa for Chile and Singapore professionals and the E-3 for Australia professionals.
This follows on the heels of another interim final rule sent to OMB by the Department of Homeland Security that will redefine the H-1B specialty occupation, the employer-employee relationship, and H-1B employment.
No description has been provided for the latest rule, “Restructuring of H-1B/H-1B1/E-3 and PERM Wage Levels,” but it is expected to raise the minimum wage for such workers. Publication as an interim final rule means that the rule will take effect without an opportunity for public comment beforehand, although comments can be made later. OMB has up to 90 days to review the rule before publication. Litigation is likely.
- Law360, “Labor Dept. Preps Wage Level Changes for High-Skilled Visas,” https://bit.ly/3iQNdgA (available by registration)
USCIS Sends Reminder to Ensure Employees Choose the Correct Attestation on Form I-9
U.S. Citizenship and Immigration Services (USCIS) disseminated a reminder on September 17, 2020, noting that employers are not liable for any erroneous attestations an employee makes in Section 1 of Form I-9, Employment Eligibility Verification. Rather, an employer must ensure that the employee checks only one box to complete Section 1. To ensure employees can complete Section 1 accurately, the employer must provide them with the entire Form I-9, including the instructions for completing the form.
Employers must not treat any employee different from others because of their selected or perceived citizenship, immigration status, or national origin, USCIS said in its email. Employers should never demand that employees select a specific attestation or ask for or demand documents for completion of Section 1. Additionally, when completing Section 2 of Form I-9, the employer should never ask or require employees to show specific documents because of their national origin, ethnicity, immigration or citizenship status, race, color, religion, age, gender or disability, or because of any other protected characteristic, USCIS said.
- Link to USCIS reminder, https://www.aila.org/File/Related/20091501a.pdf
I-9 Requirements Flexibility Extended for Additional 60 Days
On September 15, 2020, the Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced an extension of certain flexibilities for employers in complying with requirements related to Form I-9, Employment Eligibility Verification. This temporary guidance was set to expire September 19, but because of ongoing precautions related to COVID-19, DHS has extended the policy for an additional 60 days.
This provision only applies to employers and workplaces that are operating remotely. USCIS said employers must monitor the DHS and ICE websites for additional updates about when the extensions end and normal operations resume. E-Verify participants who meet the criteria and choose the remote inspection option should continue to follow current guidance and create cases for their new hires within three business days from the date of hire.
- USCIS notice, https://www.uscis.gov/i-9-central/form-i-9-related-news/form-i-9-requirements-flexibility-extended-for-an-additional-60-days
- ICE notice, https://www.ice.gov/news/releases/ice-announces-extension-i-9-compliance-flexibility
- Original USCIS news release with details, https://www.ice.gov/news/releases/dhs-announces-flexibility-requirements-related-form-i-9-compliance
USCIS Issues Policy Alert on O Nonimmigrant Visa Classifications
On September 17, 2020, U.S. Citizenship and Immigration Services (USCIS) issued a policy alert and published a new section in its Policy Manual related to the “O” nonimmigrant visa classifications. The new guidance (1) expands on how officers determine whether an O-1 petitioner has satisfied the evidentiary criteria and established in the totality of the evidence that a beneficiary has extraordinary ability, or extraordinary achievement in the motion picture and television industry, as applicable; and (2) clarifies the circumstances under which a petitioner may rely on “comparable evidence” to meet the evidentiary requirements for certain O-1 beneficiaries.
O-1 nonimmigrant status is available to individuals of “extraordinary ability” in the sciences, arts, business, education, and athletics, and to those with a record of “extraordinary achievement” in the motion picture or television industry, who are coming to the United States temporarily to work in their areas of extraordinary ability or achievement. O-2 status is available for essential support personnel coming to the United States solely to assist an O-1 artist or athlete.
USCIS is also incorporating into the Policy Manual existing guidance relating to certain nonimmigrant athletes, coaches and entertainers (P-1, P-2, and P-3 nonimmigrant classifications), and their essential support personnel.
- USCIS policy alert, https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20200917-ExtraordinaryAbility.pdf
- USCIS Policy Manual, Part M—Aliens of Extraordinary Ability or Achievement (O), https://www.uscis.gov/policy-manual/volume-2-part-m
Check out the firm’s new COVID-19 Resource Center for the latest on COVID-related immigration news and firm updates when needed.
IN THE NEWS
William A. Stock
Bill was quoted in this Forbes article on his thoughts on the interim final rule and how it might hold up against litigation.
JD Supra republished Klasko’s September immigration updates and was one of its most popular posts last month.
William A. Stock
Bill’s client alert on the DHS publishing a Notice in the Federal Register terminating arrival restrictions was picked up by JD Supra.
William A. Stock
Bill was quoted in Mitratech Holdings’ blog, which was a roundup of day one of their virtual conference “Interact 2020”.
RECENT SPEAKING ENGAGEMENTS
H. Ronald Klasko
On September 10th, Ron spoke in a Strafford webinar about pre-immigration tax and U.S. investment planning for high net worth individuals.
H. Ronald Klasko | F. Oliver Yang
Ron and Oliver spoke at a CIFA and Beijing virtual event on E-2 and citizenship-by-investment.
William A. Stock
Bill participated in Mitratech’s annual conference, this year virtually, called Interact 2020. He spoke on the panel “Protecting Your Most Important Assets, Your People!” on September 22.
UPCOMING SPEAKING ENGAGEMENTS
Michele G. Madera
Michele will be speaking at the AILA 2020 Midwest Regional Conference on a panel titled Ethics: How to Manage Your Practice Under Challenging Conditions on October 10th.
On October 12th, Anu will be speaking as a panelist at this educational event at the Charles Widger School of Law about the challenges facing immigration lawyers today.
Jessica A. DeNisi
On October 13th-14th, Jessica will speak as a distinguished panelist at the 2020 EB-5 & Uglobal Virtual Expo Hong Kong event.
H. Ronald Klasko | Jessica A DeNisi | F. Oliver Yang
Ron, Jessica, and Oliver will be partnering with Chetcuti Cauchi Associates on October 14 to talk about the E-2 visa and Citizenship-by-investment country programs as a U.S. immigration option for high net worth foreign nationals.
ICYMI: RECENT BLOG POSTS AND ALERTS
Questions about the October 2020 Visa Bulletin and Applying for Adjustment of Status
Bill Stock answers pressing questions about filing an adjustment status since the October 2020 visa bulletin was released.
Employment-Based Visa Bulletin Analysis – October 2020
Many employment-based visa categories are now current. Click here for an analysis based on AILA’s monthly updates.
Podcast Episode 16: The Latest on E-2 Visa with Citizenship-by-Investment
In this episode, Liam Sweeney talks with Jessica DeNisi and Oliver Yang about the latest updates to this creative solution that many foreign nationals have utilized since 2017. Click here to listen!
Client Alert: DHS Ends Arrival Restrictions for Certain Air Travelers; Visa Bans Unaffected
In this client alert, Bill Stock addresses the Department of Homeland Security publishing a Notice in the Federal Register terminating arrival restrictions,
Podcast Episode 15: Who Can Travel to the U.S. Right Now?
In this episode, Michele Madera and Bill Stock answer hot questions and discuss the latest news on immigration-related travel to the U.S. and the current litigation challenging the proclamation and more recently issued guidance in July. Click here to listen!
Successful Litigation Challenging USCIS Interpretation of Guaranteed Redemptions
In this blog, Ron Klasko explains the significance of the firm’s victory in Mirror Lake Village, LLC v. Wolf, including a discussion of the facts of the Mirror Lake investment, the language of the court’s decision, and the significance of the decision to transactions in the EB-5 context.
Every month one Klasko employee is nominated for a Ronny Award. This month the Ronny Award went to Marketing Manager Kristin Dohan. Her nominator wrote “I would like to nominate Kristin Dohan for the Ronnie! Kristin started a “parents” team chat and it has been a great way to stay connected to other parents at the firm for support during this difficult time. Thank you, Kristin, for creating this channel!” Congratulations, Kristin!
This newsletter was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers, of which Klasko Immigration Law Partners is an active member.