Continued Delays in I-140 and I-485 Receipt Notices for October and November filings
Due to the substantial amount of I-485, Applications to Register Permanent Residence or Adjust Status and I-140, Immigrant Petitions for Alien Worker, filed with USCIS in October and November, there currently are longer than normal delays in the issuance of receipt notices.
Immigration attorneys nationwide report USCIS is taking upwards of 8+ weeks to issue and mail receipt notices to applicants and their attorneys for adjustment of status cases.
January Visa Bulletin
Each month, the U.S. Department of State (DOS) publishes the Visa Bulletin, listing all "preference" categories and states whether or not a backlog exists for each one. In addition, the categories are folded into two charts: “Final Action” chart and a “Dates for Filing” chart for Family-Based immigration and Employment-Based immigration.
For January 2021, USCIS has indicated that for Employment-Based immigration, the “Final Action” chart should be used in establishing eligibility to file the I-485 Adjustment of Status petitions. This means that those who filed an Immigrant Petition [Form I-140] on or before the date given in the Visa Bulletin are able to file for permanent resident status [Form I-485].
In January, the EB-1 preference category on the Final Action Chart for all countries other than China and India is “current.” This means the I-485 applications may be filed immediately with the Form I-140. China and India remain backlogged to September 1, 2019.
The EB-2 preference category remains “current” for all countries other than China and India which means that individuals in these categories may immediately file I-485 applications. China and India remain backlogged to June 1, 2016 and October 8, 2009, respectively.
The EB-3 preference category is also “current” for all countries other than China and India which means that individuals in these categories may also immediately file Form I-485 applications. China and India stand at December 15, 2017 and March 22, 2010, respectively.
If you have questions about planning, please feel free to reach out and schedule a consultation with one of the attorneys (info@iandoli.com).
H-1B Planning Season is Upon Us with a New Process and New Deadlines
H-1B sponsorship is offered by U. S. employers for Foreign Nationals working for those employers in Specialty Occupations which require at least a bachelor’s degree (or the equivalent in education and/or experience). Approved H-1B employees can work for the sponsoring employer for 3 years in the first instance.
USCIS has not announced any changes to the new e-registration tool this upcoming H-1B cap season. As such, employers seeking to file H-1B cap-subject petitions for the fiscal year 2022 cap, including those eligible for the advanced degree exemption, must first electronically register. USCIS will open an initial registration period from March 1 through March 20, 2021. The H-1B random lottery process, if needed, will then be run on those electronic registrations. Only those with selected registrations will be eligible to file H-1B cap-subject petitions between April 2, and June 30, 2021. Given the timeline for e-registration, it is now the best time for employers to decide whether they will file H-1B petitions.
Please feel free to contact the attorneys of Iandoli, Desai & Cronin now with your questions about potential H-1B sponsorship.
I-9 Flexibility Extended
The Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced another extension of the flexibility in complying with requirements related to Form I-9, Employment Eligibility Verification. Because of ongoing precautions related to COVID-19, DHS has extended this policy until January 31, 2021.
This provision only applies to employers and workplaces that are operating remotely.
If there are employees physically present at a work location, no exceptions are being implemented at this time for in-person verification of identity and employment eligibility documentation for Form I-9, Employment Eligibility Verification.
Health Alert for Air Travelers from United Kingdom
Effective on December 28, 2020, air passengers arriving from the United Kingdom (U.K.) must present a negative COVID test, via PCR or Antigen test, no more than 72 hours before departure from the U.K. to the United States.
Passengers are required to get a viral test (i.e., a test for current infection) within the 3 days before their flight from the U.K. to the U.S. departs, and provide written documentation of their laboratory test result (in hard copy or electronic) to the airline. Airlines must confirm the negative test result for all passengers before they board. If a passenger chooses not to take a test, the airline must deny boarding to the passenger.
USCIS Provides Updates on Application Support Centers
In a December 29, 2020 Stakeholder Message, U.S. Citizenship and Immigration Services (USCIS) updated stakeholders on the status of appointments at Application Support Centers (ASCs) that collect biometrics for certain kinds of applications, including Form I-539 applications for change of status, extension of stay.
The notice states that "By late October, we increased ASC operations to approximately 65 percent of pre-COVID levels," but that delays in appointment scheduling and rescheduling remain and that "The wait time for appointments will vary geographically, based on capacity and varying demand at individual ASC locations."
Visa Restrictions Extended Through March
President Trump issued a proclamation continuing Proclamations 10014 and 10052, which suspended the entry of certain immigrants and nonimmigrants into the United States in light of the COVID-19 pandemic. The proclamations have been continued until March 31, 2021.
The suspension applies to the entry of immigrants who were outside the US at the time of the April 2020 proclamation as well as to the issuance of nonimmigrant visas including, H-1B visas, H-2B visas, H-4 visas, L-1 visas and certain J-1 visas. If you have questions about a specific visa, please feel free to reach out and schedule a consultation with one of the attorneys (info@iandoli.com).
Extension of Validity of Certain Forms I-797 Due to Continued Employment Authorization Document (EAD) Delays
USCIS previously issued a notice indicating that certain Forms I-797, Notice of Action, are acceptable for Form I-9, Employment Eligibility Verification, through Dec. 1, 2020. DHS is now extending the validity of these Forms I-797. To complete Form I-9, new employees and current employees requiring reverification who are waiting for their EAD may continue to present a Form I-797 described below through Feb. 1, 2021 as a List C #7 document issued by the Department of Homeland Security that establishes employment authorization, even though the notice states it is not evidence of employment authorization.
For the notice to be acceptable, it must include a Notice Date from Dec. 1, 2019, through and including Aug. 20, 2020, and indicate that USCIS has approved the employee’s Form I-765, Application for Employment Authorization. The last day that both new and current employees may present this notice to complete Form I-9 is Feb. 1, 2021. New employees will also need to present an acceptable List B identity document.
Employers who entered a Dec. 1, 2020 expiration date on Form I-9 for employees who presented this Form I-797 as a new hire or for reverification as directed in the original notification must update their employees’ forms to document continued employment authorization. To do so, write Employment Authorization Ext Until 02/01/2021 in the Additional Information box in Section 2 of Form I-9.
By Feb. 1, 2021, employers must reverify employees who presented this Form I-797 as a List C document. These employees must present new evidence of employment authorization -- either their new EAD or any other acceptable documentation they choose -- from either List A or List C.
District Court protects OPT in Washtech case again
A U.S. labor organization, Washington Alliance of Technical Workers Union (WashTech) has filed a lawsuit, contending that OPT harms U.S. workers and that the Department of Homeland Security (DHS) did not have statutory authority to grant work authorization to F-1 students for Optional Practical Training (OPT). This is a lawsuit that has been in litigation in various stages for over 10 years, and in a July 2019 ruling, the court determined that the case could proceed. After a long history in the courts, in a November 30, 2020 order, the district court denied Washtech motions of summary judgement and granted Department of Justice cross motions for summary judgement. This order includes the statement, “It is further ORDERED that this Order is not a final Order subject to appeal.” If the court's eventual final judgement is as expected consistent with the order on the motions and goes against Washtech, Washtech could file a notice of appeal within 60 days of the final judgement.
Iandoli Desai & Cronin will continue to monitor the situation and provide updates when available.
District Court sets aside the Department of Homeland Security and Department of Labor interim final rules on H-1B
On December 1, 2020, the U.S. District Court for the Northern District of California set aside the Department of Homeland Security (DHS) interim final rule, Strengthening the H-1B Nonimmigrant Visa Classification Program, and the Department of Labor (DOL) interim final rule, Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States. (Chamber of Commerce, et al., v. DHS, et al., 12/1/20). These proposed rules, discussed in last month’s newsletter, noted “These rules are extraordinary: If left unchecked, they would sever the employment relationship of hundreds of thousands of existing employees in the United States, and they would virtually foreclose the hiring of new individuals via the H-1B program. They would also gut EB-2 and EB-3 immigrant visas, which provide for employment-based permanent residence in the United States.”