It’s been a very busy fall and I have fallen behind in my correspondence, though I have spoken to many of you directly as issues have developed. Let me take this opportunity to bring you up to date and to wish everyone happy holidays.
With the October Visa Bulletin, Indians with priority dates between 2010 and Jan 2015 became eligible for adjustment of status. This news was not made public until the very end of September. We filed over 200 adjustment of status applications in October for many Indian foreign nationals with these old priority dates. This was very exciting for the individuals and I thank you for all the assistance with frantic document collection, signatures, last minute conference calls, etc.
What does this mean going forward for these employees? For many, their priority dates were eligible in the EB3 category only. This meant filing new I-140’s in EB3 based on the earlier approved PERM applications. Once the new I-140 is approved and their I-485 (adjustment application) is pending at least 180 days, they become portable. This means they can move to a job that is the “same or similar” in nature without having to do a new PERM and I-140. Their initial EB2 I-140’s remain valid if the movement of visa numbers ultimately makes EB2 more advantageous. They will receive a work/travel card independent of their H’s and L’s. It is preferable, however, to maintain their underlying nonimmigrant status until they become permanent residents to avoid any possible gaps in status or authorization to work.
Since my last update, the government enacted two new rules: a prevailing wage rule that unrealistically inflated wages, and a new H1B rule complicating who qualified for this category. A court struck down both rules last week in a case led by the U.S. Chamber of Commerce. Two more suits challenging the wage rule are still pending, including one our firm filed with two others. I discussed the wage rule with several of you and we have been using wage surveys for H1B transfers for the past 2 months to avoid the inflated wages. The surveys are no longer necessary. The Department of Labor will reset the OES Wage library to reflect the pre-October 8th wages and begin accepting LCA’s using those wages as of December 9th.
To prevent USCIS from the furloughs feared at the end of the summer, Congress passed legislation to expand premium processing and requiring that DHS deposit the funds directly into the USCIS operating account. Over the past 4 years, DHS has been diverting USCIS fees to ICE enforcement actions (and the wall) that Congress had refused to fund. The premium processing fee for I-129’s (H1B’s, TN’s, L’s, etc) and I-140 Petitions increased from $1440 to $2500 at the end of September. In addition, USCIS has been authorized to expand the use of premium processing to other applications including EAD cards. This will benefit many of your H4 and L2 employees who have suffered gaps in their work authorization the past few years due to unpredictably long processing times. I-140’s for multinational managers and national interest waivers will also become eligible for premium processing. We are still waiting for these new premium processing fees to be announced and go into effect.
The April Immigrant Visa Ban and the June Nonimmigrant Visa Ban are set to expire at the end of the year. Both have renewal provisions so we are waiting to see what the administration will do. In any case, it’s likely the Biden administration will get rid of both by the end of January.
The travel bans prohibiting travel directly to the U.S. from Brazil, China, the UK, Iran and the Schengen countries are still in place unless the traveler has first applied for and received a National Interest Exception waiver. Rumor has it the administration may lift the Schengen travel ban soon. In the meantime, travelers from these countries must go to a non-banned country to quarantine for two weeks before flying to the U.S. The more challenging problem at this point is consular appointments. The majority of US consulates abroad are still working reduced hours with reduced staff and are limiting appointments to visa applicants who can meet the emergency scheduling criteria. With COVID numbers expected to spike in the next couple months before the vaccine can be widely distributed, it is likely consulates will be slow to reopen and we will continue to struggle with visa appointments. As many of you know, this has made it extremely difficult to transfer new L1’s to the U.S. this year.
As earlier reported, the Supreme Court preserved the DACA program over the summer. USCIS has been dragging its feet and this past week, a federal court ordered USCIS to put an announcement on its website no later than today letting the public know the program had been restored to its original form and that it will now accept new DACA applications and advance parole applications. Since 2017, USCIS has only accepted extensions for those that already had DACA benefits.
Siskind Susser joined with two of our ABIL colleague firms, Kuck Baxter in Atlanta and Joseph Hall in Denver, this year to bring several successful lawsuits against the government.
Aker v. Trump: This suit was filed to preserve visas for winners of the Diversity (or Green Card) Lottery. Regulations require that all DV lottery winners be issued visas no later than September 30th, the end of the government’s fiscal year. With COVID-related consular closures and the President’s immigrant visa ban, this would have been impossible. The court order the State Department to set aside 9000+ visas for processing after September 30.
Milligan v. Pompeo: This suit challenged State Department delays in adjudicating K1 fiancé visas. The court ordered the State Department to issue visas for the fiancés of U.S. citizens and the agency cannot use the COVID entry bans as an excuse to refuse to issue a visa.
Purdue University v. Scalia: This is the case I referenced above challenging the Department of Labor’s October 8th rule inflating the wages of H1B, E3 and PERM cases. This case is still pending but the wage rule was set aside last week by another court on the basis that DOL failed to comply with the Administrative Procedures Act when it was enacted.
Another court has preserved OPT and STEM OPT, work authorization granted to foreign students upon graduation. The plaintiffs asked the court to declare OPT unlawful. Last year, the National Association of Manufacturers, the US Chamber of Commerce, and the Information Technology Industry Council intervened. They explained to the court how important OPT is to keeping the talent pool of U.S.-educated foreign students in the U.S. 52 companies and 11 associations signed on to an amicus brief. The judge announced last week that he will be granting summary judgment (dismissing the suit and preserving OPT and STEM OPT) but his order has not yet been published. This is a huge win for American universities that have been suffering a decline in enrollment.
In October, USCIS also proposed a new method for handling the H-1B cap selection process. Instead of a random lottery, the government proposed that those earning high wages should be prioritized for selection. The public comment period closed on December 2, 2020. Right now, this change is still a proposal, but it’s possible USCIS could publish the final rule before January 20th. Although the rule is sure to be challenged in court, it’s unclear how the 2021 H-1B cap registration and selection process will work.
DHS will announce an automatic extension of Temporary Protected Status (TPS) for Honduras, El Salvador, Haiti, Nicaragua, Sudan and Nepal later this week. Work authorization for TPS holders from these countries was set to expire in January and has been extended through 10/4/2021. For I-9 purposes, companies must reference the USCIS website as USCIS has waived the need to issue new cards while this matter is being litigated. Hopefully, the Biden Administration will reverse course on TPS and the issue will be moot.
ABIL drafted the attached list of business-friendly recommendations the Biden Administration can implement quickly and without Congress. We hope to see many of these changes in the new year.
2020 has been a tumultuous year in every possible way but particularly so in the world of immigration. It has been an honor to work through it with all of you and we thank you for your confidence, support, and patience. We wish you a happy, safe, and peaceful holiday season as we look forward to a hopeful, calmer 2021.