Immigration Quick Takes — April 2021

1. Fiscal Year 2022 H-1B Cap Lottery Summary 

USCIS announced on March 30th that they had received enough electronic registrations during the initial registration period to reach the fiscal year 2022 H-1B cap and had notified all prospective petitioners with selected registrations. Each year there are 65,000 regular H-1B visas available and an additional 20,000 H-1B visas reserved for individuals with U.S. Master’s degrees. USCIS has not yet released information about how many registrations were submitted.

According to USCIS, all registrations submitted will now show one of the following statuses in employer and legal representative accounts:

  • Selected – the registration was selected, and the sponsoring employer may submit an H-1B petition on the individual’s behalf before June 30
  • Submitted – the registration was not selected but will remain open until the annual H-1B cap is met through approved H-1B petitions.
  • Denied – USCIS determined that duplicate registrations were submitted for an individual and denied all registrations for that individual.
  • Invalidated – Failed Payment – The payment for the registration was declined or invalid. The registration was not included in the lottery selection.

With the lottery completed, as of April 1st USCIS has begun accepting fiscal year 2022 cap-subject H-1B petitions for registrations that were selected. They will continue accepting petitions for at least 90 days, until June 30th. Although USCIS released a new Form I-129 on March 10, 2021, they will accept prior edition dates as well as the new form, until July 1, 2021. USCIS has not announced any suspension of Premium Processing service for FY 2022 cap-subject H-1B petitions.

If you have not already, contact your Parker Gallini attorney for next steps on selected registrations. Initial reports suggest high numbers of registrations for fiscal year 2022 and lower selection rates than in last year’s lottery. If you have employees who were not selected, be sure to sign up for Parker Gallini’s webinar on May 4th, which will include more information on alternatives to cap-subject H-1Bs for employees who were not selected in the lottery.

2. Public Charge Rule Vacated 

The much-anticipated end to the 2019 “Inadmissibility on Public Charge Grounds” rule (Public Charge Final Rule) promulgated by the Trump Administration came on March 9th when the U.S. Court of Appeals for the 7th Circuit lifted its stay of the U.S. District Court for the Northern District of Illinois’ order vacating the rule. This move, which reimplemented a nationwide injunction of the Public Charge Final Rule, came after the Biden Administration’s Department of Justice announced that they would no longer be defending the controversial rule in court.

On March 11th, the Department of Homeland Security (DHS) filed a rule with the Federal Register to formally remove the Public Charge Rule from the Code of Federal Regulations.  DHS also submitted a notice that same day withdrawing the October 2, 2020 proposed rule related to the Form I-864 Affidavit of Support, which would have changed evidentiary requirements for immigrant sponsorship and made that process more burdensome for sponsors. DHS also announced that the public charge admissibility policy in place prior to the 2019 public charge rule is back in effect. This policy limits the basis for public charge findings significantly, allowing for the receipt of several important non-cash benefits including certain housing, food, and health care benefits. 

Regarding the changes, Secretary of Homeland Security Alejandro N. Mayorkas stated, “DHS closed the book on the public charge rule…DHS is committed to implementing reforms that improve our immigration system and reduce unnecessary barriers to legal immigration.

As a result of these changes, USCIS is no longer considering Public Charge information submitted to meet the requirements of the vacated Public Charge, including financial information submitted with Form I-944, Declaration of Self-Sufficiency. New petitions and applications should be submitted without providing that information. Applicants and petitioners who received a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) requesting information related solely to the Public Charge Final rule do not need to respond to those requests, although they do need to respond to other aspects of any RFE or NOID.

Effective March 9th, applicants filing Form I-485 for adjustment of status no longer need to submit Form I-944, Declaration of Self-Sufficiency. In addition, USCIS published new form editions for relevant forms to remove questions related to the public charge rule. These new forms have a March 10, 2021 edition date and include the following:

  • I-864, I-864A, I-864EZ, I-864W
  • I-539, I-539A
  • I-129CW, I-129CWR
  • I-129
  • I-485, I-485A, I-485J
  • I-912

Starting April 19, 2021, USCIS will only accept the new edition date for the above forms, with the exception of Form I-129. USCIS will accept previous editions of Form I-129 until July 1, 2021.

Reach out to your team at Parker Gallini if you have questions about these changes and whether your case is impacted.

3. Update on the Nonimmigrant Visa Ban

The Department of State announced on April 1, 2021 that Presidential Proclamation 10052 (“the Proclamation”) expired on March 31, 2021. This Proclamation halted issuance visas for certain H-1B, H-2B, J, and L nonimmigrants. Effective April 1st, the Department of State has resumed processing visas for individuals affected by the Proclamation. Applicants who were denied visas because of the Proclamation may reapply but will need to submit a new application and pay a new application fee.

U.S. Consulates and Embassies worldwide are reopening on a post-by-post basis and will continue to have limited visa appointment availability for some time. Consular posts are prioritizing U.S. citizen services first and are working towards a full resumption of routine visa services. Expect delays in scheduling appointments.

Contact your Parker Gallini attorney with any questions about how this impacts specific employees and their travel plans.

4. Visa Bulletin Updates and “Chats with Charlie”

The April Visa Bulletin was published in mid-March, in line with recent trends towards earlier publication of the monthly Visa Bulletin under the Biden Administration. For April, the employment-based first preference category is current across all countries of chargeability, including India and China. See full bulletin here.

The U.S. Department of State (DOS) announced the return of Charlie Oppenheim, Chief of the Visa Control and Reporting Division, to the public eye. The DOS will be hosting monthly “Chats with Charlie” as livestreams on the DOS YouTube channel. These chats will address pre-submitted and real-time questions regarding the visa bulletin and predicted trends. Recordings of the livestream and can be watched at a later date on the DOS YouTube channel, including the April Visa Bulletin review, which is currently available. Key predictions from the April Visa Bulletin include the following:

  • The EB-1 category should remain current for all countries for the remainder of the fiscal year, which runs through September 30, 2021.
  • The COVID-19 pandemic continues to impact visa issuance, particularly in the family-based categories. As a result, approximately 135,000 unused family-based visas will likely be added to employment-based visa preference categories, for a total of approximately 275,000 employment-based visas available in fiscal year 2022.
  • EB-2 and EB-3 priority dates for India and China should advance rapidly beginning in May 2021 and potentially continuing into fiscal year 2022.

Look for more updates on movement in the May Visa Bulletin soon or reach out to your Parker Gallini team with specific questions.

Posted in Immigration Law

The People Strike Back: USCIS Sued Over “Extraordinary Processing Delays” for H-4 / 
L-2 Extensions and EADs

AAIL lawsuit

Frustrated by lengthy delays that can run for 18 months or more, on March 22, 2021 the American Immigration Lawyers Association (“AILA”) filed a class action lawsuit against the U.S. Citizenship and Immigration Services (“USCIS”) to force the government agency to speed up processing of applications for the dependents of H-1B and L-1 workers. Until former President Trump’s “Buy American” Executive Order, these applications had traditionally been adjudicated at the same time as the principal worker’s underlying H-1B or L-1 petition.  However, because of its interpretation of Trump’s Executive Order, USCIS added additional measures to the processing of these cases that have caused delays not previously seen before.  

The impact of the delays can be quite severe to affected spouses.  For example, most states tie a foreign national’s driver’s license validity to a foreign national’s approved period of admission.   Since applications cannot be filed more than the 6 months in advance of the expiration of a foreign national’s status and dependent applications are not eligible for premium processing service, if processing times exceed 6 months (which is frequently the case) then it is impossible to avoid a lapse in the foreign national’s ability to drive.  

Furthermore, since the Employment Authorization Documents (“EADs”) that are issued to H-4 and L-2 spouses are not eligible for the automatic 180-day extension of their employment authorization that is provided to other categories when a renewal application is timely filed, a delay in processing of over 6 months also guarantees that these spouses, who are often highly educated, have periods where they are unable to work.

The lawsuit details several ways in which the Trump administration added unnecessary additional steps to the adjudication of these applications that has resulted in processing times doubling or tripling.  It sets the following classes:

H-4 / L-2 class eligibility

The primary relief requested by AILA is that USCIS promptly adjudicate any related filing within 7 days of a foreign national becoming a class member.  It also is requesting that L-2 spouses no longer be required to apply for an EAD and instead by employment authorized merely by virtue of being the spouse of an L-1 worker.

This is an important step in attempting to undo some of the real harm caused by former President Trump’s policies, and we will keep you informed on any important developments.

Posted in Uncategorized

DOL Further Delays Implementation of Prevailing Wage Rules Impacting Immigration

DOL websiteIn the last days of the Trump administration, the US Department of Labor (DOL) published a final rule entitled “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States,” scheduling the rule to take effect on March 15, 2021 with adjustments to prevailing wage levels beginning on July 1, 2021. The final rule built on an interim final rule initially published and enacted in October 2020, which federal courts struck down in December 2020 in response to lawsuits filed by numerous business and universities led by the US Chamber of Commerce. The final rule changed the computation of prevailing wage levels, effectively raising salaries by an average of 25% for all occupations and wage levels in the Occupational Employment Statistics (OES) wage survey administered by the Bureau of Labor Statistics and impacting prevailing wage requirements for nonimmigrant sponsorship in the H-1B, H-1B1, and E-3 categories and for PERM-based immigrant visa sponsorship. 

On January 20, 2021, the published final rule became subject to the “Regulatory Freeze Pending Review” memorandum from President Biden’s Chief of Staff, delaying the implementation of the final rule for 60 days pending administrative review. Subsequently, on February 1, 2021, the DOL published a notice officially proposing to delay the effective date of the final rule until May 14, 2021, which was confirmed in a final rule published on March 12, 2021. On February 19, 2021, the businesses and universities who initially challenged the interim final rule updated their lawsuit to challenge the final rule; this litigation is ongoing. On March 22, 2021, the DOL proposed a further 18-month delay of the final rule, until November 14, 2022, with adjustments to prevailing wage levels beginning on January 1, 2023.  The DOL is accepting public comments on the proposed delay through April 21, 2021. Assuming the proposed delay moves forward, the DOL may revise the rule further or withdraw it entirely before the new effective date in November 2022. 

While the Trump administration justified the final rule by arguing that it would ensure that the employment of foreign national workers in the US “does not adversely affect the wages and job opportunities of US workers,” many experts agree that making the US employment of foreign workers more costly is far more likely to result in companies increasing overseas hiring instead of hiring US workers and slowing the migration of foreign talent and investment dollars to the US. Existing H-1B rules already require employers to pay temporary foreign workers the greater of the in-house wages the employer pays to other workers in the same position with similar experience and qualifications or the prevailing wage for the occupational classification in the area of employment, and the H-1B1 and E-3 categories share similar requirements. Most often, employers determine the appropriate prevailing wage for the H-1B, H-1B1, and E-3 categories from OES data. When sponsoring a foreign worker for permanent residence in the US in the EB-2 and EB-3 categories, an employer must obtain a prevailing wage determination from the DOL, which relies on OES wages absent an applicable wage survey, collective bargaining agreement or prevailing wage law. These existing rules allow US employers to hire skilled foreign workers where needed, while still offering robust protections for US workers’ jobs and wages.

Now, the DOL is engaged in a comprehensive review of the prevailing wage system, recently publishing a Request for Information (RFI) inviting interested parties to provide information on data sources and methodologies for determining prevailing wages in the H-1B, H-1B1, E-3, and PERM contexts. Specifically, the DOL is soliciting “written narratives…, quantitative or qualitative data analysis, reports or studies, and other estimation techniques and methodologies, whether published or unpublished, relevant to determining wage values or levels within a specific occupational wage distribution and geographic area,” which can be submitted through June 1, 2021. Likely, the DOL’s next step will be a new round of proposed rulemaking to revise the delayed final rule, which will also be open to public comment. 

Contact your Parker Gallini attorney with any questions about the status of changes to the prevailing wage system.

Posted in Immigration Law

Post-H-1B Lottery Webinar: Tuesday, May 4

Date: Tuesday, May 4, 2021

Please join us for a webinar to discuss the post H-1B cap lottery landscape and the impact of the latest immigration policy developments on your workers and your business.

Time: 11:00 a.m. for approximately 1 hour

Registration Link: Register for this webinar on Zoom


Host: Parker Gallini LLP cofounder Donald W. Parker will lead the panelists and question/answer period in a live webinar featuring the following presentations.


1. Alternatives to the H-1B Visa in an H-1B Cap Limited World
Presenter: Attorney Molli Freeman-Lynde


2. F-1 Student Employment Authorization and the Increasingly Complex and Risky Use of CPT
Presenter: Attorney Victoria Morte


3. Hot Topics – Recent Developments in Business Immigration
Covers International Travel and Visa Applications and Biden Administration Initiatives
Presenter: Attorney Grant W. Godfrey


Each presentation will run approximately 15 minutes. Participants will be able to submit questions to the host by chat, and the last 15-20 minutes will be devoted to questions and answers. We look forward to sharing information, answering questions, and hearing about your needs and concerns. Please join us!

Register here for the Zoom webinar.

Questions? Please contact Attorney Victoria Morte at VMorte@ParkerGallini.com or (781) 810-8990.

Posted in Immigration Law

H-1B Visa Lottery

Each year, approximately 85,000 new H-1B visas become available to US employers seeking to sponsor foreign national workers in “specialty occupation” positions across all industries. These new H-1B visas go into effect annually at the start of the federal government’s next fiscal year on October 1st, and employers are first able to file for one of these visas up to six months in advance of this effective date, on April 1st.

Only “specialty occupation” positions are eligible for H-1B sponsorship. A specialty occupation position is one that requires a minimum of a baccalaureate degree in a particular specialty field directly related to the position’s duties. Over the years, the demand for H-1B visas has vastly outstripped the supply, resulting in the establishment of a lottery system to fairly allocate the visas. Beginning with the March 2020 H-1B Cap lottery for Fiscal Year 2021 H-1Bs, employers are required to register sponsored foreign national workers in a computer-based lottery run by the US Citizenship and Immigration Services (USCIS). USCIS selects a sufficient number of these registrations to meet the 85,000 visa cap using the lottery system before beginning to accept petitions for selected registrations on April 1st.

USCIS allocates new H-1B visas in two major tranches: the Master’s Cap and the Regular Cap. 20,000 of the available H-1B visas are reserved under the Master’s Cap for foreign nationals who have earned a Master’s (or higher) degree in the US, and an additional 58,200 visas are available under the Regular Cap for foreign nationals who qualify generally for the H-1B classification by having a US or foreign Bachelor’s degree or a combination of education and experience that is equivalent to a US Bachelor’s degree or higher. USCIS reserves the remaining 6,800 visas for the treaty-based H1B1 visa category available to citizens of Singapore (5,400) and Chile (1,400). H1B1 visas have historically been under-utilized and remain available throughout the fiscal year. Unused visas reserved for H-1B1s are added back to the next year’s quota.

Foreign national workers who are subject to the H-1B cap are those who have not previously held H-1B status and who have not been counted against the H-1B cap within the past six years. This typically includes:

  • Workers in F-1 student status who will be reaching the end of their OPT/STEM employment authorization in the next year or who are in the final stages of degree completion
  • Workers in J-1 scholar or researcher status
  • Workers in other nonimmigrant statuses that present intent or timing challenges for green card sponsorship (TN, H1B1, L-1 from countries subject to Immigrant Visa backlogs, and others)
  • Workers who are currently outside of the U.S.
  • Workers who have been employed in H-1B status with “Cap-exempt” institutions or organizations, such as universities, related or affiliated non-profit entities, nonprofit research organizations, and governmental research organizations.

A foreign national’s eligibility for H-1B status is not a prerequisite of registration for the H-1B lottery in March. Eligibility must be established at the time of filing the H-1B petition. Once a registration is selected in the lottery on April 1st, the sponsoring employer has 90 days to file an H-1B visa petition on behalf of the foreign national worker. Practically, this means that if an employer is sponsoring a worker in the Master’s Cap, then the worker must complete the Master’s degree (or a higher degree) on or before the date that the H-1B visa petition is filed – which, under the 90 day rule, can be as late as the end of June – in order for the H-1B petition to be approvable. If the worker will not have the Master’s (or higher) degree by the time that the H-1B petition must be filed, then they would have to be registered for an H-1B in the Regular Cap lottery based on completion of a foreign or US Bachelor’s degree or its equivalent. In the rare case that an employer is sponsoring a foreign national worker who is completing Bachelor’s-level studies, the sponsored worker must similarly complete all degree requirements by the time of filing the H-1B petition, within 90 days of April 1st, to qualify for H-1B status under the Regular Cap.

The lottery process is run in two parts. The first selects enough H-1B registrations to satisfy the Regular Cap from a pool of both Regular and Master’s Cap H-1B registrations. Then, USCIS runs a second lottery including only those H-1B registrations for foreign nationals with a US-earned Master’s or higher degree who were not selected in the first lottery. Because sponsored foreign nationals who have earned a US Master’s degree can qualify for selection under both the Master’s and Regular Caps, they have a higher likelihood of selection in the H-1B lottery overall.

An employer may submit only one registration for each foreign national worker – if an employer submits more than one registration for the same worker, the USCIS will reject all registrations for that worker as duplicates. USCIS requires the following information for each electronic registration:

  1. The sponsoring employer’s name, address, and EIN
  2. The sponsoring employer’s authorized representative’s name, job title, telephone, and email
  3. The sponsored foreign national worker’s name, date of birth, country of birth, country of citizenship, gender, and passport number
  4. Confirmation of whether the employee has earned (or will earn) a US Master’s (or higher) degree
  5. An electronic Form G-28 for all registrations submitted by an attorney  
    $10 registration fee for each registered employee, paid online.

USCIS does not require that employers obtain a certified Labor Condition Application (“LCA”) with the Department of Labor prior to submitting the electronic registration.

Once the electronic registration is submitted, it cannot be amended except to delete the registration of an employee. If other changes are needed, the registration will have to be deleted and a new registration resubmitted during the designated registration period.

This year, USCIS will open H-1B lottery registration from 12PM Eastern on March 9th to 12PM Eastern on March 25th. The two lotteries will be run in the last several days of March and employers will be notified by email of selected registrations by April 1st.

Contact your Parker Gallini attorney to discuss your H-1B visa issues.

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Posted in Immigration Law

Travel and Visa Application Bans and the Current State of National Interest Exception Waivers

Beginning in February of 2020, then President Trump, issued several Proclamations that banned foreign nationals from entering the United States from certain countries with high rates of COVID-19 (the “Travel Ban”) unless they quarantined in a third country not subject to the Travel Ban for at least 14 days. This Travel Ban initially applied to China and was then extended to Iran, most of western Europe (the Schengen Area) and the United Kingdom and Brazil. Recently, President Biden extended the Travel Ban to South Africa. The Travel Ban applies to travel to the U.S. on any visa and under the ESTA visa waiver program. In addition, in June of 2020, then-President Trump issued a Proclamation that banned applications for certain new H-1B, H-2B, L-1 and J-1 visas (and their dependent family members) at U.S. Consulates abroad (the “Visa Application Ban”). More information on these Proclamations can be found on our website.

international airport

While the Travel Ban has no expiration date, the Visa Application Ban is set to expire on March 31, 2021. Rumors are circulating that President Biden will end or limit both of these Bans in the near future – but for now they remain in place.

Both the Travel Ban and the Visa Application Ban include a provision allowing a visa applicant or traveler to the U.S. to request a waiver from the Ban based on the argument that their travel is in the “national interest” of the United States. There has been limited guidance from the U.S. government on how to establish eligibility for a National Interest Exception (“NIE”) waiver to the Travel Ban beyond showing that the travel is in the economic interest of the United States, will contribute directly to public health efforts amid the COVID-19 pandemic or will be in the interest of national security.

On March 2, 2021, the Biden Administration revoked earlier guidance that extended NIE waivers of the Travel Ban from the Schengen area, Ireland and the U.K. to include certain technical experts and specialists, senior-level managers and executives, treaty-traders and investors, professional athletes, and their dependents. Under the March 2nd guidance, Travel Ban NIEs for the Schengen area and the U.K. are now available only to (i) foreign students coming to the U.S. in F-1 or M-1 student visa status, (ii) travelers coming to the U.S. to provide “vital support to critical infrastructure sectors”, (iii) academics, J-1 students, and journalists who have a valid visa in the appropriate class, an ESTA authorization, or who are seeking to apply for a visa, and believe they may qualify for a National Interest Exception and (iv) travelers seeking to enter the United States for purposes related to humanitarian travel, public health and response, and national security. The Department of State’s full guidance on the existing standard for NIEs from this area is available here.

In July of 2020, the U.S. State Department outlined the grounds on which NIE waivers of the Visa Application Ban can be requested. These grounds are detailed and complex and we provide below only a brief overview of the H-1B and L-1 rules – the full text of the these rules can be found here.

The following categories of people applying for an H-1B visa may obtain an NIE waiver from the Visa Application Ban:

  • Public health or healthcare professionals or researchers who are coming to the US to alleviate the effects of the COVID pandemic or to conduct medical research into any area of substantial public health benefit.
  • People who are returning to the U.S. in H-1B visa status to resume ongoing employment in the same position and with the same employer.
  • Technical specialists, senior-level managers and other workers whose travel is necessary to facilitate the economic recovery of the U.S. provided that they evidence at least 2 of the following 5 indicators: (i) the petitioning employer has an on-going need for their services as evidenced by a certified Labor Condition Application (an initial stage in the H-1B sponsorship process) (“LCA”) filed for their position after July 20, 2020; (ii) the applicant will provide senior-level or specialty services involving vital significant and unique contributions to an employer meeting a “critical infrastructure need” defined to include chemical, communications, dams, defense industrial base, emergency services, energy, financial services, food and agriculture, government facilities, healthcare and public health, information technology, nuclear reactors, transportation, and water systems services.; (iii) the applicant will be paid a wage that exceeds the “prevailing wage” listed on their LCA by 15%; (iv) the applicant’s education, training and/or expertise demonstrate unusual expertise in their field; or (v) denial of the waiver will cause the U.S. employer financial hardship.

The following categories of people applying for an L-1A or L-1B visa may obtain an NIE waiver from the Visa Application Ban:

  • Public health or healthcare professionals or researchers who are coming to the US to alleviate the effects of the COVID pandemic or to conduct medical research into any area of substantial public health benefit.
  • People who are returning to the U.S. in L-1 visa status and who are seeking to resume ongoing employment in the same position and with the same employer.
  • In the case of an L-1A Manager/Executive visa applicant – The applicant is a senior-level executive or manager filling a critical business need with an employer that meets a “critical infrastructure need” (see this definition above) and the applicant meets 2 of the following 3 indicators: (i) the applicant is a senior-level executive or manager; (ii) the applicant has spent multiple years with the company overseas, indicating a substantial knowledge and expertise within the organization that can only be replicated by a new employee within the company following extensive training that would cause the employer financial hardship; or (iii) the applicant will fill a critical business need for a company meeting a “critical infrastructure need”.
  • In the case of an L-1B Specialized Knowledge visa applicant – The applicant is a technical expert or specialist meeting a “critical infrastructure need” as evidenced by meeting each of the following requirements: (i) the applicant will provide significant and unique contributions to the petitioning company; (ii) the applicant’s specialized knowledge is related to a “critical infrastructure need”; and (iii) the applicant has spent multiple years with the company overseas, indicating a substantial knowledge and expertise within the organization that can only be replicated by a new employee within the company following extensive training that would cause the employer financial hardship.

Each U.S. Consulate processes NIE waivers of the Travel Ban and the Visa Application Ban differently. Most Consulates have specific rules for how to submit the NIE waiver application and what should accompany it which are described in the Consulate web site. While Parker Gallini has processed a number of these waivers and our general experience suggests that Consular Officers are applying the rules liberally, be prepared for significant delays. U.S. Consulates continue to be inundated by these requests and a response to a waiver request can take as long as 30 to 60 days.

Questions about the travel bans, visa applications and national interest exception waivers? Reach out to a Parker Gallini business immigration attorney.

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Posted in Immigration Law

Immigrant Visa Ban Revoked

On February 24th, President Biden revoked Presidential Proclamation 10014, which suspended the entry of Immigrants and, by extension, the issuance of Immigrant Visas at US Consulates and Embassies worldwide. By Proclamation, President Biden confirmed that the prolonged suspension of immigration “does not advance the interests of the United States. To the contrary, it harms the United States, including by preventing certain family members of United States citizens and lawful permanent residents from joining their families here. It also harms industries in the United States that utilize talent from around the world.”

Regrettably, following the many months that US immigration was restricted, already-significant global backlogs grew. In a briefing, the US Department of State (DOS) confirmed that approximately 75,000 immigrant visa cases were pending at the National Visa Center and ready for interview scheduling in January 2020. A year later, as of February 2021, the DOS confirmed 473,000 cases are pending at the National Visa Center. These case counts do not include cases already at embassies and consulates that have not yet been interviewed, applicants still gathering the necessary documents before they can be interviewed, or petitions awaiting USCIS approval.

Based on this report, Immigrant Visa applicants should expect significant processing delays in the coming months. We will continue to monitor this developing situation and will provide updates as they become available.

Posted in Immigration Law

Immigration Quick Takes – March 2021

> USCIS Reverts to Naturalization Civics Test Used Since 2008

Immigration law requires that most foreign nationals seeking to naturalize as U.S. citizens demonstrate a knowledge and understanding of the history, and of the principles and form of government, of the United States by passing a Civics test as part of the naturalization interview process.  In the waning days of the Trump Presidency, USCIS announced that it was implementing a new test that was longer and more difficult than the test that had been used since 2008.  On February 23, 2021, the Biden Administration announced that it was shelving the 2020 Civics test and that anyone who filed to naturalize between December 1, 2020 and February 28, 2021 would have the option of utilizing either the 2020 or 2008 test as an accommodation for those who may have started studying the new material.  Any naturalization applicant who filed from March 1, 2021 onward will be required to take the 2008 Civics test, which is comprised of 100 possible questions, and the applicant must correctly answer six out of 10 questions asked in order to pass.  More information can be found here.

> CDC Now Requires Proof of Negative COVID-19 Test or Recovery for Air Passengers Arriving in U.S.

Effective January 26, 2021 the CDC has ordered that all air passengers who are arriving in the United States from a foreign country must have been tested for COVID-19 no more than 72 hours before the flight departs the foreign territory and present the negative result or documentation of having recovered from COVID-19 to the airline before boarding the flight.  More information about the requirements and exemptions can be found in the Order.  To date, the Order has not been updated to allow passengers to present evidence of vaccination in lieu of a negative test or proof of recovery. It is also important to note that while the CDC states that the COVID-19 test must have been taken within 72 hours of the flight departing the foreign territory, some states (e.g. Massachusetts) require that any person arriving from another state have been tested within 72 hours of entering the state in order to avoid quarantine requirements.  As a result, anyone who is returning from international travel should be sure to review not only the CDC guidance, but also the guidance of any state that they will be entering to ensure that they remain compliant with all quarantine or notice requirements.

> Visa Bulletin Updates: March

Each month, the State Department publishes the Visa Bulletin, which informs foreign nationals who are seeking a Green Card (an immigrant visa) who is or is not eligible to file that month.   Currently, only individuals who were born in India or Mainland-China are subjected to backlogs.  Over the past several months, we have seen slow, but steady, forward movement of the “Final Action” date for the EB-1, EB-2 and EB-3 categories, indicating that Green Cards are currently available for applicants whose priority dates are current:

> 2019 Public Charge Rule Vacated Nationwide

On March 9th the Department of Homeland Security announced that the federal government will stop defending the 2019 public charge rule, including dismissing pending appeals of judicial decisions that invalidated or enjoined the rule over the last year. Following dismissals of the ongoing lawsuits, the 2019 Public Charge rule is vacated nationwide, and the US Citizenship and Immigration Services will return to earlier field guidance policy on public charge inadmissibility, which narrowly limits the scope of public charge findings and allows for the receipt of important non-cash benefits as needed.

For more information on any of these issues, please contact a Parker Gallini immigration attorney.

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Posted in Immigration Law

Post-H-1B Webinar — Save the Date

Join us for a post-H-1B lottery webinar on hot topics in business immigration on Tuesday, May 4. We will cover the ongoing immigration policy changes impacting your workers and your business and help you plan for your workforce’s upcoming needs. We will share sign up details in next month’s newsletter.

Your Parker Gallini attorneys are available to answer your immigration related questions. Contact us at (781) 810-8990.

Posted in Immigration Law

New Regulation Replaces H-1B Cap Lottery Process with Selection Process Based on Wage Level

By Immigration Attorneys Donald Parker and Victoria Morte

In 2020, the USCIS revised the lottery process, conducting the H-1B Lottery through an online registration system.  Sponsoring employers registered foreign nationals for the lottery online in the first three weeks of March.  In the last week of March, the USCIS first conducted a random lottery including all registered foreign nationals, selecting enough registrations to meet the standard cap, and then conducted a second lottery from the remaining registered foreign nationals who earned a U.S. Master’s degree or higher and who were not selected in the first lottery to meet the advanced degree cap.

H-1B “Specialty Occupation” visas are available in a limited number each year – 20,000 to foreign nationals who have earned a U.S. Master’s degree or higher (the “advanced degree cap”) and 58,200 visas to other foreign nationals whose position and credentials qualify them for an H-1B visa (the “standard cap”).  Because approximately 200,000 foreign nationals apply for the limited number of H-1B visas annually, the U.S. Citizenship & Immigration Service (USCIS) determines which petitions will be processed for an H-1B visa through a lottery system held at the end of March or early April of each calendar year.  H-1B Petitions selected in the lottery are not guaranteed an approval and must be adjudicated by the USCIS.  Petitions that are selected and then approved have an effective date on or after October 1st of the same calendar year.

On January 8, 2021, the U.S. Department of Homeland Security again revised the H-1B selection process, publishing a final Regulation that eliminates the random lottery selection and replaces it with a selection process based on the Department of Labor’s Occupational Employment Statistics (OES) four-level wage system.  This Regulation will go into effect 60 days after its publication, on March 9, 2021, and is intended to apply to the H-1B selection process for this year’s lottery.  

The new H-1B selection system will operate as follows:

  • As has been the case in the past, the first selection process will be with respect to the 58,200 visas available in the standard cap – USCIS will first consider all registered foreign nationals, selecting enough petitions to satisfy the standard cap.  After that is completed, USCIS will conduct a second selection process with respect to  the 20,000 H-1B visas available under the advanced degree cap to foreign nationals who have earned a U.S. Master’s degree or higher and who were not selected in the first process. 
  • Within each of these groups, USCIS will select registrations based on the highest OES prevailing wage level that the offered salary equals or exceeds, starting with registrations that meet or exceed level IV and then selecting cases in descending order from OES wage levels III, then II, and then I.  As an example, in the first allocation for the standard cap, all registrations where the foreign national’s offered wage equals or exceeds an OES Level IV wage in their occupational category will be selected first.  The next registrations selected will be those where the offered wage equals or exceeds a Level III wage, and on through Level II and Level I wages, until all 58,200 visas have been allocated.
  • Once the number of registrations at an OES wage level exceeds the number of H-1B cap slots available, the USCIS will use a computerized lottery system to select registrations that fall within this wage level.  Once USCIS selects enough registrations to exhaust the available H-1B visas under the standard cap and then the advanced degree cap, no further selections will be made.
  • Where an offered wage is lower than the OES wage level I because a private wage survey is used, USCIS will rank the registration in the same category as an OES wage level I.  
  • If the foreign national will work in multiple locations, USCIS will rank the filing according to the lowest corresponding OES wage level that the offered wage will equal or exceed.
  • Where there is no available OES prevailing wage information for the offered position, USCIS will rank the filing based on the OES wage level that corresponds to the requirements of the position.

The USCIS is currently revising its online H-1B cap registration form to request information on the OES wage level associated with the offered wage and position.  These changes will become effective upon implementation of the final rule. OES wage information provided in the H-1B registration will be compared to any H-1B petition filed in connection with that registration to ensure that the petitioning employer is adhering to the wage level it designated – filed petitions that do not will be denied.  In addition, subsequent amended petitions lowering the wage may be denied if USCIS determines that the petitioner is attempting to reduce the offered wage following selection at a higher wage level.

Note that there may be an opportunity to submit H-1B cap registrations prior to the March 9, 2021 effective date under the lottery system that was used in 2020.  The final Regulation states that registrations “filed prior to the effective date of this final rule will be based on the regulatory requirements in place at the time the registration”.  Since the new Regulation won’t go into effect until March 9th, and in 2020, the H-1B registration period opened on March 1st it is possible that H-1B registrations submitted in the first week of March will be exempt from the new Regulation.   

Additionally, whether this new Regulation will apply at all to the H-1B cap selection process this March is unclear.  The incoming Biden Administration may place this Regulation – along with other regulations finalized during the last days of the Trump Administration – on hold in order to review its contents and determine whether it should take effect.  It is also possible that the Regulation will be challenged in federal court and struck down on several grounds.  If the rule is ultimately implemented for the FY 2022 cap season, we can expect that the USCIS will issue instructions on how it will implement the rule in the up-coming H-1B registration system.  

We will closely monitor developments in this area and provide updates on this blog and the Parker Gallini LLP web site.

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