The U.S. Department of State released the November 2020 Visa Bulletin this morning. Visa availability in the employment-based categories will basically stay the same as in October 2020. Additionally, USCIS has announced that it will accept filings based on the “Dates for Filing” chart.
On Friday, October 16, 2020, USCIS announced that it will increase the fee for premium processing from $1,440 to $2,500 starting on Monday, October 19, 2020. USCIS is implementing the portion of the Continuing Appropriations Act, 2021 & Other Extensions Act. (Pub. L. No. 116-159) that was enacted on October 1, 2020 and authorizes the agency to increase premium processing fees. Thus, any I-907 request for premium processing postmarked on or after October 19, 2020 must include the new fee amount. There is an exception for H-2B seasonal workers and R-1 religious workers in that the fee is only increasing to $1,500.00. Notably, the law enacted on October 1st also authorizes USCIS to expand premium processing to include other types of forms and applications. However, USCIS is not exercising its authority to expand the premium processing service at this time.
On September 25, 2020, the ICE published a proposed rule in the Federal Register which, among other things, eliminates admission for duration of status for F, J and I (International Media) visa holders. The comment period ends on October 26, 2020, after which the agency is required to review and consider all comments before publishing the final rule. Currently, F and J visa holders are admitted to the U.S. for their “duration of status” or the time it takes to finish their program as long as they are making “normal progress” towards the completion of the program. The new rule limits the period of admission for F and J visa holders to 2 or 4 years based on their program end date. This rule will substantially change the way DHS determines whether F or J visa holders are maintaining their status, would subject them to harsh penalties for failure to maintain status, and would require the filing of extension applications on form I-539 to extend a program end-date or apply for OPT.
In this Forbes article, Stuart Anderson provides a good summary of the USCIS and USDOL rules that will change the H-1B visa program by substantially increasing the prevailing wages for H-1B occupations and redefine “specialty occupation.”
On October 6, 2020, USCIS will be providing an advance copy of a regulation that will significantly change the definition of “Specialty Occupation” for H-1B visa purposes. The rule will narrow the definition of “specialty occupation;” require U.S. companies to “make real offers to ‘real’ employees” by closing loopholes and preventing the displacement of U.S. workers; and enhance DHS enforcement mechanisms. The rule will be published in the Federal Register on October 8, 2020 and goes into effect 60 days after publication (December 7, 2020).
On October 6, 2020, the U.S. Department of Labor published an advance copy of an interim final rule that will be published in the Federal Register on October 8, 2020 and go into effect upon publication. The rule increases the prevailing wage at each wage level across the board for all occupations for both non-immigrant visa petitions that require a prevailing wage and PERM labor certification applications.
On October 9, 2020, the U.S. Department of State provided further guidance on the federal district court injunction, stating that any J-1, H-1B, H-2B, or L-1 applicant who is either sponsored (J-1 visa holders) by, petitioned by, or whose petitioner is a member of, one of the plaintiffs in the case is no longer subject to Presidential Proclamation 10052. The plaintiffs in the case are the National Association of Manufacturers, the U.S. Chamber of Commerce, the National Retail Federation, TechNet, and Intrax, Inc.
On October 5, 2020, the U.S. Department of State (USDOS) announced that it would no longer enforce Presidential Proclamation 10052 which bars certain non-immigrant visa (NIV) holders (certain H, L, J visa holders) from entering the U.S. until the beginning of next year when scheduling emergency appointments. The USDOS stated that emergency/expedited appointments at the U.S. Consular Offices can proceed without a National Interest Exemption (NIE) for foreign nationals subject to this entry ban. Please note that foreign nationals may still be subject to other entry bans that will still require an NIE approval prior to entering the United States. Stay tuned for further updates on this important federal court decision.
On October 1, 2020, the U.S. District Court for the Northern District of California issued a preliminary injunction against the Department of Homeland Security and the U.S. Department of State’s implementation of Presidential Proclamation 10052. The injunction stops the agencies from barring certain non-immigrant visa holders (H-1B, H-2B, certain J-1 visa holders, L-1 visa holders) from entering the U.S. and orders these agencies to stop delaying the processing of these non-immigrant visas applications at the U.S. Consular Offices abroad. Unfortunately, the court limited the scope of the injunctive relief to the plaintiffs in the case (the U.S. Chamber of Commerce and a coalition of technology giants such as Apple and Google), thus the injunction does not cover everyone. We are awaiting guidance from the Department of Homeland Security and the U.S. Department of State on how they will proceed given the order.
On September 30, 2020, the Continuing Appropriations Act of 2021, was signed into law. This law funds the federal government through December 11, 2020. The bill includes provisions to help USCIS’ budget shortfall by increasing existing premium processing fees and expanding premium processing to cover additional types of cases. Even though the bill has been passed, USCIS will need to implement the new law before any changes to premium processing go into effect. Thus, at this time, there have not yet been any changes to USCIS’ premium processing service. Stay tuned…..there will be more to come!