U.S. Citizenship and Immigration Services (USCIS) recently announced that starting Oct. 13, 2021, it will only accept the 03/29/21 edition of Form I-485, Application to Register Permanent Residence or Adjust Status. Additionally, USCIS announced that applicants filing for lawful permanent resident status are now able to apply for a Social Security number (SSN) or replacement card as part of the adjustment of status application process. Previously, these individuals had to apply for a Social Security number at a Social Security office. The revised form now includes the additional questions needed to apply for an SSN or replacement card.
Following approval of Form I-485, USCIS stated that in most cases it will electronically transmit the data to the Social Security Administration. The Social Security Administration will then automatically assign an original SSN or issue a replacement card, as appropriate. The filing fee for form I-485 will not increase as a result of this change.
USCIS to provide work permits to applicants with pending bona fide U nonimmigrant petitions
The United States offers 10,000 U visas annually to immigrants who are victims of certain crimes and who aid law enforcement investigations or prosecutions. Under the current policy, approved U visas provide access to a work permit and the ability to apply for permanent residence after three years. USCIS automatically issues an Employment Authorization Document (EAD) to principal petitioners upon the approval of the Petition for U Nonimmigrant Status. However, high demand for U visas means applicants currently wait at least five years until they can receive work authorization, according to USCIS.
On Monday, June 14, USCIS provided updated guidance in its Policy Manual on employment authorization and deferred action for principal petitioners for U nonimmigrant status and qualifying family members with pending, bona fide petitioners. The guidance has been immediately implemented and applies to all Form I-918 petitions that are currently pending, or filed on or after June 14, 2021. USCIS stated that due to drastic increases in the volume of U nonimmigrant petitions and a growing backlog awaiting placement on the waiting list for final adjudication, the agency has decided to exercise its discretion under INA 214(p)(6) to conduct bona fide determinations (BFD) and provide EADs and deferred action to noncitizens with pending, bona fide petitions who meet certain discretionary standards. The new policy guidance provides that USCIS will conduct an initial review of Form I-918 and will issue Bona Fide Determination EADs and deferred action for four years to petitioners for U nonimmigrant status and qualifying family members if USCIS deems their petition “bona fide”, instead of completing a full waiting list adjudication.
For more information about this policy update, please schedule a consultation with one of the attorneys at Curray York & Associates!
Lawsuit Filed to Halt Implementation of H-1B Wage-Based Lottery Rule
On Monday, May 17, 2021, five businesses and nonprofit organizations, represented by the American Immigration Lawyers Association (AILA) and Members of AILA’s Board of Governors, filed a lawsuit against the Department of Homeland Security (DHS) to enjoin the final rule published January 8, 2021, entitled Modification of Registration Requirement for Petitioners Seeking To File Cap-Subject H-1B Petitions, which is also known as the H-1B lottery rule. The rule is a holdover from the Trump Administration; the Biden Administration’s DHS announced it would delay the rule’s effective date until December 31, 2021, but it has not yet announced plans to rescind the rule. The USCIS final rule would create a wage-based selection process for the H-1B lottery, giving priority for lottery selection to those H-1B applicants who are paid the highest wages. The lawsuit was filed in the U.S. District Court for the District of Columbia (Humane Society of New York, et al. v. Mayorkas, et al., 5/17/21).
May Visa Bulletin is Out; Significant Forward Movement for China and India in Employment Context
The U.S. Department of State has published the May visa bulletin, and there are significant advances for several categories. USCIS has stated that Final Action Dates must be used for all employment-based preference categories. In the family context, F2A applicants may file using Final Action Dates. All other family-sponsored preference categories must use Dates for Filing.
The May visa bulletin shows great forward momentum in multiple areas in the employment-based permanent residence context. EB-1 remains current for all countries of chargeability. In EB-2, the cutoff date for India advances to August 1, 2010, while EB-2 China moves ahead to December 1, 2016. EB-2 remains current for all other countries of chargeability. EB-3 India moves up to February 1, 2011 and EB-3 China’s cutoff date advances to May 15, 2018. EB-3 remains current for all other countries of chargeability.
Wondering if your priority date is current, or just starting the permanent residence process? Contact CYA today to schedule a consultation with one of our attorneys!
ICE Extends I-9 Compliance Flexibility Due to COVID-19
U.S. Immigration and Customs Enforcement (ICE) will extend the flexibilities pertaining to Employment Eligibility Verification (Form I-9) compliance that were announced in 2020, due to the COVID-19 pandemic. This extension includes guidance for employees hired on or after April 1, 2021 and who are working exclusively in a remote setting as a result of COVID-19 policies and precautions. Such employees are temporarily exempt from the physical inspection requirements associated with Form I-9 until the earlier of the following: the employees undertake non-remote employment on a regular, consistent, or predictable basis, or the extension of the flexibilities related to such requirements is terminated. The I-9 compliance flexibility policy is being extended until May 31, 2021.
DHS had previously announced that it would exercise prosecutorial discretion to defer the physical presence requirements associated with Form I-9 under section 274A of the Immigration and Nationality Act, as a result of precautions implemented by employers and employees associated with COVID-19. This policy, however, only applies to employers and workplaces that are operating remotely. If there are employees physically present at a work location, there are no exceptions at this time for in-person verification of identity and employment eligibility documentation for Form I-9.
Biden Administration Rescinds Presidential Proclamation 10014; Immigrant Visa Ban Revoked but Nonimmigrant Visa Ban Remains in Effect
On April 22, 2020, former President Trump signed Proclamation 10014 temporarily suspending the entry of certain immigrants into the United States in light of the COVID-19 pandemic. On June 22, 2020, former President Trump signed Proclamation 10052 continuing Proclamation 10014 issued on April 22, 2020, and suspending the entry of certain nonimmigrants. On December 31, 2020, former President Trump issued a proclamation continuing Proclamations 10014 and 10052 until March 31, 2021.
On February 24, 2021, President Biden rescinded Presidential Proclamation 10014 which prohibited the entry of certain immigrants into the United States due to possible harm to economic interests due to the COVID-19 pandemic. With President Biden’s February 24, 2021 order, the immigrant visa ban has now been revoked. However, at this time Presidential Proclamation 10052 suspending the entry of nonimmigrant workers for the same reasons remains in place. With the rescission of Presidential Proclamation 10014, the Department of State provided instructions to visa applicants who were previously subject to the ban on entry due to PP 10014. The Department of State has also updated its guidance related to National Interest Exemptions (NIEs) for individuals subject to Presidential Proclamation 10052; eligibility requirements for NIEs appear to be unchanged, however.
The geographic COVID-19 related Presidential Proclamations 9984, 9992, and 10143, which suspend entry into the United States of foreign nationals who have been physically present in the People’s Republic of China, Islamic Republic of Iran, Schengen Area, United Kingdom, Republic of Ireland, Brazil, and South Africa, in the 14-day period before seeking entry into the United States, remain in effect, with limited exceptions.
The attorneys at Curray York & Associates will continue to closely monitor potential changes to the COVID-19 related travel bans, and provide updates when possible. For specific questions, please contact our office to schedule a consultation with one of our attorneys.
U.S. District Court Sets Aside DHS Specialty Occupation and DOL Wage Rules for H-1Bs
In October 2020, the Department of Homeland Security (DHS) issued the Strengthening the H-1B Nonimmigrant Visa Classification Program Interim Final Rule revising the definition of “specialty occupation” for purposes of the H-1B visa program. Concurrently, the Department of Labor (DOL) issued the Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States Interim Final Rule, amending the regulations governing permanent labor certifications and Labor Condition Applications to incorporate changes to the computation of prevailing wage levels. Together, these rules would have set aside decades-old requirements for the H-1B program, both in terms of the definition of specialty occupation and in the computation of prevailing wage levels.
On December 1, 2020, the U.S. District Court for the Northern District of California set aside the DHS interim final rule and the DOL interim final rule in Chamber of Commerce, et al., v. DHS, et al. The court found that the DHS and DOL H-1B wage rules were “promulgated in violation of 5 U.S.C section 553(b),” which defines the Administrative Procedures Act’s notice and comment requirements for agency rulemaking. USCIS announced on December 4, 2020 that it will fully comply with the court’s decision. In response to the court’s order setting aside the DOL Interim Final Rule, the DOL’s Office of Foreign Labor Certification (OFLC) announced its timeline for updating the FLAG system to incorporate the pre-IFR wage data. DOL must make changes to the FLAG system modules to replace the 10/8/2020-6/30/2021 wage source year data that was implemented under its interim rule, with the OES prevailing wage data that was in effect on October 7, 2020. DOL has also provided details on how to seek a redetermination of any prevailing wage determinations issued in accordance with the DOL Interim Final Rule wage system.
The attorneys at Curray York & Associates will continue to closely monitor potential changes to the H-1B program and provide updates when possible. For specific questions, please contact our office to schedule a consultation with one of our attorneys.