19 February

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U.S. Department of Labor Processing Times of PERMs and Prevailing Wages

Benjamin Brueggemann, Senior Supervising Attorney Increased processing times is the name of the game at the U.S. Department of Labor. This not only goes for PERM applications, but also PERM Audit reviews and Prevailing Wage Requests. The U.S. Department of Labor (DOL) is currently processing PERM cases received in July 2020. Specifically, the DOL states that the average perm application takes about 207 days, which is about 6.9 months. This is extremely high, even for U.S. Department of Labor standards. Historically, PERM processing times have ranged from 3 to 5 months, but now they are at almost 7 months. The hope is that we will see a shift back to more “normal” processing times in the year 2021 as the U.S. Department...

19 February

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President Biden’s Immigration Updates & Proposed Immigration Legislation

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in Biden, Legislation, USCIS-General

James K. Gotcher, Senior Partner Brandon D. Neuman, Attorney Katie W. Wu, Attorney Although having only been recently inaugurated as the 46th president of the United States on January 20th, 2021, President Joseph R. Biden immediately began the rollout of his immigration agenda, promising an end to the strict immigration policies of the preceding Trump Administration. In his first day in office, President Biden signed a series of executive actions and memoranda that reversed the course of immigration, including, but not limited to: Reversing the travel ban on predominantly Muslim countries. In an executive order, President Biden moved to repeal a prior executive order from the Trump Administration that restricted entry into the United States from predominantly Muslim countries. In addition, he instructed the State...

19 February

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Adjustment of Status Processing (January 2021)

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in AOS, Green Cards, USCIS-General

Michelle A. Choe, Attorney In September of 2020, the October visa bulletin was released which aggressively advanced the filing dates for the EB-3 category in India and China. This significant movement caused USCIS to receive an influx of I-140 downgrade petitions and Adjustment of Status applications. The USCIS received more applications than it could handle in a reasonable time. As a result, our office is still waiting on receipt notices for cases that were filed in October 2020. On December 15, 2020, The USCIS issued a statement that confirmed it is still experiencing delays in issuing receipt notices for filed petitions and applications. Although the statement asserts that the receipt notices should be issued within 30 days of the filing, our office is expecting a 60–90-day delay. In addition to delays in issuing receipt notices, we...

04 February

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USCIS Changes H-1B CAP Rules

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in H-1B, USCIS-General

Employer Alert: USCIS Changes H-1B CAP Rules On January 7, 2021, USCIS announced that it will promulgate a Final Rule changing how it administers the H-1B lottery for new H-1B visas. The rule will change the lottery process from the system in place for many years, where registrants are selected without regard to the merits of their cases, to one where USCIS will give preference to registrations whose proposed salaries are relatively high in comparison to others. In brief, the rule will result in an increased number of selections for relatively highly paid workers and a reduction in selections for lower paid workers. The effect,...

03 August

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USCIS and Department of Labor Enter into Memorandum of Agreement

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in US DOL, USCIS-General

Employer Alert: USCIS and Department of Labor Enter into Memorandum of Agreement The USCIS and Department of Labor (“DOL”) have announced that they have entered into a Memorandum of Agreement (“MOA”) where they will share access and information to the various immigrant and nonimmigrant records and data found within their respective systems. Under this MOA, the Secretary of Labor has been encouraged to utilize a rarely used power to personally initiate investigations into matters raised by USCIS where it appears violations of US DOL regulations may have occurred. This has the potential to create more vigorous and deeper investigations into H-1B employers. This MOA follows from President Trump’s June 22, 2020, Executive Order and per the announcement by USCIS and DOL, it “will...

13 February

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H-1B CAP for FY2021

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in H-1B, USCIS-General

On February 6, 2020, the USCIS conducted a webinar for employers planning to register their hopeful candidates for the H-1B lottery this year. USCIS showed screenshots of the employer registration process and responded to some questions from the public. The registration window will open at noon, Eastern, on March 1 and close at noon, Eastern, on March 20, 2020. USCIS committed to notifying registering companies and their attorneys by March 31, 2020 of the results of the lottery and selection process. They also confirmed that the filing window for selected candidates will open on April 1, and remain open for 90...

07 February

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US District Court Permanently Enjoins F-1 Unlawful Presence Memo

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in F-1, Litigation, USCIS-General

By Richard A Harding

A US District Court has invalidated a controversial USCIS policy shift.

In 2018, USCIS published a policy memorandum regarding when students and exchange visitors would begin to accrue unlawful presence. Under that memorandum, students who violated their F-1, J-1, or M-1 status in any way would immediately be considered to be unlawfully present in the United States, even without a formal decision by a USCIS or other federal official. This raised concerns among immigration practitioners, students, educators, and others about the effects this could have on students who unknowingly committed minor or technical violations of their status and thereby began accruing enough unlawful presence to trigger the 3- or 10-year bars.

These concerns drove several universities and associations to file a lawsuit in US District Court in 2018 (Guildford College v. Wolf, 18-CV891, N.D.N.C.) seeking a preliminary and ultimately a permanent injunction to prevent USCIS from enforcing that memorandum. The Court granted a preliminary injunction in May 2019 to stop USCIS from enforcing the memorandum pending conclusion of the case. Yesterday, after hearing arguments from the United States and the plaintiffs, the Court ordered the imposition of a permanent injunction against enforcement of the memorandum.

21 December

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USCIS is raising fees, effective December 23, 2016

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in USCIS-General

The new fees will apply to all petitions and applications physically received on or after Friday, December 23, 2016. The following is a partial list of the new fees by form type: I–90 Application to Replace Permanent Resident Card $455 I–102 Application for Replacement/Initial Nonimmigrant Arrival-Departure Document. $445 I–129 Petition for a Nonimmigrant Worker $460 I–129F Petition for Alien Fiance´(e) $535 I–130 Petition for Alien Relative $535 I–131 Application for Travel Document $575 I–140 Immigrant Petition for Alien Worker $700 I–290B Notice of Appeal or Motion $675 I–485 Application to Register Permanent Residence or Adjust Status $1,140 I–765 Application for Employment Authorization $410 I–824 Application for Action on an Approved Application...

21 December

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Visa posts to revoke nonimmigrant visas for individuals arrested for or convicted of DUI

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in State Department

The Department of State’s Visa Office sent the following guidance to overseas consular posts on September 9, 2016: Guidance Directive 2016-03 – 9 FAM 403.11-3 – VISA REVOCATION “The Department would like to bring to your attention a policy implemented on November 5, 2015, which requires consular officers to prudentially revoke (i.e., without making a determination that the individual is inadmissible) nonimmigrant visas of individuals arrested for, or convicted of, driving under the influence or driving while intoxicated, or similar arrests/convictions, that occurred within the previous five years, as detailed in 9 FAM 403.11-3(A). This requirement does not apply when the arrest/conviction occurred...

21 December

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How Immigration Statutes are Implemented

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in Uncategorized

A great deal of confusion concerns what federal agencies may do. Before an agency may do anything, there must be a Congressional statute authorizing the agency to act. Congress might pass a law that provides: “The status of an alien who was inspected and admitted or paroled into the United States or the status of any other alien having an approved petition for classification as a VAWA self-petitioner may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if . . .” [Emphasis...

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