Facebook

 

Twitter

 

LinkedIn

 

News

Stay Current on Immigration Issues

Visa Bulletin Update: USCIS Flips Script and Opts To Use Final Action Date Chart for Adjustment of Status Filings

Benjamin Brueggemann, Senior Supervising Attorney  As of the January 2021 Visa Bulletin, USCIS opted to flip the script and move forward with adjustment of status filings using the Final Action Date Chart, rather than the Filing Date Chart as they have done since the beginning of the new Fiscal Year, which started October 2020.  For employment-based cases, USCIS has, historically, always used the Filing Date Chart at the beginning of the fiscal year and then gradually switched to using the Final Action Date chart for adjustment of status filings.  Although this is not a new concept, the timing of when USCIS chooses the Final Action...

Continue reading

Travel Ban

Travel Ban  David B. Raft, Senior Supervising Attorney  Over the past 150 years, the United States considered and implemented numerous bans on the ability for individuals or certain groups of individuals to be able to travel to the United States.  These “travel bans” have been plentiful.  Most are long forgotten in the annals of history, but some, such as the Chinese Exclusion Act of 1882, do stand out.  From the perspective of the Administration in power at the time, they felt there were legitimate reasons for such travel bans.  From the lens of a historian, many seem unjustified and outright racist in nature today.  Over the past four years, the...

Continue reading

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...

Continue reading

President Biden’s Immigration Updates & Proposed Immigration Legislation

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...

Continue reading

Adjustment of Status Processing (January 2021)

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...

Continue reading

USCIS Changes H-1B CAP Rules

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,...

Continue reading

USCIS and Department of Labor Enter into Memorandum of Agreement

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...

Continue reading

USCIS Announces Rescission of Restrictive H-1B Policies

On June 17, USCIS announced that it was rescinding two policy memoranda that formed the backbone of its heightened scrutiny of H-1B petitions.  This appears to follow directly from USCIS’ major loss in the ITServe Alliance litigation and the related settlement. The policy announcement is a sweeping reduction in the burden of evidence imposed upon H-1B employers.  Under this policy, USCIS officers are directed to no longer require: Itineraries covering the entire 3-year H-1B period. Contracts between the Petitioner and its clients. Evidence of day-to-day work assignments. Further, USCIS officers are directed to limit or shorten the approval period of H-1B petitions...

Continue reading

H-1B CAP for FY2021

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...

Continue reading

US District Court Permanently Enjoins F-1 Unlawful Presence Memo

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.