Updates to the FLAG System for the Prevailing Wage and LCA Programs
In November, the Office of Foreign Labor Certification (OFLC) released new features and enhancements for the Foreign Labor Application Gateway (FLAG) System regarding the ability for users to take actions on submitted applications for the Prevailing Wage, H-2A and LCA (H-1B, H-1B1, E-3) programs. Customers will be able to take certain actions on pending Prevailing Wage, H2A and LCA applications under review by OFLC.
Form ETA-9141 (Application for Prevailing Wage Determination):
Request Redetermination for LCA (H-1B, H-1B1, E-3) and PERM prevailing wage applications in the “Determination Issued” status within 30 calendar days from the determination date
Request Center Director Review for H-2B prevailing wage applications in the “Determination Issued” status within 7 business days from the determination date
Request Center Director Review for LCA (H-1B, H-1B1, E-3) and PERM prevailing wage applications in the “Redetermination Affirmed” or “Redetermination Modified” statuses within 30 calendar days of the redetermination date
Form ETA-9035 (Labor Condition Application for Nonimmigrant Workers):
Withdraw pending applications in the “In Process” status
Withdraw pending applications in the “Certified” status
As FLAG continues to evolve its platform, practitioners should always submit a FLAG technical Help Desk ticket at: https://flag.dol.gov/support/contact, as this helps OFLC identify, isolate, and hopefully resolve issues.
Check-in with Department of State’s Charlie Oppenheim regarding the December 2019 Visa Bulletin
EB-1:
In December 2019 Final Action Dates for EB-1 Worldwide advances 6 weeks to July 15, 2018. EB-1 China advances 10 weeks to May 15, 2017, and EB-1 India’s Final Action Date holds at January 1, 2015. All of these movements are consistent with Charlie’s projections which were provided in the October 2019 Visa Bulletin.
In contrast to the unexpected and excessively high demand in EB-2 and EB-3, Charlie continues to see a normal, if not somewhat low, demand level in the EB-1 Worldwide category.
Therefore, he maintains his prediction that EB-1 Worldwide will continue to advance at a pace of up to 3 months for the foreseeable future.
EB-2:
As noted above, EB-2 Worldwide remains current for December, but could retrogress as early as January 2020.
Consistent with Charlie’s predictions, in December the Final Action Date for EB-2 India advances 2 days from May 13, 2009 to May 15, 2009.
EB-2 China advances about 2 months in December to June 22, 2015, with the gap between the final action dates for EB-3 China (November 1, 2015) and EB-2 China, narrowing to just over 4 months.
EB-3:
As noted above, although EB-3 Worldwide will remain current in December, there is a real possibility that this category could have a final action date imposed as early as January 2020.
EB-3 China continues to hold at November 1, 2015 for December, while EB-3 China Other Workers advances 1 month to March 1, 2008.
Both EB-3 India and EB-3 Other Workers India hold at January 1, 2009 for December.
December Visa Bulletin
Each month, the U.S. Department of State (DOS) publishes the Visa Bulletin, listing all "preference" categories and states whether or not a backlog exists for each one.
For December 2019, USCIS has again indicated that the “Dates for Filing Applications,”chart should be used in establishing eligibility to file the I-485 Adjustment of Status petitions. In December, the EB-1 preference category on the Dates of Filing Chart for all countries other than China and India is “current.” This means the I-485 applications may be filed immediately with the Form I-140. China and India remain backlogged to September 1, 2017 and March 15, 2017, respectively.
The EB-2 preference category remains “current” for all countries other than China and India which means that individuals in these categories may immediately file I-485 applications. China and India remain backlogged to August 1, 2016 and July 1, 2009, respectively.
Because of the difference in dates on the two charts, I-485 applications filed now may be pending for lengthy periods of time; however, the opportunity to file the I-485 applications is available now.
If you have questions about planning, please feel free to reach out and schedule a consultation with one of the attorneys (info@iandoli.com).
USCIS Proposed Rule with Adjustments to Fee Schedule and Other Changes
Department of Homeland Security (DHS) proposed a rule which would make changes to the USCIS fee schedule. DHS proposes to adjust USCIS fees by a weighted average increase of 21%, add new fees, and make other changes, including form changes and the introduction of several new forms.
Of particular note, DHS is proposing to separate Form I-129 into several forms and adjust the filing fees per visa type (E, H-1B, L, O, R, etc). Please see below.
Form No.: I-129 E&TN (Proposed)
Form Title: Application for Nonimmigrant Worker: E or TN Classification
Current Fee: $460
Proposed Fee: $705
Difference: $245
Percent Change : 53% increase
Form No.: I-129 H1 (Proposed)
Form Title : Petition for Nonimmigrant Worker: H-1 Classification
Current Fee : $460
Proposed Fee : $560
Difference: $100
Percent Change: 22% increase
Form No. : I-129L (Proposed)
Form Title : Petition for Nonimmigrant Worker: L Classification
Current Fee : $460
Proposed Fee : $815
Difference : $355
Percent Change : 77% increase
Form No. : I-129O (Proposed)
Form Title : Petition for Nonimmigrant Worker: O Classification
Current Fee : $460
Proposed Fee : $715
Difference : $255
Percent Change : 55% increase
Form No. : I-129MISC (Proposed)
Form Title : Petition for Nonimmigrant Worker: H-3, P, Q, or R Classification
Current Fee : $460
Proposed Fee : $705
Difference : $245
Percent Change : 53% increase
Comments to DHS regarding the proposed fee changes are due 12/16/19 and can be made through the Federal Register here
New H-1B Registration Tool
In November, Acting Director of USCIS Ken Cuccinelli stated that he has a fairly high degree of certainty that USCIS will be ready to implement the new e-registration tool for the upcoming H-1B cap season, and that he expects USCIS will make a formal announcement by the end of the year as to whether or not USCIS will move forward with the tool for this upcoming H-1B cap season.
Upon implementation of the e-registration system, petitioners seeking to file H-1B cap-subject petitions, including those eligible for the advanced degree exemption, will first have to electronically register with USCIS during a designated registration period, unless the requirement is suspended. The registration tool will require a $10 non-refundable fee for each H-1B registration submitted by petitioning employers. The registration fee is part of an agency-wide effort to modernize and more efficiently process applications to live or work in the United States.
Iandoli Desai and Cronin, P.C. continues to monitor the e-registration roll out and will provide updates as they become available.
Reminder USCIS Premium Processing Fee Increased
Beginning on December 2, 2019, the premium processing fee increased to $1,440 from the current fee of $1,410 for Form I-129, Petition for a Nonimmigrant Worker, and Form I-140, Immigrant Petition for Alien Worker. Premium processing is an optional service currently authorized for certain petitioners filing Forms I-129 or I-140. The premium processing system allows petitioners to request 15-day processing of these forms if they pay an extra fee.
According to USCIS, this increase reflects the full amount of inflation from the implementation of the premium processing fee in June 2001 through August 2019 based on the Consumer Price Index for all Urban Consumers (CPI-U). USCIS last increased the fee in 2018.
Iandoli Desai & Cronin PC News
IDC attorneys are speaking at several colleges and universities across Massachusetts at the end of the Fall Semester as students start to prepare for Optional Practical Training (OPT) and employment options after OPT.
If your institution is interested in a presentation, please contact Iandoli Desai & Cronin at info@iandoli.com.
Iandoli Desai & Cronin PC News
Iandoli Desai & Cronin P.C. was recognized in the 2020 “Best Law Firms” by U.S. News & World Report. Firms included in the 2020 Edition of “Best Law Firms” are recognized for professional excellence with consistently impressive ratings from clients and peers.
To be eligible for a ranking, a firm must first have a lawyer recognized in The Best Lawyers in America©, which recognizes the top 5% of private practicing lawyers in the United States. Achieving a tiered ranking signals a unique combination of quality law practice and breadth of legal expertise. “Choosing the right law firm can be a vital decision,” said Tim Smart, executive editor at U.S. News & World Report. “The rankings draw on U.S. News’ 35 years of experience evaluating complex institutions to help individuals and companies alike make the best decisions.”
It is International Education Week, November 18-22, 2019 and IDC attorneys are speaking at several colleges and universities across Massachusetts during that week.
If your institution is interested in a presentation, please contact Iandoli Desai & Cronin at info@iandoli.com.
Attorney Mary Walsh, as Co-Chair of the Boston Bar Association's Immigration Section, is hosting an important event about asylum seekers this Friday, November 8th from 12:30-1:30pm at 16 Beacon Street, Boston, MA. Hear from Eunice Rendón, an expert on immigration, violence prevention, public health, and civil safety, who will cover the current challenges and possible options of relief for asylum seekers in transit and remaining in Mexico. She will also discuss the impact of the Department of Homeland Security's "Remain in Mexico" policy. Since the policy took effect, more than 42,000 asylum seekers have been sent back to Mexico to wait until their court cases in the U.S. are heard. All the while, the number of people requesting asylum in Mexico has increased by about 53 percent amid the Administration's effort to push Mexico, Guatemala, El Salvador, and Honduras to accept more migrants, most of whom come from Central American countries.
Speaker Bio: Eunice Rendón is the Executive Director of Agenda Migrante and a researcher in the National System of Researchers of CONACYT (Mexico’s National Council of Science and Technology). Previously, Ms. Rendón served as the Deputy Executive Secretary of Mexico's Executive Secretariate of the National Public Security System, consultant in different international organizations belonging to the United Nations System, and fellow at the National Health Institute in the United States.
For more information or to register for the event, please go to the BBA's website.
TPS extended for Six (6) Countries
The Department of Homeland Security (DHS) announced on November 1, 2019 that the validity of TPS-related documentation for beneficiaries under the Temporary Protected Status (TPS) designations for El Salvador, Haiti, Honduras, Nepal, Nicaragua and Sudan will be extended through January 4, 2021.
The notice automatically extends the validity of Employment Authorization Documents; Forms I-797, Notice of Action; and Forms I-94, Arrival/Departure Record (collectively, TPS-related documentation). The validity dates for the affected countries are:
TPS Designation(s) Current Expiration Date New Expiration Date
El Salvador, Haiti, Nicaragua, and Sudan Jan. 2, 2020 Jan. 4, 2021
Honduras Jan. 5, 2020 Jan. 4, 2021
Nepal Mar. 24, 2020 Jan. 4, 2021
DHS is extending the TPS documentation in compliance with the preliminary injunctions of the Courts. Should the government prevail in its challenge to the Ramos preliminary injunction, the secretary’s determination to terminate TPS for Nicaragua and Sudan will take effect no earlier than 120 days from the issuance of any appellate mandate to the district court. The secretary’s determination to terminate TPS for El Salvador will take effect no earlier than 365 days from the issuance of any appellate mandate to the Ramos district court to allow for an orderly transition for affected TPS beneficiaries.
American Council on Education (ACE) and 43 other higher education associations file amicus brief with the US Supreme Court; November 12, 2019 hearing date with a ruling expected in Spring 2020
An Amicus Brief was filed by the American Council on Education and 43 Other Higher Education Associations in Department of Homeland Security, et al. v. Regents of the University of California, et al. (October 4, 2019)to the Supreme Court of the United States in support of district court decisions that have kept in place the Deferred Action for Childhood Arrivals (DACA) policy, which the Trump Administration rescinded in 2017.
The government claims that its rescission of the policy is not reviewable. Amici argue that the recession of DACA is subject to judicial review and that rescinding DACA will considerably harm colleges and universities and their students by making it far more difficult for promising students to enroll in postsecondary institutions.
Iandoli Desai and Cronin, P.C. will continue to monitor the ongoing litigation and will provide updates as they become available.