USCIS Updates Guidance on Discretionary Factors for Adjustment of Status Applications
U.S. Citizenship and Immigration Services (USCIS) updated its existing policy guidance in the USCIS Policy Manual regarding the exercise of the secretary of the Department of Homeland Security’s discretion in adjudications of adjustment of status applications.
Under the new policy guidance, USCIS officers may examine positive and negative factors including, but not limited to, an LPR applicant’s:
Community standing and moral character.
Family-based and/or community-based ties to the United States.
Immigration status and history.
Business, employment, and skills.
Additional humanitarian concerns.
When the positive discretionary factors about an individual outweigh the negative factors, officers can make a positive decision and approve an LPR application. The converse is also true: USCIS officers may deny an LPR application when the negative discretionary factors outweigh the positive.
Iandoli Desai & Cronin will continue to monitor the situation and provide updates as this new guidance goes into effect.
December Visa Bulletin Continues to Advance but Announces Scheduled Expiration of Two Employment Visa Categories
Each month, the U.S. Department of State (DOS) publishes the Visa Bulletin, listing all "preference" categories for family-based and employment-based immigration and states whether or not a backlog exists for each one. In addition, the immigration categories are then placed into two charts: a “Final Action” chart and a “Dates for Filing” chart.
For December 2020, USCIS has indicated that for Employment-Based (EB) immigration, the “Dates for Filing Applications” chart should be used in establishing eligibility to file the I-485 Adjustment of Status (“green card”) applications. This provides significant advancement in nearly all EB preference categories. This means that those who filed an EB Immigrant Petition [Form I-140] on or before the date given in the Visa Bulletin are able to file for permanent resident status [Form I-485].
Last month saw significant movement for China and India in the EB-1 preference category, which advanced to November 1, 2020, resulting in many applicants from those countries filing Form I-485 to apply for permanent residency. That activity will continue in December where the category remains current, but it is unclear for how long that trend will continue.
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 Form I-485 applications. China and India have held at October 1, 2016 and May 15, 2011, respectively.
The EB-3 preference category is now “current” for all countries other than China and India which means that individuals in these categories may also immediately file Form I-485 applications. China and India continue to hold at June 1, 2018 and January 1, 2014, respectively.
Because of the difference in dates between the Filing and Final charts, Form 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. There are substantial benefits for some in applying sooner rather than later including employment authorization for dependents and the ability to travel internationally on Advance Parole instead of continually applying for visas at U.S. Embassies.
Furthermore, December Visa Bulletin announced the expiration of both the Employment Fourth Preference Certain Religious Workers (SR) and Employment Fifth Preference Pilot (I5 and R5) Categories on December 11, 2020. If there is legislative action extending these categories, the December dates would be applied for the entire month. If there is no legislative action extending this category, the category will become “Unavailable” effective midnight December 10, 2020. This issue is common due to the need for Congress to reauthorize these programs annually, typically as part of budget discussions.
If you have questions about planning, please feel free to reach out and schedule a consultation with one of the attorneys (info@iandoli.com).
Court Holds That a TPS Recipient Is Eligible to Adjust to Legal Permanent Resident Status in states covered by the Eighth Circuit
On October 27, 2020, a Federal Court of Appeals in the 8th Circuit held that a noncitizen who entered the United States without inspection or admission, but later received Temporary Protected Status (TPS), is deemed “inspected and admitted” for purposes of adjusting their status to that of lawful permanent resident (LPR). The court thus affirmed the district court’s decision reversing USCIS’s denial.
This is an important victory for TPS beneficiaries residing in the in the 8th Circuit because it reaffirms the fact that such individuals are considered “inspected and admitted” under the law when applying for adjustment of status. Accordingly, USCIS has no lawful basis to deny applications for adjustment of status filed by TPS beneficiaries in the 8th Circuit on grounds that they entered the United States without inspection. (Velasquez, et al. v. Barr, et al., 10/27/20). So far, the 6th, 9th and now the 8th circuits are in agreement on this issue. Therefore, eligibility to file permanent residence is limited to those living in these jurisdictions.
Department of Homeland Security Cracks Down on Alleged Optional Practical Training Fraud
On October 21, 2020, Immigration and Customs Enforcement (ICE) arrested15 nonimmigrant F-1 status students for OPT-related fraud in an investigation called Operation OPTical Illusion. As reported by Inside Higher Ed, the Acting Director of USCIS Kenneth Cuccinelli “warned of coming actions against DSOs or designated school officials, employees of individual colleges who are responsible for maintaining international students' records in a federal government database and overseeing their institutions’ compliance with federal student visa regulations, including the OPT regulations.
Cuccinelli said DHS expects to terminate ‘a fair number’ of designated school officials. ‘What we have seen in this area is what I would call not likely complicit, but a willful ignorance or a level of negligence that leads us down the path of terminating their role as designated school officials,’ he said.”
Department of State Issues Update on Court Order Regarding President Proclamation on H-1B visa issuance
On October 9, 2020, the Department of State posted on its website guidance about how it will comply with a federal court ruling enjoining the operation of section 2 of Presidential Proclamation (PP) 10052, which among other things bans the issuance of H-1B visas, against the plaintiffs in the suit. The plaintiffs in the suit include membership organizations such as the National Association of Manufacturers, the U.S. Chamber of Commerce, and the National Retail Federation. Therefore, any J-1, H-1B, H-2B, or L-1 applicant who is either sponsored (as an exchange visitor) by, petitioned by, or whose petitioner is a member of, one of the above named organizations is no longer subject to PP 10052’s entry restrictions.
The Department of State provides:
H-1B, H-2B, and L-1 Applications: Applicants must be prepared to demonstrate that a U.S. employer/petitioner is a named plaintiff or member of any of the named plaintiff associations. Applicants may provide evidence directly to the consular officer at the time of visa interview. Applicants may provide to a consular officer a letter issued by one of the named plaintiffs to the applicant’s petitioner attesting that the petitioner is a member in good standing of one of the named plaintiff associations. Consular officers will take steps to independently verify that the petitioner or sponsor is indeed a member of one of the plaintiff associations. Once the consular officer is able to confirm membership, they will be able to process the application to conclusion without regard to PP 10052.
Spouse and Child (derivative applications): The NAM court’s order also enjoined the government from enforcing section 2 of Presidential Proclamation (PP) 10052. Section 2 of PP 10052 extended entry restrictions to H-4, J-2, and L-2 applicants who would accompany or follow to join the principal H-1B, H-2B, J-1, or L-1 applicants. Accordingly, consular officers will not apply PP 10052 to these derivative applicants if the principal applicant is covered by the NAM court’s order. The principal applicant is not required to apply with the derivative applicants and may already be admitted into the United States at the time of their application.
Department of State Proposes to Eliminate ‘B-1 in Lieu of H’ Visa
On October 21, 2020, the Department of State announced a proposal to eliminate the B-1 visa “in lieu of” an H-1B specialty occupation. B-1 visa holders are prohibited from employment in the US and have a limited scope of permissible activities. Currently, the ‘B-1 in Lieu of H’ Visa is a viable alternative where a foreign national may qualify for an H-1B visa, but will be entering the United States on a specifically annotated B-1 visa to perform H-1B specialty occupation services for a specific and limited duration, while remaining on foreign payroll.
USCIS Increases Premium Processing Fees
In response to the Emergency Stopgap USCIS Stabilization Act passed by Congress, USCIS increased its premium processing fees on October 19, 2020 from $1,440 to $2,500 for all filings presently eligible for premium processing. The fee for those filing Form I-129 requesting H-2B or R-1 status will only go up to $1,500.
USCIS has yet to announce any expansion of premium processing, e.g. for national interest waiver and intracompany manager green card petitions, as permitted in the Act. Iandoli Desai and Cronin will continue to monitor and provide updates when available.
November Visa Bulletin Advances
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. In addition, the categories are folded into two charts: “Final Action” chart and a “Dates for Filing” chart for Family-Based immigration and Employment-Based immigration.
For November 2020, USCIS has indicated that for Employment-Based immigration, the “Dates for Filing Applications” chart should be used in establishing eligibility to file the I-485 Adjustment of Status petitions. This provides significant advancement in nearly all preference categories. This means that those who filed an Immigrant Petition [Form I-140] on or before the date given in the Visa Bulletin are able to file for permanent resident status [Form I-485].
Last month there was significant movement for China and India in the EB-1 preference category, resulting in many applicants from those countries filing Form I-485 to apply for permanent residency. That activity will continue in November where the category remains current and it is unclear for how long that trend will continue.
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 Form I-485 applications. China and India have held at October 1, 2016 and May 15, 2011, respectively.
The EB-3 preference category is now “current” for all countries other than China and India which means that individuals in these categories may also immediately file Form I-485 applications. China and India continue to be June 1, 2018 and January 1, 2015, respectively.
Because of the difference in dates on the two charts, Form 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. There are substantial benefits for some in applying sooner rather than later including employment authorization for dependents and the ability to travel internationally on Advance Parole instead of continually applying for visas at U.S. Embassies.
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 Notice of Creating Wage Level Selection Process for H-1Bs
On October 28, 2020, Department of Homeland Security (DHS) proposed to replace the H-1B CAP random selection process with a wage-based selection process based on the highest Occupational Employment Statistics (OES) prevailing wage level that the proffered wage equals or exceeds for the relevant Standard Occupational Classification (SOC) code and area(s) of intended employment. The proposed rule was published on November 2, 2020 and comments on the rule must be submitted on or before December 2, 2020.
Please note that this rule will NOT take effect until a Final Rule is published and made effective.
The following is a list of some of the key provisions of the proposed rule:
If more registrations are received during the annual initial registration period than necessary to reach the applicable numerical allocation, USCIS will rank and select the registrations received on the basis of the highest OES wage level that the proffered wage equals or exceeds for the relevant SOC code and in the area of intended employment, beginning with OES wage level IV and proceeding in descending order with OES wage levels III, II, and I.
If the proffered wage falls below an OES wage level I, because the proffered wage is based on a prevailing wage from another legitimate source (other than OES) or an independent authoritative source, USCIS will rank the registration as OES level I.
After completion of the selection process for the regular 65,000 H-1B cap, USCIS will utilize the same ranking and selection process to meet the advanced-degree exemption if a sufficient number of registrations were submitted during the annual initial registration period to reach the advanced-degree exemption.
If USCIS receives and ranks more registrations at a particular wage level than the projected number needed to meet the applicable numerical allocation, USCIS will randomly select from all registrations within that particular wage level to reach the applicable numerical limitation.
If the H-1B beneficiary will work in multiple locations, USCIS will rank and select the registration based on the lowest corresponding OES wage level that the proffered wage will equal or exceed.
Where there is no current OES prevailing wage information for the proffered position, USCIS will rank and select the registration based on the OES wage level that corresponds to the requirements of the proffered position.
The electronic registration form (and the H-1B petition) will be amended to require provision of the highest OES wage level that the proffered wage equals or exceeds for the relevant SOC code in the area of intended employment.
USCIS may deny or revoke approval of a subsequent new or amended H-1B petition filed by the petitioner, or a related entity, on behalf of the same beneficiary, if USCIS determines that the filing of the new or amended petition is part of the petitioner’s attempt to unfairly decrease the proffered wage to an amount that would be equivalent to a lower wage level, after listing a higher wage level on the registration to increase the odds of selection.
For more information, please see AILA’s press statement on this proposed rule. Iandoli Desai & Cronin will continue to monitor the situation and provide updates as the new rule progresses through the Notice and Comment period.
Lawsuits Challenge New Department of Labor Prevailing Wage Rule for H-1Bs
Since Department of Homeland Security (DHS) proposed changes to the Department of Labor’s (DOL) prevailing wage rule for H-1Bs, three separate lawsuits have been filed challenging the rule.
In one, seventeen individual and organizational plaintiffs, represented by the American Immigration Lawyers Association (AILA) and members of AILA's Board of Governors, filed a complaint seeking an injunction to stop the DOL interim final rule changing the prevailing wage rates issued at the beginning of October 2020. A motion hearing for a preliminary injunction is set for November 13, 2020. (Purdue, et. al., v. Scalia, et. al., 10/19/20)
In another, the U.S. Chamber of Commerce, along with the National Association of Manufacturers, the Presidents’ Alliance on Higher Education and Immigration, and other organizations and universities filed a complaint in the U.S. District Court for the Northern District of California against the DHS and DOL H-1B wage rules. A motion hearing is set for November 23, 2020. (Chamber of Commerce, et al., v. DHS, et al., 10/19/20) The complaint notes:
“These rules are extraordinary: If left unchecked, they would sever the employment relationship of hundreds of thousands of existing employees in the United States, and they would virtually foreclose the hiring of new individuals via the H-1B program. They would also gut EB-2 and EB-3 immigrant visas, which provide for employment-based permanent residence in the United States.”
Iandoli Desai & Cronin will continue to monitor the situation and provide updates in future newsletters.