Health Care Blog

MU Law will be hosting a FREEwebinar for our clients and friends on Tuesday, February 8, 2022 at 3PM Eastern(2PM Central). Interested clients and friends can register for our webinar by clicking on the link below.

REGISTER HERE

Join us for this FREE webinar tolearn more about:

• H-1B Cap Basics, RegistrationProcess, and Projections
• What is an H-1B SpecialtyOccupation?
• H-1B Dependency
• Special Issues for StaffingCompanies and Third-Party Placements
• Cap-gap for F-1s as well as CPT/OPTmaintenance
• Employer-Employee relationships,end-client documentation
• Green Card instead of an H-1B
• Top 10 things H-1Bemployers can do to stay compliant 

Citing the exceptionallyhigh number of employment-based (“EB”) green cards available for thecurrent fiscal year, the USCISannounced yesterday that it is requesting green card applicants interfile fromEB3 to EB1 or EB2, if an applicant is eligible for EB1 or EB2. This will allowthe USCIS to maximize the number of EB green cards issued.

Also called a“transfer of underlying basis,” interfiling allows a green card applicant tochange the category (EB3 or EB2) under which the green card is issued. Anapplicant who originally filed an application under EB3 but also qualifies forthe EB1 or EB2 is now encouraged to interfile a request for the USCIS to changethe preference category.

The USCISencourages an applicant who qualifies for both the EB2 and EB3 to interfile to transferhis/her I-485 from EB3 to EB2 to ensure that the EB2 is used.

Pleasecontact your MU attorney if you would like to interfile to change your EBpreference.

Visa Bulletin

Table A: Final Action Dates — Applications with these dates may beapproved for their Green Card (Permanent Residency card) or Immigrant Visaappointment.

Table B: Dates of Filing

The USCIS is expected to use the Table B chart for I-485employment-based filings. See: USCISVisa Bulletin Dates

MU Law Analysis

This month again there was good news and bad news for theretrogressed EB-2 and EB-3 categories. The DOS did not move the Indian and Chinese EB-3s.  However, the dates for India and ChinaEB-2 did progress.  India EB-2 movedahead by about six months.  China EB-2 advancedby six weeks. 

The news remains positive for Philippines and Worldwide EB-3,where dates held at Current.  They areexpected to stay Current for the foreseeable future.

The Department of Homeland Security haswithdrawn its H-1B Selection Final Rule as of December 21, 2021. The Rule wasvacated by a US District Court in September 2021, and pursuant to that order, theDHS has withdrawn the Rule in the FederalRegister.

First issued on January 8, 2021, theRule created a new ranking order of H-1B CAP registration entries, rather thanusing a random lottery, in order to prioritize the highest OES prevailing wagelevels. Musillo Unkenholt’s blog about the January 2021 rule can be found here.

The rule was initiallyintended to go into effect in time for the March 2021 CAP registration period,but it was ultimately delayed in February 2021 andnever went into effect for any H-1B CAP lottery.

OnDecember 15, 2021, The Department of State (DOS), provided updated guidance inregards to National Interest Exemptions (NIEs).

TheDOS confirmed that only in extremely rare circumstances will NIEs be grantedfor travelers subject to the Southern Africa travel ban, Presidential Proclamation 10315 (PP 10315). The DOS stated that the bar isvery high for a NIE for PP 10315 and some posts will not even be accepting NIErequests, due to the very high standard.

Thoseseeking an NIE under the PP 10315 should contact the local post and provide asmuch information as possible to request a NIE to PP 10315. DOS confirmed thatonly under extreme or urgent circumstances, where the visa applicant documentsa clear humanitarian need, or where the issue is clearly within the nationalinterest of the United States will a NIE be granted.

Inaddition, the DOS confirmed that NIEs are no longer valid that were grantedunder Presidential Proclamations that have been rescinded.

The Department of State hasjust issued January 2022 Visa Bulletin.  This isthe fourth Visa Bulletin of Fiscal Year 2022. This blog post analyzes thismonth’s Visa Bulletin.

Visa Bulletin

Table A: Final Action Dates — Applications with these dates may beapproved for their Green Card (Permanent Residency card) or Immigrant Visaappointment.

Table B: Dates of Filing

The USCISis expected the Table B chart for I-485 employment-based filings. See: USCIS Visa Bulletin Dates

MU Law Analysis

Onceagain, there was good news and bad news for the retrogressed EB2 and EB3categories.  The DOS did not move the Indianand Chinese EB-3s.  On the otherhand, the dates for India and China EB-2, progressed.  India EB-2 moved ahead by a bit over two months.  China EB-2 advanced by three weeks.  These progressions were about half of theprogressions that we saw with the December Visa Bulletin.

The storyremains positive for Philippines and Worldwide EB-3, where dates held atCurrent.  They are expected to stayCurrent for the foreseeable future.

On December 13, 2021, theDepartment of State (DOS) issued a temporary finalrule that provides flexibility for consular officers towaive in-person appearances and in-person oath requirements for certain repeatimmigrant visa applicants.

Immigrant visa applicants whomeet the following criteria, may not need to make another in-person appearancebefore a consular officer for an interview, execution of their application, oroath:

(1) the immigrant visawas issued on or after August 4, 2019;

(2) the applicant didnot travel to the United States on the immigrant visa; and

(3) the applicant seeksand remains qualified for an immigrant visa in the same classification as theexpired immigrant visa.

Consular officers still havediscretion to require applicants that meet these requirements to appearin-person. This temporary rule is in effect from December 13, 2021 throughDecember 13, 2023.

USCIShas announced that it will waive the requirement that the medical exam FormI-693 be signed by the civil surgeon no more than 60 days prior to filing theI-485, Application to Register Permanent Residence or Adjust Status (green cardapplication).  This waiver of the 60-day rule is effective from December9, 2021 until September 30, 2022.  TheI-693 medical exam will continue to remain valid for two years from the date ofthe civil surgeon’s signature, regardless of when the I-485 is filed.

Thispolicy will provide additional flexibility to I-485 applicants and allow themto avoid having to undergo a second medical exam in many instances while stillencouraging applicants to file the I-485 as soon as possible after completingthe medical exam.