Health Care Blog

U.S.embassies and consulates have begunusing a tiered approach to manage their substantial backlog of immigrantvisas.  Many embassies and consulatescontinue to have a significant backlog of all categories of immigrant visas.

Tier One: Immediate relative intercountryadoption visas, age-out cases (cases where the applicant will soon no longerqualify due to their age), and certain Special Immigrant Visas (SQ and SI forAfghan and Iraqi nationals working with the U.S. government)

Tier Two: Immediate relative visas; fiancé(e)visas; and returning resident visas

Tier Three: Family preference immigrant visasand SE Special Immigrant Visas for certain employees of the U.S. governmentabroad

Tier Four: All other immigrant visas,including employment preference and diversity visas

While the Posts willgenerally use these tiers in order, where possible, Posts are scheduling someappointments within all four priority tiers every month.  Still the State Department recognizes that visaapplicants, “particularly those in Tiers Three and Four, will face continueddelays.”

The Department of State has just issued the May 2020 Visa Bulletin. This is the eighth Visa Bulletin of FiscalYear 2021. This blog post analyzes this month’s Visa Bulletin.

Visa Bulletin

Table A: Final Action Dates — Applications with these dates may be approvedfor their Green Card (Permanent Residency card) or Immigrant Visa appointment.

Table B: Dates of Filing

The USCIS will be using the Table A: Final Action Dates chart forI-485 employment-based filings. A beneficiary must be current on the aboveTable A chart in order to file their I-485, Adjustment of Status applications.  USCIS Adjustment of Status page.

MU Law Analysis

Both the Philippines and Worldwide (All Other) EB-3 continueto be current. Our opinion remains that these categories will stay current forthe foreseeable future.

India EB-1 remains current, which continues to lead to extra visas willflowing down to India EB2 and EB3.  IndiaEB-2 again moved ahead, this time by 3 months.  EB-3 also jumped up.  It moved 6 months, into 2011.  We could see favorable processing times forthe rest of 2021.

China EB-2 and EB-3 again both moved forward by a few months, a trend that shouldcontinue.  China EB-1 remainsreflecting the paucity of visas that were issued under the last year of theTrump presidency and the COVID pandemic.

CGFNS has afast-track “CertifiedStatement” Visa Screen for foreign nurses who are educated in the US, and afew other English speaking countries (see below). 

FranklinUniversity, an Ohio college, offers graduate nursing degree, such as Bachelorsof Science in Nursing (BSN) to foreign nurses who received a 2 year degree inother countries, such as the Philippines. CGFNS was trying to force these BSNs to file for the more expensive andtime consuming regular Visa Screen, instead of the Certified Statement.  

FranklinUniversity tried to convince CGFNS that making these nurses apply for thecostlier and time-consuming process was contrary to the relevant USCIS’regulation.  When CGFNS refused to allowthese nurses to apply for the Certified Statement, Franklin Universitysued.  This week, the court heldthat CGFNS must issue Certified Statements to these US-graduates of BSNs. 

OnMarch 31, 2021, Presidential Proclamation 10052 expired. PP 10052 prohibited the issuance ofcertain H-1B, H-2B, L-1, J-1, H-4, L-2, and J-2 visas for entry to the US at USEmbassies and Consulates due to possible economic harm to the US during theCOVID-19 Pandemic.

Allconsular processed cases falling under the criteria of PP 10052 may now resumeprocessing. Any visa applicant previously refused a visa due to PP 10052 mustreapply with a new application and new fee. However, many US embassies arestill operating on reduced staff, due to the COVID-19 pandemic. Therefore, weanticipate that there will continue to be delays in obtaining nonimmigrant visainterviews at Embassies and Consulates.

DOS has updated its announcementand FAQs on the phased resumption of visa services  following the expiration of PresidentialProclamation 10052.

MusilloUnkenholt is pleased to report that the HealthcareWorkforce Resilience Act has been reintroduced into Congress.  The HWRA is smart, positive legislation thatwill increase the supply of nurses and doctors into the US.  These two occupations are among the shortestsupplied occupations by US workers. Musillo Unkenholt and the AAIHR have been working closely with theseoffices for the last two months, assisting congressional staffers draft thislegislation. 

If the HWRA becomes law, allnurses and doctors whose visa applications are currently retrogressedimmediately become current.  Likewise,any nurse or doctor whose I-140 is filed before 90 days after the expiration ofthe President’sEmergency Declaration on COVID-19 is also expected to have aretrogression-free visa, although there is an overall quota of 25,000 visas forRNs and 15,000 visas for MDs. The legislation contains language asking theUSCIS and Embassies and Consulates to expedite these petitions.  The HWRA admirably contains US workerprotections, guaranteeing that no US worker is displaced. 

The HWRA has a strong set oforiginal co-sponsors in the Senate: Sens. Durbin, Coons, Lehay (Ds) and Cornyn,Young, Collins (Rs). This is an impressive bipartisan set of Senators withdecades of experience leading legislative initiatives.  Companion legislation will be introduced intothe House by U.S. Representatives Brad Schneider (D-IL-10), Tom Cole (R-OK-04),Tom O’Halleran (D-AZ-01), and Don Bacon (R-NE-02). 

Specifically, the HealthcareWorkforce Resilience Act:

* Recaptures unused visas fromprevious fiscal years for doctors, nurses, and their families

* Exempts these visas from countrycaps

* Requires employers to attestthat immigrants from overseas who receive these visas will not displace anAmerican worker

* Requires the Department ofHomeland Security and State Department to expedite the processing of recapturedvisas

* Limits the filing period forrecaptured visas to 90 days following the termination of the President’sCOVID-19 emergency declaration

TheUS Department of Labor (DOL) has delayed the new rule which would change themethod for calculating prevailing wages for 18 months. 

InOctober2020, the DOL announced an Interim Rule which changed the computation ofwage levels and dramatically increased prevailing wages.  The October 2020 Interim Rule was later struckdown by the courts, but was later re-issued as a Final Rule in January2021. 

OnJanuary 14, 2021 the DOL published its FinalRule regarding increases in prevailing wages for H-1B, H-1B1, E-3, andGreen Card cases. You can find our blog post summarizing the Final Rule here. 

TheFinal Rule was initially set to take effect May 14, 2021 and wages issued afterJuly 1, 2021 would be impacted. However, the DOL has postponedthe effective date of the Final Rule by 18 months until November 14, 2022. TheDOL delayed the start of the transition period to the new prevailing wagelevels from July 1, 2021 to January 1, 2023. 

TheDOL is implementing this delay to allow for more time to fully analyze thelegal and policy issues raised by the rule, as well as to validate theprevailing wage data. This official delay is expected to be effective on March22, 2021.

TheDepartment of State has just issued the April 2020 Visa Bulletin. This is the seventh VisaBulletin of Fiscal Year 2021. This blog post analyzes this month’s VisaBulletin.

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 will be using the Table A: Final Action Dates chart forI-485 employment-based filings. A beneficiary must be current on the aboveTable A chart in order to file their I-485, Adjustment of Status applications.  USCIS Adjustment of Status page.

MU Law Analysis

Both the Philippines and Worldwide (All Other) EB-3 continueto be current. Our opinion remains that these categories will stay current forthe foreseeable future.

India EB-1 became current, which led to extra visas will flowing down toIndia EB2 and EB3.  Indeed, India EB-2moved ahead almost a year and half into May 2011.  EB-3 also jumped up. It is now is2014.  We could see favorableprocessing times for the rest of 2021.

China EB-2 and EB-3 again both moved forward, this time by months, a trend that shouldcontinue.  China EB-1 is nowcurrent reflecting the paucity of visas that were issued under the last year ofthe Trump presidency. 

USCISannounced on March 9 that it will no longer apply the Public Charge FinalRule.  The Public Charge Final Rule was published in October 2019 andsubjected allI-485 applicants to a wealth test, requiringapplicants to list and document all assets and debts on Form I-944. Effective March 9, I-485 applicants no longer need to submit Form I-944.  

USCIS will not review any I-944 forms already submitted,and applicants can disregard any aspect of a Request for Evidence of Notice ofIntent to Deny that requests information related to the Public Charge FinalRule.  

The Public Charge Final Rule had also required nonimmigrantvisa applicants to answer questions about the receipt of public benefits onapplications for extension of stay or change of status.  Nonimmigrant visaapplicants now no longer need to answer these questions relating to the receiptof public benefits.  

USCIS will revert to the prior guidance outlined in the1999 Interim Field Guidance in place prior to the introduction of the PublicCharge Final Rule.  

Beginning March 2, 2021,H-1B Electronic Registration for cap-subject petitions will take place. Whilethis marks the second year that USCIS has utilized electronic registration, theprocess remains much the same as last year. 

Employers that did notparticipate in last year’s electronic registration process will need to first createan H-1B Registrant account on MyUSCIS.  Employers that did participate last year willbe able to utilize their existing account.  

The registrationwindow will open at 12:00pm Eastern Time on March 9, 2021 and end at12:00pm Eastern Time on March 25, 2021. During this window, all potentialbeneficiaries must be registered by their employer to be considered for H-1B selectionin the cap.  

USCIS intends to informemployers by March 31, 2021 which beneficiaries were selected and full H-1Bpetitions may be filed no earlier than April 1, 2021. While the registrationprocess only requires minimal information about each beneficiary, thebeneficiary must meet all eligibility requirements at the time of filing the fullH-1B petition. 

Please contact MU Lawshould you have any questions or require any assistance in filing H-1Bcap-subject registrations.